---
title: Ga. Const. Art. I, Sec. II, Para. IX. Sovereign immunity and waiver thereof; claims against the state and its departments, agencies, officers, and employees.
collection: code
id: ga-const:art-i-sec-ii-para-ix
cite_as: Ga. Const. Art. I, Sec. II, Para. IX
canonical_url: https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-ix
md_url: https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-ix.md
text_url: https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-ix/text
source_url: https://www.legis.ga.gov/api/document/docs/default-source/joint-features-document-library/2ga-const-(v2)-2016-pdf.pdf?sfvrsn=f5de823e_0#page=695
date: 2016
status: active
corpus_version: 2025-supplement-89aa39ab3c68
license: CC0-1.0
publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice.
up: https://georgiacommons.org/constitution/ga/index.md
previous: https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-viii.md
next: https://georgiacommons.org/constitution/ga/art-i-sec-iii-para-i.md
index: https://georgiacommons.org/code/index.md
omitted: notes
omitted_chars: 137485
omitted_url: https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-ix.md?notes=all&start=10925
version: the only printed version
in_force: true
current_through: Including Acts of the 2025 Regular Session of the General Assembly
heading_path: CONSTITUTION OF THE / BILL OF RIGHTS / ORIGIN AND STRUCTURE OF GOVERNMENT
---

# Ga. Const. Art. I, Sec. II, Para. IX. Sovereign immunity and waiver thereof; claims against the state and its departments, agencies, officers, and employees.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

(a) The General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide.

(b) The General Assembly may also provide by law for the processing and disposition of claims against the state which do not exceed such maximum amount as provided therein.

(c) The state’s defense of sovereign immunity is hereby waived as to any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments and agencies.

(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.

(e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

(f) No waiver of sovereign immunity under this Paragraph shall be construed as a waiver of any immunity provided to the state or its departments, agencies, officers, or employees by the United States Constitution. (Ga. Const. 1983, Art. 1, § 2, Para. 9; Ga. L. 1982, p. 2546, § 1/SR 340; Ga. L. 1990, p. 2435, § 1/HR 777.)

## Cross References

Joint purchase of insurance and joint formation of self-insurance programs by boards of education, § 20-2-2001 et seq. Joint purchase of insurance and joint formation of self-insurance programs by municipalities and counties, T. 36, C. 85. Waiver of sovereign immunity in actions for breach of written contracts entered into by the state, any of its departments, etc., § 50-21-1. Georgia Tort Claims Act, § 50-21-20 et seq. Immunity of counties, municipalities, and school districts, Ga. Const. 1983, Art. IX, Sec. II, Para. IX.

## Editor's Notes

The constitutional amendment (Ga. L. 1982, p. 2546, § 1) which revised the 1976 Constitution so as to provide sovereign immunity and waivers thereof was ratified at the general election held on November 2, 1982, and was incorporated as part of this paragraph pursuant to Art. XI, Sec. I, Para. V of the 1983 Constitution.

The constitutional amendment (Ga. L. 1988, p. 2121, § 1) which would have revised this paragraph to provide for sovereign immunity and official immunity, to provide for circumstances and procedures for raising such immunity, and to provide the General Assembly with authority to enact related laws, was defeated at the general election on November 8, 1988.

The constitutional amendment (Ga. L. 1990, p. 2435, § 1) which rewrote this paragraph to provide for waiver of sovereign immunity by enactment of a State Tort Claims Act was approved by a majority of the qualified voters voting in the general election held on November 6, 1990.

In light of the similarity of the provisions, decisions under former Ga. Const. 1976, Art. VI, Sec. V, Para. I and antecedent provisions, relating to the creation of a state court of claims and incidentally to the reservation of the sovereign immunity of the state, are included in the annotations for this paragraph.

Some of the cases cited below were decided before the 1990 amendment which deleted provisions as to waiver to the extent of liability insurance.

Governmental immunity waived

## Law Reviews

For article, ‘‘Injunction Procedure in Georgia,’’ see 13 Ga. B.J. 300 (1951). For article, ‘‘Sovereign Immunity in Administrative Law — A New Diagnosis,’’ see 9 J. of Pub. L. 1 (1960). For article advocating the overhaul of the doctrines of official and sovereign immunity, see 29 Mercer L. Rev. 303 (1977). For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982). For survey article on contracts — legislation, see 34 Mercer L. Rev. 71 (1982). For article, ‘‘The Georgia Bill of Rights: Dead or Alive?,’’ see 34 Emory L.J. 341 (1985). For annual survey of law of torts, see 38 Mercer L. Rev. 351 (1986). For article, ‘‘Georgia Local Government Tort Liability: the ‘Crisis’ Conundrum,’’ see 2 Ga. St. U.L. Rev. 19 (1986). For article, ‘‘The Fall and Rise of Official Immunity,’’ see 25 Ga. St. B.J. 93 (1988). For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991). For article, ‘‘The 1992 Georgia Tort Claims Act,’’ see 9 Ga. St. U.L. Rev. 431 (1993). For article, ‘‘Local Government Tort Liability: the Summer of ’92,’’ see 9 Ga. St. U.L. Rev. 405 (1993). For article, ‘‘Tort Claims Against the State: Georgia’s Compensation System,’’ see 32 Ga. L. Rev. 1103 (1998). For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For article, ‘‘‘Official Immunity’ in Local Government Law: A Quantifiable Confrontation,’’ see 22 Ga. St. U.L. Rev. 597 (2006). For article, ‘‘Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law,’’ see 57 Mercer L. Rev. 511 (2006). For survey article on administrative law, see 59 Mercer L. Rev. 1 (2007). For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).

For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims pursuant to this paragraph, see 27 Emory L.J. 717 (1978). For note, ‘‘City of Rome v. Jordan: Georgia is a Public Duty Doctrine Jurisdiction With No Waiver of Sovereign Immunity — A Good ‘Call’ by the Supreme Court,’’ see 45 Mercer L. Rev. 533 (1993). For note, ‘‘Seay v. Cleveland: Resolution of the Ministerial Discretionary Dichotomy,’’ see 51 Mercer L. Rev. 787 (2000). For note, ‘‘Youngblood v. Gwinnett Rockdale Newton Community Service Board: The Sovereign Immunity of State Agencies Under the Georgia Constitution and the Georgia Tort Claims Act,’’ see 53 Mercer L. Rev. 967 (2002).

## 1976 Constitution.

Art. VI, Sec. V, Para. I.

## Only by Constitution or General Assembly.

Governmental immunity from suit is waived only when so provided by the Constitution or by the express act of the General Assembly. Porter v. Home Indem. Co., 168 Ga. App. 799, 310 S.E.2d 546 (1983).

Georgia Attorney General lacks statutory authority to waive the state’s Eleventh Amendment immunity from suit; only the legislature can authorize a waiver of sovereign immunity. Ramey v. Ga. Dep’t of Corr., 153 F. Supp. 2d 1382 (M.D. Ga. 2001).

Under the Georgia Constitution, sovereign immunity extends to the state and all of its departments, and may be waived only by a legislative act. DOT v. Watts, 260 Ga. App. 905, 581 S.E.2d 410 (2003).

## Constitutionality.

Ga. Const. 1983, Art. I, Sec. II, Para IX does not violate due process and equal protection guarantees. Dollar v. Dalton Pub. Schs., 233 Ga. App. 827, 505 S.E.2d 789 (1998).

For constitutionality of paragraph, see Clark v. State, 240 Ga. 188, 240 S.E.2d 5 (1977).

Constitutionality of provision for

## Governmental Immunity of Counties.

— Amendment providing counties with the shield of governmental immunity was not ineffectual or invalid merely because it was in conflict with existing provisions. Harry v. Glynn County, 269 Ga. 503, 501 S.E.2d 196 (1998).

Constitutionality of statutory scheme for waiver of immunity by

## State and Counties.

The statutory scheme under which plaintiffs having tort claims against the state have the benefit of the broad waiver of sovereign immunity afforded by the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., which does not extend to counties, whereas a county’s waiver of immunity is allowed only to the extent of insurance purchased for negligence arising from the use of a motor vehicle, results in unequal treatment, however, it does not violate due process or equal protection. Woodard v. Laurens General Considerations (Cont’d) County, 265 Ga. 404, 456 S.E.2d 581 (1995).

Constitutional immunity of school

## District.

School district was not an arm of the state for purposes of Eleventh Amendment immunity, even if it was part of the state for purposes of state sovereign immunity. Lightfoot v. Henry County Sch. Dist., 771 F.3d 764 (11th Cir. 2014).

Defense of sovereign immunity is not affirmative defense with respect to which the state has the burden of proof. Indeed, neither counsel for the state nor any of its agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity. Kelleher v. State, 187 Ga. App. 64, 369 S.E.2d 341 (1988).

This paragraph is not nullified by any illegality in its ratification. Clark v. State, 142 Ga. App. 272, 235 S.E.2d 614, aff’d, 240 Ga. 188, 240 S.E.2d 5 (1977); Harry v. Glynn County, 269 Ga. 503, 501 S.E.2d 196 (1998). tion properly substituted as this

## 1982 Amendment to 1976 Constitu-paragraph.

The sovereign immunity amendment to the 1976 Constitution, 1982 Ga. L., p. 2546, was properly substituted as this paragraph in the 1983 Constitution, Ga. Const. 1983, Art. I, Sec. II, Para. IX. Pollard v. Board of Regents, 260 Ga. 885, 401 S.E.2d 272 (1991).

By virtue of adoption of this paramunity now has constitutional status and cannot be abrogated or modified by the Supreme Court. Clark v. State, 240 Ga. 188, 240 S.E.2d 5 (1977).

## Graph, Doctrine of State Sovereign im-Immunity Rule.

The immunity rule as it has heretofore existed in this state cannot be abrogated or modified by the Supreme Court. Sheley v. Board of Pub. Educ., 233 Ga. 487, 212 S.E.2d 627 (1975).

The doctrine of sovereign immunity was given constitutional status by the 1974 amendment to this paragraph, and applies to any ‘‘suit’’ involving claims for ‘‘injury’’ or ‘‘damage’’ against the state unless and until there is a waiver by act of the General Assembly. Echols v. DeKalb County, 146 Ga. App. 560, 247 S.E.2d 114 (1978).

Doctrine of sovereign immunity is vested with constitutional status and applies to any action against the state unless there is an express statutory waiver of sovereign immunity. National Distrib. Co. v. DOT, 157 Ga. App. 789, 278 S.E.2d 648 (1981).

Doctrine of sovereign immunity is tional rights. C.F.I. Constr. Co. v. Board of Regents of Univ. Sys., 145 Ga. App. 471, 243 S.E.2d 700, cert. dismissed, 242 Ga. 96, 249 S.E.2d 613 (1978).

Violation of constitutional right of citizen must by necessary implication raise cause of action in favor of citizen unless some means of redress other than suit has been afforded by the legislature. C.F.I. Constr. Co. v. Board of Regents of Univ. Sys., 145 Ga. App. 471, 243 S.E.2d 700, cert. dismissed, 242 Ga. 96, 249 S.E.2d 613 (1978).

## Not Bar to Enforcement of constitu-No Waiver for Independent Contractors.

Corporations and independent contractors doing business with the state are not included within the Georgia Tort Claims Act’s (GTCA’s), O.C.G.A. § 50-21-22(7), definition of employee, thus, the state is immune from liability if the tort was committed by a third party and under the GTCA, the Georgia Department of Transportation’s sovereign immunity has not been waived for the negligence committed by independent contractors. Ga. DOT v. Wyche, 332 Ga. App. 596, 774 S.E.2d 169 (2015).

In a suit wherein a construction worker for an independent contractor working on a state highway project was killed, the trial court erred by denying the Georgia Department of Transportation’s (DOT’s) motion to dismiss because whether the plaintiff’s claims were characterized as either claims that the DOT negligently approved the independent contractor’s paving project or negligently inspected the project, the claims were barred under the doctrine of sovereign immunity. Ga. DOT v. Wyche, 332 Ga. App. 596, 774 S.E.2d 169 (2015). tent of such changes are now solely

## Changes in Immunity Rule and Exwithin Domain of General Assembly.

Sheley v. Board of Pub. Educ., 233 Ga. 487, 212 S.E.2d 627 (1975).

Generally, the state and its political subdivisions are protected by the doctrine of sovereign immunity in the performance of governmental functions; this paragraph provides for waiver of immunity of the state from suit as is now or may hereafter be provided by Act of the General Assembly. National Distrib. Co. v. DOT, 157 Ga. App. 789, 278 S.E.2d 648 (1981).

State courts have primary interest


> The printed notes continue for 137,485 more characters, not shown here. Continue at https://georgiacommons.org/constitution/ga/art-i-sec-ii-para-ix.md?notes=all&start=10925