Chapter 21 Repurchase Actions as a Waiver of Texas Sovereign Immunity (and the Limits Urged by the Hawkins Dissent)

I. Introduction

In The State of Texas and Kyle Madsen in his Official Capacity as Director of Right of Way v. JRJ Pusok Holdings, LLC (Tex. June 12, 2026), the Supreme Court of Texas addressed whether the State may be sued under Texas Property Code Chapter 21’s “repurchase” provisions when land previously acquired for a public project becomes “surplus.”

The dispute arose after the State acquired JRJ Pusok Holdings, LLC’s property following the initiation of condemnation proceedings and a later settlement (through Rule 11 agreements and a warranty deed). When the State later offered to sell surplus land back, the parties disagreed over the repurchase price: JRJ sought the original price paid; the State sought current market value. JRJ sued in a county court at law.

The central issues, as framed by the dissent, were:

  • Sovereign immunity: Does Chapter 21 contain a “clear and unambiguous” legislative waiver permitting repurchase suits against the State?
  • Statutory trigger: Was the property “acquired through eminent domain,” as the repurchase statute requires, when the acquisition ultimately occurred via negotiated sale?
  • Forum condition: If there is a waiver, is it conditioned on suit being filed in a “district court” rather than a county court at law?

The provided text is Justice Hawkins’s dissent (joined by Justice Sullivan and by Chief Justice Blacklock except as to Part III(A)), which sharply contests the Court’s holding (described by the dissent) that Chapter 21 waives immunity for repurchase claims.

II. Summary of the Opinion (Dissent)

Justice Hawkins would have reversed and rendered judgment for the State on three principal grounds:

  1. No unmistakable waiver: Chapter 21’s repurchase language lacks the traditional and required “clear and unambiguous” waiver indicators (no express “waiver” language and no requirement that the State be made a party), and the phrase “may determine all issues” is characterized as a jurisdictional grant, not a waiver.
  2. Not acquired “through eminent domain”: Because the State obtained title by a negotiated sale (memorialized in a deed stating it was to avoid eminent-domain proceedings), the dissent would hold the repurchase regime never attached.
  3. Wrong court: Even assuming a waiver exists, the dissent treats “district court” in Property Code §§ 21.003 and 21.101(c) as a condition of the waiver. Filing in a county court at law would therefore fall outside any consent to suit.

The dissent criticizes the Court (majority) for finding waiver through a multi-factor approach—constitutional backdrop, statutory context, and practical concerns— rather than applying a bright-line “look for an unambiguous declaration permitting suit” test.

III. Analysis

A. Precedents Cited

1. The “clear and unambiguous” waiver line

The dissent anchors its methodology in the Court’s modern “clear statement” doctrine for immunity waivers, emphasizing that waiver is for the Legislature:

  • Sampson v. Univ. of Tex. at Austin and Government Code § 311.034 are cited for the requirement that any waiver be “clear and unambiguous.”
  • Tex. Dep't of Transp. v. Jones is used to reinforce that immunity from suit bars actions unless the State “expressly consents.” Related citations—Fed. Sign v. Tex. S. Univ. and Mo. Pac. R.R. Co. v. Brownsville Navigation Dist.—situate that rule in the Court’s broader immunity framework.
  • Wichita Falls State Hosp. v. Taylor and Texas Department of Transportation v. City of Sunset Valley are invoked as examples where statutory rights or liability-sounding language did not amount to waiver (illustrating the dissent’s insistence on explicit waiver cues).
  • Tooke v. City of Mexia is cited for rejecting implied waivers from general “sue and be sued” type language and for sovereign immunity’s policy purposes.
  • Hillman v. Nueces County is used to show that even compelling claims fail absent express waiver language.

2. Jurisdictional grants are not waivers

To rebut the majority’s reliance on “may determine all issues,” the dissent leans on:

  • In re Nestle USA, Inc., which the dissent reads as distinguishing between a grant of jurisdiction and a waiver of immunity.
  • Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp, emphasizing that language anticipating litigation does not necessarily address immunity from suit.

This is foundational to the dissent’s claim that Property Code §§ 21.003 and 21.101(c) speak to what a court can decide in a properly brought case, not whether the State can be haled into court at all.

3. Constitutional takings jurisprudence (and its limits)

The dissent accepts the established constitutional waiver for inverse condemnation but treats it as inapplicable to statutory repurchase:

  • Steele v. City of Houston is presented as the canonical case recognizing that the Takings Clause “itself” waives immunity for “taking, damaging or destruction of property for public use.”
  • Subsequent takings cases—State v. Biggar, Town of Flower Mound v. Stafford Estates Limited Partnership, Tarrant Regional Water District v. Gragg, Texas Department of Transportation v. Self, and Commons of Lake Houston, Ltd. v. City of Houston—are used to illustrate that constitutional waiver tracks a core constitutional injury, not statutory rights that arise after compensation is paid.
  • City of Dallas v. VSC, LLC and City of San Antonio v. Grandjean are used to support the dissent’s temporal argument: constitutional concerns focus on taking without just compensation at the time of acquisition, not years later when plans change.

4. Conditioning a waiver on compliance (including forum)

The dissent’s “wrong court” argument is supported by:

  • Mission Consol. Indep. Sch. Dist. v. Garcia and City of Madisonville v. Sims for strict compliance with statutory prerequisites attached to waivers.
  • State v. Isbell (historic formulation) for the proposition that the State may be sued only “in the manner, place, and court or courts designated.”
  • AIC Mgmt. v. Crews is cited to characterize Government Code § 25.1032 as a routine jurisdictional grant rather than a waiver.

5. The dissent’s rejection of “purpose-based” waiver reasoning

To counter the majority’s view that the repurchase statute would be largely meaningless absent waiver, the dissent cites:

  • Rolling Plains Groundwater Conservation Dist. v. City of Aspermont for the idea that statutes can retain meaning even if not enforceable against immune entities, because they still apply to non-immune actors.
  • Univ. of the Incarnate Word v. Redus and the dissent in CPS Energy v. Elec. Reliability Council of Tex. to emphasize political accountability as an alternative constraint on government.

B. Legal Reasoning

1. The dissent’s interpretive rule: waive immunity only by unmistakable statement

The dissent urges a near-binary test: search the statute for an unambiguous legislative declaration that the State may be sued. It highlights what it considers “hallmarks” of waiver—explicit “waiver/abolished” language or mandatory State-party language—contrasting them with Chapter 21’s phrasing (“may determine all issues”).

On this view, the majority’s reliance on (i) the Takings Clause backdrop, (ii) placement within eminent-domain statutes, and (iii) practical efficacy concerns is precisely what clear-statement rules are designed to avoid.

2. “Through eminent domain” as a completed process (not merely initiated)

Justice Hawkins reads “through” to require that the eminent-domain process culminate in the acquisition mechanism, not merely motivate settlement. Because the deed states the settlement was reached “to avoid ED proceedings,” the dissent treats the acquisition as “through purchase,” even if the condemnation case began.

This narrows Chapter 21 repurchase eligibility in cases resolved by negotiated conveyance after condemnation is filed.

3. “District court” as a condition on consent to suit

The dissent treats Property Code §§ 21.003 and 21.101(c)’s reference to “district court” as a waiver-limiting term: even if the Legislature consented, it consented only in that forum. Jurisdictional grants to county courts at law (Government Code § 25.1032; Property Code § 21.001) cannot expand a limited waiver because jurisdiction and immunity are distinct concepts.

C. Impact

1. If the Court’s (majority) waiver holding controls

As described by the dissent, the Court’s decision establishes that the State has no immunity from Chapter 21 repurchase claims. That materially changes the enforcement posture of the repurchase regime by converting what could have been largely political/administrative obligations into judicially enforceable duties against the State, potentially increasing:

  • repurchase litigation against TxDOT and other condemning authorities;
  • pressure on agencies to document “public use” follow-through and surplus determinations;
  • disputes over repurchase price, timeliness, and statutory prerequisites.

The dissent underscores the Court’s own effort (as characterized in the text) to confine the reasoning to this “unique” property context. Even so, the waiver conclusion may encourage litigants to argue for “contextual” or “purpose-based” waivers in other statutory schemes.

2. If the dissent’s approach were adopted in future cases

The dissent lays down a roadmap for limiting repurchase claims:

  • Text-first waiver: no waiver absent explicit “immunity is waived/abolished” language or equivalent unmistakable direction.
  • Eligibility narrowing: exclude acquisitions resolved by negotiated deeds as not “acquired through eminent domain.”
  • Forum strictness: treat “district court” references as mandatory waiver conditions.

Practically, that would push repurchase enforcement toward legislative oversight and agency compliance rather than private suits, and would reduce exposure to attorneys’ fees and litigation costs that accompany judicial enforcement.

IV. Complex Concepts Simplified

  • Sovereign immunity: A doctrine that generally prevents private parties from suing the State without the State’s consent.
  • Waiver (clear-statement rule): The Legislature must speak clearly if it intends to allow suits against the State; vague references to courts or rights are usually not enough.
  • Eminent domain vs. purchase: Eminent domain is the government’s compelled acquisition power (with compensation). A purchase is a voluntary conveyance by deed. The dissent argues that a settlement deed—even in the shadow of condemnation—remains a purchase, not an acquisition “through eminent domain.”
  • Inverse condemnation: A claim (recognized under the Takings Clause) seeking compensation when the government effectively takes or damages property without using formal condemnation procedures. Under Steele v. City of Houston, the Constitution itself supplies a remedy and waives immunity for that narrow class of constitutional injuries.
  • Jurisdiction vs. immunity: A court may have the power to hear a type of case (jurisdiction), but the State may still be protected from being sued (immunity) unless immunity is waived.
  • Statutory prerequisites/conditions: When the Legislature allows suit only if certain steps are followed (including filing in a specified court), failing to comply can defeat the waiver.

V. Conclusion

Justice Hawkins’s dissent is a comprehensive defense of a strict, text-centered sovereign-immunity doctrine. It rejects the notion that Chapter 21’s repurchase language waives immunity by implication, context, or perceived necessity, and it proposes two additional limitations even if waiver existed: (1) repurchase applies only when property is truly acquired “through eminent domain,” and (2) any waiver is conditioned on filing in “district court.”

The broader significance lies in the dissent’s insistence that immunity-waiver analysis remain simple and separation-of-powers driven: courts should enforce waivers only when the Legislature unmistakably says the State may be sued—particularly where expanding liability would reallocate public resources and policy choices away from the political branches.