§ 111.003.Limitation on Settlement Without Legislative Consent or Approval

This is the operative bar, and it has two triggers.

The first is a dollar figure: total monetary damages exceeding $10,000,000 in a state fiscal biennium. The biennium is the state’s budget period, so the threshold is measured against the budget the legislature wrote.

The second has no dollar figure at all. A settlement that commits the state to a course of action that in reasonable probability will entail a continuing increased expenditure of state funds over subsequent bienniums needs consent whatever it costs today.

The second trigger is the one that matters most. A consent decree ordering an agency to change how it operates can bind budgets for a decade, and its cost in year one may be small.

The bar runs against the lawyer, not the claimant. The attorney general or other attorney representing the state may not enter into such a settlement without consent or approval.

A settlement made without prior consent is void. That is the enforcement mechanism, and it puts the risk on the party settling with the state.

There is one way to settle first and get consent later. The settlement survives if it is expressly conditioned on obtaining subsequent legislative approval under this chapter.

The condition has to be in the document. An understanding that the legislature will be asked is not the express condition the subsection requires.