What Does “Immunity” Look Like in Real Life?

Most Texans have never read a case about sovereign immunity.

But many have experienced it.

They just didn’t know what to call it.

Immunity does not feel like a legal doctrine.

It feels like a door closing before you are heard: because it is.

When Government Takes Property

Imagine your land is targeted for eminent domain.

You believe the taking exceeds constitutional limits.

You believe the valuation is manipulated.

You believe statutory procedures were not followed.

You go to court.

Instead of a hearing on legality, you are told: The government is immune from suit.

You are not arguing that government can never take property.

You are asking whether this taking complies with constitutional safeguards.

But the case never reaches that question.

When a State Agency Overrides Parents

Consider a scenario involving education oversight.

A state agency intervenes in a district. Policies are imposed. Local authority shifts. Decisions are made that affect children and families.

Parents seek judicial review to determine whether statutory limits were exceeded.

The response? Immunity. No standing. Dismissed.

The legality is never tested.

When Abuse Occurs Within Government Systems

Consider:

• Physical abuse or misconduct by individuals employed in taxpayer-funded positions

• DFPS/CPS decisions that remove children or ignore documented harm

• Official oppression under color of law

• Constitutional civil rights violations

The citizen files suit to test whether procedures were lawful, safeguards were followed, or constitutional protections were violated.

Before discovery.

Before testimony.

Before adjudication.

-Immunity.

Case dismissed.

When Officials Refuse to Perform Ministerial Duties

Ministerial duties are not discretionary.

They are mandatory.

Examples may include:

• A district attorney refusing to perform a mandatory prosecutorial duty required by statute

• A sheriff refusing to execute a lawful order or enforce a clear statutory mandate

• An elected official declining to carry out a duty imposed by law

• A public officer failing to comply with constitutional or statutory procedural requirements

The citizen does not demand punishment.

The citizen asks the court to require performance of a legal duty.

But instead of adjudication, the case is blocked at the threshold.

When Judicial Discretion Becomes Unreviewable

Courts themselves possess discretion.

But when appellate review is cut off by procedural barriers or immunity doctrines, even judicial overreach becomes insulated from meaningful scrutiny.

The issue is not whether judges are perfect.

The issue is whether constitutional safeguards remain reviewable.

Where Did “Sovereign Immunity” Come From?

England: “The King Can Do No Wrong.”

Sovereign immunity did not originate in America.

It comes from English monarchy.

Under the British system, the King was considered the sovereign. Because he was the source of law, he could not be sued in his own courts. The doctrine was summarized simply:

“The King can do no wrong.”

If the sovereign is the ruler, and the ruler controls the courts, then no subject can sue the sovereign without his consent.

That made sense in a monarchy.

It does not fit naturally in a constitutional republic.

What Changed in America?

The American Revolution rejected monarchy.

The Founders did not transfer sovereignty from the King to the State.

They placed sovereignty in the People.

As James Madison and others explained, government derives its authority from the People.

It is delegated, limited, and defined by written constitutions.

If the People are sovereign, then government is not.

Government becomes an agent.

And in a system of delegated authority, agents are accountable to their principals.

So Who Is “Sovereign” in Texas?

In Texas, sovereignty resides in the People.

That means:

• Government exists by delegation.

• Government is bound by the Constitution.

• Government must operate within defined limits.

In a republic, the People are not subjects.

They are the source of authority.

Who Should Be Immune From Whom?

Under monarchical theory:

The sovereign is immune from the subjects.

Under American constitutional theory:

The People are sovereign, and government exists by their consent.

That flips the relationship.

If there is to be immunity in a republic, it flows to protect the People from unlawful government action — not to protect government from accountability to the People.

Can the Government Ever Sue Citizens?

Yes — but in limited contexts.

The government may prosecute criminal conduct.

Criminal law protects public order and safety.

But that is different from shielding government from civil accountability when it exceeds its lawful authority.

One addresses criminal wrongdoing by citizens.

The other concerns accountability of government.

They are not the same.

Why Does This Matter?

If sovereignty rests with the People, then the People must retain the ability to challenge government action in court.

Otherwise, the relationship quietly reverts to the older model:

Government above. Citizen below.

The American constitutional structure rejects that hierarchy.

Open courts are how a republic preserves the principle that government remains subject to law.

Why Do So Few People Ever “Win” Against Immunity?

Even when a case is not dismissed at the threshold, most Texans never reach a real merits determination for a simple reason: immunity makes accountability prohibitively expensive, slow, and rare.

If someone succeeds in pushing past immunity defenses, it is usually because:

• An unusually persistent attorney is willing to fight for years,

• The client has unusual resources to sustain the fight, or

• The lawyer takes the case on principle, absorbing the cost, risk, and delay.

That is not a functioning accountability system. That is an exception.

And Texas is not known for being plaintiff-friendly in this category.

A national assessment by the Institute for Justice graded Texas a “D” for its “immunity and accountability practices,” describing the government-liability landscape in Texas as “bleak” for plaintiffs.

The same Institute for Justice project also publishes a 50-state grading table and describes the report as ranking states on “access to justice and government accountability,” with Texas listed at a D.

What Immunity Actually Does

Immunity, as applied today, often functions as:

• A jurisdictional barrier

• A shield before facts are developed

• A dismissal before legality is determined

• A block to discovery

• A denial of standing

It does not decide who is right.

It prevents the question from being answered.

The Structural Problem

In each of these scenarios, the citizen is not asking for automatic victory.

The citizen is asking for judicial determination.

When immunity prevents review entirely, the People cannot test whether government acted within delegated authority.

Sovereignty shifts — quietly — from the People to the institution.

The Real Issue

Should Texans be allowed to challenge government action in court?

Should ministerial duties be enforceable?

Should constitutional rights be reviewable?

If the answer is yes, then Open Courts & Popular Sovereignty is not extreme.

It is the mechanism that keeps constitutional government intact.

“The ultimate authority… resides in the people alone.”

— James Madison, Federalist No. 46 (1788)