The full case caption appears at the
end of this opinion. Per Curiam The Texas Commission on Human Rights sued Joe Bruce Kinnear for violating the Texas Fair Housing Act, which prohibitsdiscriminatory housing practices. Tex. Prop. Code �� 301.001-.171. In previous litigation, Kinnear sought an injunctionpreventing the sale of a neighborhood home to the Deep East Texas Regional Mental Health and Mental RetardationServices (now the Burke Center). The Burke Center intended to convert the home into a group residence for mentallydisabled persons, which Kinnear alleged would violate deed restrictions on the property. Although Kinnear obtained theinjunction, the court of appeals dissolved it, holding that the federal Fair Housing Act, 42 U.S.C. �� 3601-3631, prohibitsdeed restrictions against group homes for handicapped persons. See Deep East Tex. Reg’l MHMRS v. Kinnear, 877S.W.2d 550 (Tex. App.-Beaumont 1994, no writ). The Commission then filed this suit, alleging that Kinnear violated the Texas Fair Housing Act when he filed the petition forinjunction. Kinnear answered that res judicata and collateral estoppel barred the suit, and he requested court costs andattorney fees under the Texas Fair Housing Act. See Tex. Prop. Code � 301.156 (court may award reasonable attorney feesto prevailing party and assess court costs against nonprevailing party). The jury found that Kinnear had not committed adiscriminatory housing practice, and also found his reasonable attorney fees to be $48,750.00, with additional fees forappeals, if taken. The trial court rendered judgment on the jury’s verdict. The Commission appealed. The court of appeals raised the issue of sovereign immunity from liability sua sponte, and overturned the attorney fees awardto Kinnear, while affirming all other aspects of the trial court’s judgment. 986 S.W.2d 828. Although the court properly notedthat an award against the State may be granted only if the Legislature has waived sovereign immunity, the court failed todistinguish between immunity from suit and immunity from liability, which are distinct principles. See Texas Dep’t of Transp.v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit concerns whether the State has consented to be sued,thereby vesting the trial court with subject matter jurisdiction. See id. Because the Commission initiated this proceeding underthe Texas Fair Housing Act, and Kinnear claimed attorney fees as a consequence of that suit, the jurisdictional question inthis case was answered when the Commission filed suit, regardless of whether the Commission can ultimately be liable forfees. Thus the issue is whether the Commission, a state agency, is immune from liability for attorney fees under section301.156, the fee-shifting provision of the Act. Immunity from liability, like other affirmative defenses to liability, must be pleaded, or else it is waived. See id.; Davis v. Cityof San Antonio, 752 S.W.2d 518, 519-20 (Tex. 1988); see also Tex. R. Civ. P. 94. Because the Commission neverpleaded sovereign immunity from liability as an affirmative defense to the requested attorney fees, it waived the defense, andthe court of appeals erred in overturning the attorney fees award on sovereign immunity grounds. We express no opinion withrespect to whether sovereign immunity from liability, when properly pleaded, precludes a prevailing party from recoveringattorney fees against the State under section 301.156 of the Texas Fair Housing Act. Accordingly, without hearing oralargument, the Court grants Kinnear’s petition for review, reverses the court of appeals’s judgment on the attorney feesquestion, and renders judgment awarding Kinnear his attorney fees and costs. See Tex. R. App. P. 59.1. Opinion delivered: April 20, 2000
Kinnear v. Texas Commission on Human Rights IN THE SUPREME COURT OF TEXAS No. 99-0621 JOE BRUCE KINNEAR, Petitioner v. TEXAS COMMISSION ON HUMAN RIGHTS, BY AND THROUGH WILLIAM M. HALE, IN HIS OFFICIALCAPACITY AS ITS EXECUTIVE DIRECTOR, ON BEHALF OF THE BURKE CENTER, FORMERLY DEEP EASTTEXAS MENTAL HEALTH AND MENTAL RETARDATION SERVICES, AGGRIEVED PERSON, Respondents On Petition for Review from the Court of Appeals for the Ninth District of Texas
