Texas Supreme Court holds contractor entitled to derivative immunity for conspiracy claims, but not fraud claims
GTECH Corp v. Steele, et al, 18-0158 (Tex. June 12, 2020).
In this case, the Texas Supreme Court held a contractor providing certain functions of the Texas Lottery Commission was not entitled to derivative sovereign immunity.
GTECH provided instant ticket manufacturing and services to the Texas Lottery Commission. GTECH was sued by multiple plaintiffs (in multiple suits alter consolidated on appeal) alleging that the instructions on a scratch-off lottery ticket were misleading, causing them to believe they had winning tickets when they did not. GTECH created draft tickets, which the TLC commented on and made changes, but ultimately approved after the back-and-forth concluded. After several complaints, the TLC shut down the game within 60 days of its release. The plaintiffs asserted claims for fraud, fraud by nondisclosure, aiding and abetting fraud and conspiracy. GTECH filed pleas to the jurisdiction, asserting it was entitled to the same immunity held by the Lottery Commission. Due to the multitude of suits, some pleas were granted, some denied, but all ended up on appeal.
The Court first noted it had not yet had the opportunity to address whether a Texas government agency’s immunity from suit might extend to its private contractors and if so under what circumstances. In the instances of derivative immunity, it only applies to a private company operating “solely upon the direction” of a government, and exercising “no discretion in its activities,” was “not distinguishable” from the entity such that “a lawsuit against one [was] a lawsuit against the other.” Here, the contract required GTECH to provide suggested game designs. After receiving approval from the Lottery Commission, GTECH provided drafts and received comments. GTECH’s role also included crafting, designing, and choosing wording. The Commission’s instant product coordinator testified he would expect GTECH to notify the Commission if it saw concerns with a game, including misleading instructions. Based on the contract and other evidence in the record, the Court held GTECH had some discretion with regard to the conduct at issue. The Court held that close supervision and final approval of work over which a contractor has discretion are not the same as the government specifying the manner in which a task is to be performed. Importantly, the Court stated “[t]hus, even if we recognized derivative sovereign immunity for contractors, GTECH would not be entitled to immunity from suit on the fraud claims under the control standard.” This seems to indicate the issue of derivative immunity for contracts with state agencies remains an open question. The Court also stated “[a] challenge to an element of a plaintiff’s claim by a defendant who lacks immunity from suit does not implicate the jurisdiction of the court; it should be raised in a motion for summary judgment rather than a plea to the jurisdiction.” Finally, the majority held that extending immunity to contractors for fraud could not further the purpose of immunity. However, the Court did say that GTECH WAS entitled to derivative immunity from the allegation of conspiracy and aiding and abetting because such claims require a finding of the underlying fraud claim being viable against the TLC. Since the TLC has immunity from fraud claims, the conspiracy and aiding and abetting claims cannot be sustained against GTECH.
Chief Justice Hecht’s concurring in part and dissenting in part opinion notes that he believes since the ultimate decision and approval of the final ticket form rested with the Commission that GTECH should have been provided immunity as to the fraud claims. He stated “Today’s lesson is that if the government acts only through its own employees, it is immune from suit, but if it consults experts before it acts, it is still immune from suit but the experts are not, except that the experts are immune from suit for helping the government defraud but not for giving the government advice that it uses to defraud. And there you have it.” He agreed GTECH was immune from the conspiracy and aiding and abetting claims.
Justice Boyd’s opinion essentially stated his opinion is that “the simple and logical conclusion” is simply that sovereign immunity only protects the sovereign, no one else. He clarified that this does not affect his opinion on official or qualified immunity which applies to individuals.
If you would like to read this opinion click here. Opinion by Justice Busby. Chief Justice Hecht delivered an opinion concurring in part and dissenting in part. Justice Boyd delivered an opinion concurring in part and dissenting in part.