Sandra PICKELL, Appellant, v. William H. BROOKS, Executive Director, Texas Board of Pardons and Paroles, in His Individual and Official Capacities, Appellee, 846 S.W.2d 421

BEA ANN SMITH, Justice. This appeal involves the doctrines of governmental immunity and procedural due process in the context of an agency adjudication. At issue is whether a state agency’s denial of supervisory credit to an employee satisfies procedural due process. Sandra Pickell, appellant, filed suit against the executive director of the Board of Pardons and Paroles, William H. Brooks, ap-pellee, in both his official and individual capacities, for judicial review of Brooks’ action and for original claims of violation of state constitutional due-process rights and of breach of contract. The district court rendered a general

summary judgment in favor of Brooks, and Pickell raises a single point of error — the district court erred in rendering

summary judgment. We will affirm. FACTS Pickell has been an employee of the Board since January 1983. She was first employed as a parole caseworker in Abilene and was promoted in February 1987 to unit supervisor. In late 1987, Pickell became interested in an ATP-I position in Austin. Although the ATP-I position carried significant administrative responsibilities, it did not have supervisory responsibilities. Pic-kell was concerned about this lack of supervisory responsibilities because supervisory experience is often a prerequisite for advancement on the Board’s career ladder.

Pickell discussed the lack of supervisory responsibilities with William Burke, who at that time was the director of the Board’s internal audit division and who would be her supervisor if she took the position. Burke told Pickell that if she took the ATP-I position, she would receive credit for supervisory experience. Pickell moved from Abilene to Austin and began her new job in February 1988. In June 1989, Pickell applied for a job as a parole supervisor.

This position required five years experience in criminal justice or a related field, including two years supervisory experience, half of which had to be acquired as an employee of the Board. Pic-kell had worked for the Board for more than five years and had one year of supervisory experience with the Board from her job as a unit supervisor in Abilene. Pickell believed that she met the balance of the supervisory experience requirement because of the supervisory credit she had been accruing in her ATP-I position. The Board informed Pickell in July 1989 that she lacked the two years supervisory experience.

Pickell filed a grievance in July 1989, and in October 1989 Brooks determined that she would be awarded credit for supervisory experience in her ATP-I position only through June 1, 1988. Brooks decided at that time not to grant Pickell a formal grievance hearing. Pickell filed suit in December 1989 and sought a temporary injunction to compel Brooks to provide a grievance hearing. Brooks testified at the hearing on the motion for a temporary injunction that it would be futile to hold a grievance hearing as he had already decided to deny her grievance.

The Board allowed Pickell to present her grievance without a hearing, and Brooks once again denied her grievance in February 1990. In December 1990, Brooks moved for

summary judgment in district court on the grounds that:

(1) Pickell received adequate procedural due process; (2) governmental immunity protected Brooks; (3) the state constitution does not independently establish a cause of action for damages; and (4) no contract existed between Pickell and the Board. Brooks argued in part that the May 24, 1988, memorandum approved by Glenn Heckmann terminated any contractual rights to supervisory credit that Pickell may have had. See Memorandum of May 24, 1988, supra note 4. In January 1991, Pickell moved for partial

summary judgment on the issue of whether she had a property interest in receiving credit for supervisory experience. The district court granted Brooks’ motion for

summary judgment and denied Pickell’s motion for partial

summary judgment in May 1991. Pickell’s claims can be divided into two groups: (1) her original breach-of-contract claim against Brooks in district court; and (2) her procedural due-process claims raised both in her suit for judicial review of Brooks’ action and her original cause of action in district court for violation of procedural due-process rights.

Pickell also purports to sue Brooks in both his official and individual capacities, but her second amended petition states her causes of action using the words, “The Agency, by and through William Brooks,” demonstrating that Brooks has only been sued in his official capacity. Thus, despite the case style, we hold that Pickell has asserted no claims against Brooks in his individual capacity. As we will discuss, the doctrine of governmental immunity bars Pickell’s original claim for breach of contract against Brooks in his official capacity.

Finally, Pickell’s procedural due-process suit for judicial review of Brooks’ action and her original procedural due-process claim cannot succeed because she has not demonstrated that she has suffered a deprivation which warrants procedural due-process protection. GOVERNMENTAL IMMUNITY The doctrine of governmental immunity bars Pickell’s original claim against Brooks in his official capacity for breach of contract. Governmental immunity consists of two basic principles of law. First, the state as sovereign cannot be sued without its permission. E.g., Hosner v.

De Young, 1 Tex. 764, 769 (1847); Board of Land Comm’rs v. Walling, Dallam 524, 525-26 (Tex.1843); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.-Austin 1991, writ denied). The doctrine bars suits against the state unless the state has expressly given its consent to be sued. E.g., Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex.1970). Second, the state has immunity from liability even though the state has consented to be sued. Id. at 813; State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 424 (1936); Dillard, 806 S.W.2d at 592.

Furthermore, a suit against a state officer in his official capacity is a suit against the state. See, e.g., Herring v. Houston Nat’l Exch. Bank, 113 Tex. 264, 253 S.W. 813, 814-15 (1923). Although the justifications for governmental immunity have long been criticized, the supreme court has said that the waiver of governmental immunity is a matter properly addressed to the legislature, not the courts. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976).

Pickell has neither shown that the state has consented to her suit against Brooks in his official capacity nor shown that the Board’s enabling legislation allows such suits. See Act of May 29, 1989, 71st Leg., R.S., ch. 785, §§ 1.02, .11, .20, 1989 Tex.Gen.Laws 3471, 3471, 3473, 3475 (Tex.Rev.Civ.Stat.Ann. art. 4413(401), §§ 1.02, .11, .20, since repealed and partially codified at Tex.Gov’t Code Ann. §§ 493.001-.002 (West Supp.1993)). Pickell correctly points out that the state waives its immunity from liability when it contracts, but the contracting party must first obtain permission to sue. Fristoe v.

Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898); Dillard, 806 S.W.2d at 592; Ferguson v. Johnson, 57 S.W.2d 372, 376 (Tex.Civ.App.-Austin 1933, writ dism’d); State v. Elliott, 212 S.W. 695, 698 (Tex.Civ.App.-Galveston 1919, writ ref'd). Pickell directs us to a 1979 court-of-appeals case to support her argument that governmental immunity does not preclude her original claims in the district court. Martine v. Board of Regents, State Senior Colleges, 578 S.W.2d 465 (Tex.Civ.App.—Tyler 1979, no writ).

Martine involved the dismissal of a tenured university professor, and the court recognized an inherent procedural due-process right of appeal to the district court that would be limited to questions of law, including substantial-evidence review. Id. at 473. The governmental-immunity holding in Martine, however, did not extend to the original claims that Martine filed in the trial court, but only dealt with his suit for judicial review.

Procedural due process, of course, allows a party to seek judicial review on the narrow issue of whether procedural due process has been violated, but a party may not bootstrap other claims to the due-process claim. A procedural due-process requirement of notice and hearing does not necessarily abrogate the state’s immunity from suit and immunity from liability. See Daniels v. Williams, 474 U.S. 327, 333-35 & n. 3, 106 S.Ct. 662, 666-67 & n. 3, 88 L.Ed.2d 662 (1986).

A plaintiff can receive adequate procedural due process in the form of notice and a hearing that results in a dismissal on the ground of governmental immunity. Concluding that Martine does not support Pickell’s position, we hold that governmental immunity bars Pickell’s original breach-of-contract claim against Brooks in his official capacity. PROCEDURAL DUE PROCESS Pickell’s procedural due-process claims give rise to her suit for judicial review of Brooks’ action and her original cause of action in district court for violation of procedural due-process rights.

She concedes that the legislature has not provided for judicial review of actions of the Board, but argues that procedural due process entitles her to such review. See City of Amarillo v. Hancock, 239 S.W.2d 788, 790-91 (Tex.1951). We do not reach the issue of whether procedural due process requires Pickell’s suit for judicial review, however, because we conclude that she has not suffered a deprivation that warrants procedural due-process protection.

Procedural due process involves the preservation of both the appearance and reality of fairness so that “no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed against him.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980). Both the right to be heard from and the right to be told why are distinct from the right to a different outcome.

Procedural due process expresses the fundamental idea that people, as opposed to things, at least are entitled to be consulted about what is done to them. See Laurence H. Tribe, American Constitutional Law § 10-7, at 666 (2d ed. 1988). Modern procedural due-process analysis begins with determining whether the government’s deprivation of a personal interest warrants procedural due-process protection. This interest may be either a so-called “core” interest, i.e., a life, liberty, or vested property interest, or an interest that stems from independent sources, such as state law. See Board of Regents v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The courts must accord full deference to the statutory law that creates property interests beyond the “core” interests. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985).

Rightly or wrongly, current procedural due-process analysis protects only what actually belongs to the individual, rather than recognizing that unfairness exists in the very act of disposing of an individual's situation without allowing the individual to participate in some meaningful way. See Tribe, supra, § 10-12, at 713. Procedural due-process analysis next determines what process is due, with courts looking almost exclusively to the Constitution for guidance. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

Pickell is unable to meet the first prong of procedural due-process analysis as she has not demonstrated that she has either a “core” interest or an interest that stems from independent sources such as state law. Pickell argues that she has a vested property right in receiving supervisory credit as long as she maintains her current job. Pickell, however, was an at-will employee, and as such she only had vested property rights to the salary and benefits for the time she had already worked. See, e.g., Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex.1989); East Line & R.R.R.R. v.

Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Ferris v. Texas Bd. of Chiropractic Examiners, 808 S.W.2d 514, 518 (Tex.App.—Austin 1991, writ denied). Under the at-will employment doctrine, the Board had the authority to modify the terms of her employment contract as it did in the May 24, 1988, memorandum approved by Heckmann. After May 24, 1988, Picked had neither a “core” interest nor an interest that stems from independent sources which is recognized in procedural due-process jurisprudence. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (affirming termination of at-will police officer).

We, therefore, do not reach the second issue of determining the amount of procedural due process to which she is entitled. We hold that her suit for judicial review of Brooks’ action and her original cause of action in district court for violation of procedural due-process rights are without merit. CONCLUSION Pickell’s point of error is overruled in ad respects. The judgment of the district court is affirmed. . Since events at issue began, the legislature has abolished the Board of Pardons and Paroles and reestablished it as a division of the Texas Department of Criminal Justice.

Act of May 21, 1985, 69th Leg., R.S., ch. 427, sec. 2, art. 42.18, § 3, 1985 Tex.Gen.Laws 1531, 1550 (Adult Parole and Mandatory Supervision Law, Tex.Code Crim.Proc.Ann. art. 42.18, § 3, since amended) (creating Board of Pardons and Paroles as statutory agency); Act of May 29, 1989, 71st Leg., R.S., ch. 785, §§ 1.02, .11, .20, 1989 Tex.Gen. Laws 3471, 3471, 3473, 3475 (Tex.Rev.Civ.Stat.

Ann. art. 4413(401), §§ 1.02, .11, .20, since repealed and partially codified at Tex.Gov’t Code Ann. §§ 493.001, .002 (West Supp.1993)) (creating Texas Department of Criminal Justice as statutory agency, establishing pardons and paroles division within Department, and abolishing old Board of Pardons and Paroles effective January 1, 1990). . See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). The standards for reviewing a motion for

summary judgment are well established;

(1) The movant for

summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding

summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). . The term ‘'ATP-I" means "Administrator of Technical Programs-I.” Pickell's job title changed to "Auditor III” in September 1989 after she filed suit, but her job duties have remained the same. . After Pickell filed her grievance, Burke memorialized this conversation in August 1989.

Two other after-the-fact memoranda are relevant to the representations made to Pickell before her move to Austin. Glenn Heckmann, the Board’s then executive director, approved a May 24, 1988, memorandum, that stated, "[a]U Parole Analyst [sic], field, institutional, Hearing, and Hearing [sic] Officers and Community Resource Officers will be given credit for their administrative experience in lieu of supervisory experience. This credit will be given on a one time basis. This will be effective immediately.

After this these employees will not be given credit for this experience.” In a September 11, 1989, memorandum, Heckmann stated, "[t]o clarify the matter, it was my intent to grant all Analysts, Community Resource Officers, Hearing Officers, and ATP-Is credit for their administrative experience in lieu of supervisory experience. Furthermore, it was my intent that employees in the aforementioned categories would continue to receive administrative/supervisory experience as long as they performed their duties at that level.” .

We may look through the capacity in which Pickell has sued Brooks to ascertain the true nature of her claims. See State v. Lain, 349 S.W.2d 579, 582 (Tex.1961) (court should not exalt form over substance when considering capacity in which officer is sued). . Brooks properly raised governmental immunity in his answer. See Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex.1988). . Pickell has not argued, and we will not address, the issue of whether procedural due process overrides governmental immunity on her breach-of-contract claim. See, e.g., Daniels v.

Williams, 474 U.S. 327, 333-35 & n. 3, 106 S.Ct. 662, 666-67 & n. 3, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670-71, 88 L.Ed.2d 677 (1986). . The Martine court quoted City of Amarillo v. Hancock to support the conclusion that Martine had an inherent procedural due-process right of appeal to the district court. Hancock, 239 S.W.2d 788, 790-91 (Tex.1951).

As we will discuss later in our opinion, Hancock is a procedural due-process case, and Hancock's statement that a violation of a vested property right allows judicial review (the so-called "inherent right to appeal”) may be broader than current United States Supreme Court Fourteenth Amendment procedural due-process jurisprudence. .Martine’s specific holding was as follows; [Martine] has an inherent right to appeal to the courts the adverse effect of a decision by an administrative agency on his vested property interest in his position as a tenured member of the faculty of a state university, despite the lack of a statutory provision therefor, and obviating the requirement of legislative consent for a suit against the State through its agency....

Such judicial review would be limited to a question of law, i.e., whether the decision of the Board to dismiss [Martine] has support in substantial evidence as reflected in the proceedings before said Board. Martine, 578 S.W.2d at 473. We question the breadth of this holding as it would seem that Martine was only entitled to a suit for judicial review to determine if the Board violated his procedural due-process rights. See generally supra note 8 and text discussing procedural due process. .

Pickell’s point of error alleges that her state constitutional procedural due-process rights have been violated, but she cites only to federal cases interpreting the Due Process Clause of the Fourteenth Amendment. See Tex. Const, art. I, § 19. Without the benefit of adequate briefing on the state constitutional claim, we will, therefore, treat Pickell’s point of error as alleging a federal constitutional procedural due-process violation. . The inherent right of appeal in Hancock was again characterized as a due-process right in Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 433 (Tex.1963). .

The question of whether an administrative agency may adjudicate ownership of property rights is a concern separate from the guarantees of procedural due process. Cf. Amarillo Oil Co. v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 26 (Tex.1990) (Railroad Commission has no statutory authority to determine title to land or property rights). .Pickell claimed at one point in the proceedings below that Brooks was obligated to give her an opportunity to present her grievance under The Fire and Police Employee Relations Act, Tex.Rev.Civ.Stat.Ann. art. 5154c-1 (West 1987).

We do not see how Pickell qualifies under the Act as either a police officer or firefighter, but Pickell has not advanced the Act as the basis for her procedural due-process interest. Cf. City of San Antonio v. San Antonio Park Rangers Ass’n, No. 4-91-531-CV, slip op. at 6-8, 1992 WL 341852 (Tex.App.-San Antonio Nov. 25, 1992, n.w.h.) (protective service employees other than firefighters and city police officers excluded from rights enumerated in Act). .

The May 24, 1988, memorandum states, "[a]ll Parole Analyst [sic], field, institutional, Hearing, and Hearing [sic] Officers and Community Resource Officers will be given credit for their administrative experience in lieu of supervisory experience.... After this these employees will not be given credit for this experience.” (Emphasis added). Although the memorandum is anything but a model of clarity, Pickell neither has suggested an alternate

interpretation that the memorandum somehow extended the credit past May 24, 1988, nor has she specifically alleged that the memorandum is ambiguous and, therefore, raises an unresolved factual issue which precludes rendition of

summary judgment.