Nukin' them with Tooke v. Mexia

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. June 30, 2006) - Government Defense Lawyers' Nuclear Weapon

Clear Lake City Water Authority v. Friendswood No. 14-07-00096-CV (Tex.App.- Houston [14th Dist.] Feb. 12, 2008) (Frost) (governmental immunity, breach of contract, Tooke v. City of Mexia progeny)

Water District invokes the magic word "Tooke" and has suit against it dismissed regardless of merit.

Holding: We are bound by the [Texas Supreme Court's] conclusion that [authority to "sue and be sued"] language is not sufficient to waive immunity from suit. See Tooke, 197 S.W.3d at 342-43. . . . Having determined that in both of the statutes upon which Friendswood relies the Legislature has not waived the Authority’s immunity from suit by clear and unambiguous language, we sustain the Authority’s issue, reverse the trial court’s order, and render judgment sustaining the Authority’s plea to the jurisdiction and dismissing this case for lack of subject matter jurisdiction.

Opinion by Justice Kem Thompson Frost
Panel members: Justices John Anderson, Wanda Fowler and Kem T. Frost
Case style: Clear Lake City Water Authority v. Friendswood Development Company, Ltd.
Trial court: 281st District Court of Harris County (Judge David J. Bernal)
Disposition: Reversed and Rendered

OPINION BY JUSTICE FROST

This case arises from a contract dispute between a water authority and a development company. When the development company brought suit asserting breach of contract, the water authority asserted governmental immunity from suit. By interlocutory appeal, the water authority now challenges the trial court's order denying its plea to the jurisdiction. Concluding the legislature has not waived the water authority's immunity from suit, we reverse the trial court's order and render judgment dismissing the case for lack of subject-matter jurisdiction.

I. Factual and Procedural Background

Appellant Clear Lake Water Authority (the "Authority") is a conservation and reclamation district under article 16, section 59 of the Texas Constitution that operates as a water control and improvement district under Texas statutes.[1] Appellee Friendswood Development Company, Ltd. ("Friendswood Development") is a developer owning land within the boundaries of the Authority.

In March 1998, the Authority and Friendswood executed a document entitled "Sales Agreement and Lease of Facilities" ("the Agreement"). Under the Agreement, Friendswood was to arrange for the construction of water distribution lines, sanitary sewer lines, and drainage facilities to provide service to houses Friendswood proposed to build on its land; and the Authority agreed to purchase or lease the completed facilities.[2]
The Agreement gave the Authority the right to purchase the facilities with either bond proceeds or funds it collects each year from user fees and property taxes. Although the Authority had the right to use general revenues to purchase the facilities, it was not obligated to do so, and could rely solely on bond proceeds. The Authority’s obligation to pay with bond proceeds was conditioned on voter approval of bonds at a bond election. The Authority did not promise when it would hold a bond election, or that any bond measure would be approved by the voters, but it did promise "that it shall include in any bond election it does hold subsequent to the effective date of this Agreement bond authorization in an amount sufficient to pay the purchase price of the Facilities."[3]

The Authority conducted bond elections in May 1998 and October 1998. In each of those elections, a measure was proposed that would have authorized the issuance of bonds sufficient to permit the Authority to purchase the facilities. Both times, the measures failed.

In July 2004, the Authority’s board of directors voted to conduct another bond- authorization election, scheduled for September 11, 2004. In the election, the Authority sought voter authorization of $29.1 million in bonds, but that amount did not include funds required to pay for the facilities. At the September election, the voters approved by a ten to one margin authorization of the $29.1 million in bonds. According to Friendswood, the Authority currently uses the facilities free of charge.

Friendswood sued the Authority, asserting the Agreement obligated the Authority to submit the same proposition to the voters in every later bond election it held, unless and until the voters approved bonds to fund the purchase of the facilities. Friendswood claimed the Authority breached the contract by refusing to submit such a proposition to the voters in the September 2004 election and sought more than $1 million in damages allegedly resulting from the Authority’s breach of contract.

The Authority filed a plea to the jurisdiction or, alternatively, motion for summary judgment, contending governmental immunity from suit bars this action. Friendswood responded to the plea, and filed its own motion for summary judgment. On February 5, 2007, the trial court denied the Authority’s plea to the jurisdiction, and the Authority filed this appeal the same day. The following day, Friendswood filed an emergency motion requesting the district court to vacate its February 5 denial to the plea to the jurisdiction. On February 8, 2007, the district court granted Friendswood’s emergency motion and vacated the February 5 order. On February 12, the district court signed an order again denying the Authority’s plea to the jurisdiction. The district court also signed an order granting final summary judgment awarding Friendswood $1,120,235.99 in damages. The same day, Friendswood moved this court to dismiss the Authority’s appeal on the ground that, by vacating the February 5 order, the district court had mooted the appeal. This court denied Friendswood’s motion. See Tex. R. App. P. 27.3.

II. Issue Presented for Review

The Authority presents a single issue for review: Did the district court err in denying the Authority’s plea to the jurisdiction? The Authority contends, as a matter of law, that governmental immunity bars Friendswood’s lawsuit.

III. Applicable Law and Standard of Review

A. Immunity

When a political subdivision of the State is immune from suit under the doctrine of governmental immunity, a court lacks subject-matter jurisdiction over the suit.[4] Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit bars suit against the entity altogether. Id. When a governmental entity enters into a contract, that entity waives immunity from liability and voluntarily binds itself, just as any other party would, to the terms of the contract, but that entity does not thereby waive immunity from suit. Id. For there to be a waiver of immunity from suit in the contract-claim context, the Legislature must have waived immunity from suit as to the claim in question by clear and unambiguous language. See Tex. Gov’t Code Ann. ' 311.034 (Vernon Supp. 2007) (providing that a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language); Tooke, 197 S.W.3d at 332B33 (requiring clear and unambiguous language to waive governmental immunity).

Courts have little difficulty in recognizing the Legislature’s intent to waive immunity from suit when a statute contains language expressly waiving such immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003). Absent such express waiver language, it has been rare for Texas courts to conclude that the Legislature waived immunity from suit. Id. In Wichita Falls State Hospital, the Texas Supreme Court noted that, in the absence of express waiver language, Awe have employed several aids to help guide our analysis in determining whether the Legislature has clearly and unambiguously waived sovereign immunity." Id. The high court described these aids as follows:

First, a statute that waives the State’s immunity must do so beyond doubt, even though we do not insist that the statute be a model of "perfect clarity." For example, we have found waiver when the provision in question would be meaningless unless immunity were waived.

Second, when construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity. In this respect, our methodology resembles that of the United States Supreme Court when it considers a purported waiver of the federal government’s sovereign immunity. If the text and history of the statute leave room to doubt whether the Legislature intended to waive sovereign immunity, we are less likely to find a waiver.

Third, if the Legislature requires that the State be joined in a lawsuit for which immunity would otherwise attach, the Legislature has intentionally waived the State’s sovereign immunity.

Finally, we are cognizant that, when waiving immunity by explicit language, the Legislature often enacts simultaneous measures to insulate public resources from the reach of judgment creditors. Therefore, when deciding whether the Legislature intended to waive sovereign immunity and permit monetary damages against the State, one factor to consider is whether the statute also provides an objective limitation on the State’s potential liability. Id. at 697-98 (citations omitted).

Even in Wichita Falls State Hospital, the Texas Supreme Court did not state that courts are required to use these aids in determining whether the Legislature has clearly and unambiguously waived governmental immunity. See id. at 697-702. In addition, in Tooke, the Texas Supreme Court noted that the court of appeals had used these four aids in its analysis; however, the Tooke court did not use these aids in its determination as to whether the statute in question clearly and unambiguously waived governmental immunity. See Tooke, 197 S.W.3d at 330-45. We have not found any instances of the Texas Supreme Court using these aids after its decision in Tooke. Though Tooke court did not approve or disapprove of the use of these aids, it appears that courts may use these aids but are not required to do so.

B. Standard of Review

In filing a plea to the jurisdiction, a litigant challenges the trial court’s subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court’s ruling on the plea. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Upon review, we consider the pleadings and the evidence pertinent to the jurisdictional inquiry; we do not consider the merits of the case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex. 1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.

IV. Analysis

In 1963, the Texas Legislature created the Authority as a conservation and reclamation district under article 16, section 59 of the Texas Constitution. See Tex. Const. art. XVI, ' 59; Act of Apr. 18, 1963, 58th Leg., R.S., ch. 101, 1963 Tex. Gen. Laws 164, 173. The Authority exercises the rights, powers, privileges, authority, and functions conferred and imposed by Texas statutes regarding water control and improvement districts. See id.
Such water control and improvement districts are political subdivisions of the State that are generally entitled to governmental immunity. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 549B50 (Tex. 2004) (concluding that water control and improvement district is a political subdivision of the State generally entitled to governmental immunity); Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 391 (Tex. 1977) (concluding that the Authority is a political subdivision of the State).

Therefore, under the doctrine of governmental immunity, the Authority is immune from suit in this case unless the Legislature has waived the Authority’s immunity from suit by clear and unambiguous language. See Tooke, 197 S.W.3d at 332-33; see also Tex. Gov’t Code Ann. § 311.034. In its pleadings and in its briefing, Friendswood asserts that the Legislature waived the Authority’s immunity from suit under section 49.066 of the Texas Water Code, or in the alternative, under section 271.152 of the Texas Local Government Code. See Tex. Water Code Ann. ' 49.066 (Vernon 2000); Tex. Loc. Gov’t Code Ann. ' 271.152 (Vernon 2005).

A. Did the Legislature waive the Authority’s immunity from suit under Texas Water Code section 49.066?

Chapter 49 of the Texas Water Code applies to the Authority. See Tex. Water Code Ann. § 49.001(a)(1) (Vernon Supp. 2006); id. § 49.002 (Vernon 2000); Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 29 (Tex. App.-San Antonio 2006, pet. filed). Section 49.066, entitled "Suits," provides:

(a) A district may sue and be sued in the courts of this state in the name of the district by and through its board. A suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board. All courts shall take judicial notice of the creation of the district and of its boundaries.
(b) Any court in the state rendering judgment for debt against a district may order the board to levy, assess, and collect taxes or assessments to pay the judgment.
(c) The president or the general manager of any district shall be the agent of the district on whom process, notice, or demand required or permitted by law to be served upon the district may be served.
(d) Except as provided in Subsection (e), no suit may be instituted in any court of this state contesting:
(1) the validity of the creation and boundaries of a district created under this code;
(2) any bonds or other obligation created under this code; or
(3) the validity or the authorization of a contract with the United States by the district.
(e) The matters listed in Subsection (d) may be judicially inquired into at any time and determined in any suit brought by the State of Texas through the attorney general. The action shall be brought on good cause shown, except where otherwise provided by other provisions of this code or by the Texas Constitution. It is specifically provided, however, that no such proceeding shall affect the validity of or security for any bonds or other obligations theretofore issued by a district if such bonds or other obligations have been approved by the attorney general as provided by Section 49.184.[5]
(f) A district or water supply corporation shall not be required to give bond for appeal, injunction, or costs in any suit to which it is a party and shall not be required to deposit more than the amount of any award in any eminent domain proceeding.

Tex. Water Code Ann. § 49.066. In 1997, this court concluded that the Legislature had waived the immunity from suit of all districts covered by section 49.066 based on the "sue and be sued" sentence in section 49.066(a). See Loyd v. ECO Res., Inc., 956 S.W.2d 110, 122 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (relying on Missouri Pacific R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812 (Tex. 1970)).

However, this part of Loyd is no longer good law following the Texas Supreme Court’s overruling of Missouri Pacific in Tooke.[6] See Tooke, 197 S.W.3d at 342-43.

Following Tooke, we have found only two cases addressing whether the Legislature waived immunity from suit in section 49.066, and both cases conclude there is no waiver. See Boyer, Inc. v. Trinity River Auth. of Tex., No. 2-07-052-CV, CS.W.3dC,C, 2008 WL 163560, at *3 (Tex. App.-Fort Worth Jan. 17, 2008, no pet. h.); Bexar Metro. Water Dist., 220 S.W.3d at 29-32.

First, we note that neither immunity from suit nor governmental immunity is expressly waived in section 49.066; these terms are not even mentioned in this section. See Tex. Water Code Ann. §49.066. Therefore, this court must determine if this is one of the rare instances in which the Legislature waived immunity from suit by clear and unambiguous language but without express reference to immunity. See Wichita Falls State Hosp., 106 S.W.3d at 697.

The language in the first and third sentences of section 49.066(a) was contained in the statute at issue in Missouri Pacific. See Tooke, 197 S.W.3d at 338; Missouri Pacific R.R. Co., 453 S.W.2d at 813.
We are bound by the Tooke court’s conclusion that such language alone is not sufficient to waive immunity from suit. See Tooke, 197 S.W.3d at 342-43.

In 1999, the Legislature amended section 49.066(a) to add what is now the second sentence of section 49.066(a). See Act of May 30, 1999, 76th Leg., R.S., ch. 1354, ' 8, 1999 Tex. Gen. Laws 4589, 4591. In this sentence the Legislature states that a suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board; however, it does not state that all parties to such contracts may sue the district for breach of these contracts or that immunity from suit as to all such claims is waived.

The Tooke court held that there was no waiver of immunity from suit in language stating that the governmental entity "may contract and be contracted with, implead and be impleaded in all courts and places and in all matters whatsoever. . . ." Tooke, 197 S.W.3d at 344. The Tooke court concluded that such language was not a clear and unambiguous waiver of immunity from suit; rather, the Tooke court concluded all that was clearly stated was that the governmental entity can be sued and impleaded in court when suit is permitted, not that immunity is waived for all suits. Id. Likewise, we conclude that all the second sentence of 49.066(a) clearly conveys is that, if another statute (for example section 271.152[7]) waives immunity as to a contract suit against a district, then such a suit may be brought only on the type of contract described in section 49.066(a). Id.; Bexar Metro. Water Dist., 220 S.W.3d at 31. If in 1999, the Legislature intended to waive the immunity from suit of all water districts as to claims for breach of written contracts approved by the district’s board, then it would seem strange that six years later the Legislature expressly waived immunity as to claims based on certain types of written contracts.[8] See Tex. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005); Bexar Metro. Water Dist., 220 S.W.3d at 32.

Similarly, in section 49.066(b), the Legislature describes relief that may be awarded by any court rendering judgment for debt against a district. See Tex. Water Code Ann. § 49.066(b). In this statute the Legislature did not state that any suits against a district on a debt are permitted or that immunity is waived as to such suits. We conclude that all section 49.066(b) clearly says is that, if another statute waives immunity from suit against a district on a debt, then any court rendering judgment on that debt may award the relief stated in section 49.066(b).[9] See Tooke, 197 S.W.3d at 344; Bexar Metro. Water Dist., 220 S.W.3d at 31.

In section 49.066(c), the Legislature specifies the people who are the agents on whom may be served any process, notice, or demand required or permitted by law to be served on the Authority. See Tex. Water Code Ann. §49.066(c). The Legislature does not state when the Authority’s agents may be served with any process, notice, or demand, and it does not clearly and unambiguously waive immunity from suit. See Tooke, 197 S.W.3d at 344; Bexar Metro. Water Dist., 220 S.W.3d at 31.

In section 49.066(d) and (e), the Legislature prohibits parties other than the Attorney General of Texas from instituting certain kinds of suits and states that the Attorney General may bring suit on behalf of the State, on good cause shown, to inquire into the matters listed in section 49.066(d). Because the present suit was not brought by the Attorney General and because it does not inquire into the matters listed in section 49.066(d), this part of section 49.066 does not waive the Authority’s immunity from suit in this case. See Bexar Metro. Water Dist., 220 S.W.3d at 31.

In section 49.066(f), the Legislature states that the Authority cannot be required to give bond for appeal, injunction, or costs in any suit to which it is a party and that the Authority is not required to deposit more than the amount of any award in any eminent domain proceeding. See Tex. Water Code Ann. §49.066(f). The instant case is not an eminent domain proceeding. In section 49.066(f), the Legislature does not state when the Authority may properly be made a party to a suit, and it does not clearly and unambiguously waive immunity from suit. See Tooke, 197 S.W.3d at 344; Bexar Metro. Water Dist., 220 S.W.3d at 31. This language may properly apply to suits in which there is no immunity from suit, for example unconstitutional takings cases or claims under the Texas Tort Claims Act, or to cases in which immunity has not been waived and the Authority is seeking a judicial determination in this regard. See Bexar Metro. Water Dist., 220 S.W.3d at 31.
Though we are not required to do so, we choose to examine the four aids from Wichita Falls State Hospital. See 106 S.W.3d at 697-98. As to the first aid, for the reasons stated above, the Legislature has not waived the Authority’s immunity from suit in this case beyond doubt, and section 49.066 would not be meaningless unless immunity from suit is waived. As to the second aid, the text and history of section 49.066 leave room to doubt whether the Legislature intended to waive the Authority’s governmental immunity. As to the third aid, the Legislature does not require in section 49.066 that the State or the Authority be joined in any lawsuit. As to the fourth aid, section 49.066 does not provide any objective limitation on the State’s potential liability.[10] Compare Tex. Water Code Ann. § 49.066 (failing to impose any objective limitation on the State’s potential liability), with Tex. Loc. Gov’t Code Ann. § 271.153 (Vernon 2005) (imposing objective limits on recovery under section 271.152 by excluding recovery for punitive damages, most consequential damages, and damages for unabsorbed home office overhead). Therefore, none of the Wichita Falls State Hospital aids weighs in favor of the existence of a clear and unambiguous waiver of immunity from suit in section 49.066.
In sum, after carefully reviewing section 49.066 under existing precedents, we conclude that in this statute the Legislature did not waive the Authority’s immunity from suit by clear and unambiguous language.[11] See Boyer, Inc., __ S.W.3d at ___, 2008 WL 163560, at *3; Bexar Metro. Water Dist., 220 S.W.3d at 29-32.
B. Did the Legislature waive the Authority’s immunity from suit under Local Government Code section 271.152?

Friendswood also contends that the Legislature waived the Authority’s immunity from suit in section 271.152. See Tex. Loc. Gov’t Code ' 271.152. In 2005, the Legislature enacted subchapter I of chapter 271 of the Local Government Code, comprising sections 271.151-.160. See Act of May 23, 2005, 79th Leg., R.S., ch. 604, ' 1, 2005 Tex. Gen. Laws 1548 (codified at Tex. Loc. Gov’t Code '' 271.151-.160). Unlike Texas Water Code section 49.066, section 271.152 of the Local Government Code contains an express waiver of immunity from suit as to certain breach-of-contract claims:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter. Tex. Loc. Gov’t Code § 271.152.

The Authority is included in the definition of a "local government entity" because that definition includes conservation and reclamation districts, water control and improvement districts, and water control and preservation districts. Id. § 271.151(3). A "contract subject to this subchapter," as used in section 271.152, means "a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local government entity."[12] Id. § 271.151(2). Section 271.152 provides an express waiver of immunity from suit, but only as to the breach-of-contract claims that fall within the definition of a "contract subject to this subchapter." See Tex. Loc. Gov’t Code § 271.152; Tooke, 197 S.W.3d at 342, 346 (stating that section 271.152 is a limited waiver of immunity from suit for breach of contract under certain circumstances and that it is a more measured approach that waives immunity as to certain contract claims). Therefore, we must determine whether the Agreement falls
within this definition. See Tex. Loc. Gov’t Code ' 271.151(2).

The Agreement Between the Authority and Friendswood Development

In the underlying suit, Friendswood seeks damages resulting from the Authority’s alleged breach of the Agreement by failing to include in a bond election subsequent to the effective date of the Agreement a proposal for bond authorization in an amount sufficient to pay the purchase price for the facilities, which already are installed. If the voters had approved such a bond-authorization proposal, then the Authority would have an obligation under the Agreement to buy the facilities with the bond proceeds. At present, Friendswood still owns the facilities, so it would be selling to the Authority the fully constructed and installed facilities. The Agreement is entitled "Sales Agreement and Lease of Facilities." Its essential terms are described below:

• Friendswood is developing land within the Authority and desires that water supply, waste disposal, and drainage facilities be provided to such land prior to the time at which the Authority can obtain voter approval and pay for the construction and acquisition of such facilities.
• Friendswood and the Authority desire to provide for the design, engineering, construction, acquisition, operation, maintenance, lease, and sale of all water distribution lines, sanitary sewers, and drainage facilities required to serve the Subdivision in question, such water distribution lines, sanitary sewers, and drainage facilities are collectively referred to in the Agreement as the "Facilities."
• Friendswood will cause the Facilities to be constructed under contracts with third-party contractors, in accordance with the rules of a state conservation commission, and subject to approval by the Authority’s engineers or Board of Directors.
• Subject to Friendswood’s compliance with the Agreement and reasonable development of the subdivision, the Authority agrees to serve the water and wastewater requirements of the subdivision, subject to certain limitations.
• Friendswood agrees to sell to the Authority all completed portions of the Facilities. The Authority also accepts assignment of any unperformed portion of the Agreement no more than 30 days after the Authority receives bond proceeds for the Authority to use as payment for the purchase price.
• Friendswood agrees to lease the Facilities to the Authority without charge until the Authority purchases the Facilities.
• Friendswood agrees, at its own expense, to cause to be constructed all streets, roads, and bridges described in the respective plats for the Subdivision.

Presuming, without deciding, that the Agreement is a written contract stating the essential terms of the agreement and that it is properly executed on behalf of the Authority,[13] to be subject to section 271.152, the Agreement also must be an "agreement for providing goods or services to the [Authority]." Tex. Loc. Gov’t Code ' 271.151(2). The Authority argues that the Agreement provides for the potential sale to the Authority of the facilities, which are real property, rather than goods or services. We agree. See San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex. 2000) (defining real property as "land, and generally whatever is erected or growing upon or affixed to land"); Logan v. Mullis, 686 S.W.2d 605, 607 (Tex. 1985) (concluding that a tank car converted to a drainage culvert and affixed to land is real property, not personalty). If the materials used in the construction of the facilities were goods in the past, these materials are no longer moveable and now have been installed and affixed to the land; therefore, we conclude that the facilities are not goods. See Tex. Bus. & Com. Code Ann. §2.105(a) (Vernon 1994) (defining sale-of-goods contracts as involving the sale of "all things . . . moveable . . . at the time of identification to the contract"); Lang, 35 S.W.3d at 640; G-W-L, Inc. v. Robichaux, 643 S.W.2d 392, 394 (Tex. 1982) (concluding that sale of real property and improvements thereon is not a sale of goods), overruled in part on other grounds by Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex. 1987). Therefore, there is no agreement to provide goods to the Authority. See Bexar Metro. Water Dist., 220 S.W.3d at 32 (stating the waiver of immunity from suit in section 271.152 does not waive a water district’s immunity for breaching a real-estate sales contract).

In addition, we conclude that there is no agreement to provide services to the Authority.[14] Friendswood concedes that it holds legal title to the facilities, and on the condition that Friendswood develops the property, the Authority conditionally agreed to serve the water and wastewater requirements of the subdivision, subject to certain limitations, and to lease and purchase the facilities provided that the facilities meet specified guidelines. The potential purchase of the facilities by the Authority is not a provision of services. Friendswood’s agreement to hire third parties to construct the facilities and to build the roads for the subdivision arguably could be considered the provision of services, as could the Authority’s agreement to serve the water and wastewater requirements of the subdivision. Even presuming that the Agreement contains these agreements to provide services, there still is no agreement to provide these alleged services to the Authority, as required to fall within the waiver of immunity in section 271.152. Under the Agreement, the construction of the facilities and of the roads are provided to the subdivision for the use and service of its inhabitants, rather than to the Authority. Likewise, the Authority agrees to serve the water and wastewater requirements of the subdivision and does not provide these alleged services to itself.[15] There is no agreement for providing goods or services to the Authority as required by section 271.152.[16] See Tex. Loc. Gov’t Code ' 271.151(2). Under the unambiguous language of sections 271.151 and 271.152 and of the Agreement, the Agreement does not fall within the category of contracts as to which the Legislature has waived immunity from suit in section 271.152.

V. Conclusion

Having determined that in both of the statutes upon which Friendswood relies the Legislature has not waived the Authority’s immunity from suit by clear and unambiguous language, we sustain the Authority’s issue, reverse the trial court’s order, and render judgment sustaining the Authority’s plea to the jurisdiction and dismissing this case for lack of subject matter jurisdiction.[17]

/s/ Kem Thompson Frost
Justice

Judgment rendered and Opinion filed February 12, 2008.
Panel consists of Justices Anderson, Fowler, and Frost.
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[1] See Tex. Const. art. XVI, ' 59; Act of Apr. 18, 1963, 58th Leg., R.S., ch. 101, 1963 Tex. Gen. Laws 164, 173; Tex. Water Code Ann. chs. 49, 51 (Vernon 2000 & Supp. 2007).
[2] We refer to the water distribution lines, sanitary sewer lines, and drainage facilities collectively as "facilities."
[3] Original emphasis omitted.
[4] Often, courts use the terms "sovereign immunity" and "governmental immunity" interchangeably; nevertheless, they are two distinct concepts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). "Sovereign immunity" refers to a state’s immunity from suit and liability. Id. Its protection extends not only to the state, but also to the varying divisions of state government, including agencies, boards, hospitals, and universities. "Governmental immunity" protects political subdivisions of the state, including counties, cities, and school districts. Id.
[5] Section 49.184 of the Water Code refers to approval of bonds by the Attorney General and the registration of bonds. See Tex. Water Code Ann. § 49.184 (Vernon Supp. 2007).
[6] Likewise, the portion of a 2003 case from this court indicating that the Legislature has waived the Authority’s immunity from suit is no longer good law after Tooke. See Clear Lake City Water Auth. v. Kirby Lake Development, Ltd., 123 S.W.3d 735, 750B51 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).
[7] We use this example only as an illustration. We recognize that the Legislature enacted section 271.152 six years after it enacted the second sentence in section 49.066(a).
[8] Friendswood asserts that the Legislature included water districts in the definition of a "local government entity" in section 271.152 to reemphasize its prior intent to waive immunity from suit that the courts allegedly have ignored. However, this argument is inconsistent with the language of section 271.152, in which the Legislature does not waive immunity from suit as to all claims against water districts (as some allege was the intent in the first sentence of section 49.066(a)) and the Legislature does not waive immunity from all suits on board-approved, written contracts (as some allege was the intent in the second sentence of section 49.066(a)).
[9] In any event, presuming, without deciding that in section 49.066(b) the Legislature waives immunity from suit as to debt actions, Friendswood does not seek judgment on a debt in this case; rather, its seeks damages allegedly resulting from a breach of contract.
[10] Friendswood asserts that, in section 49.066, the Legislature does impose objective limitations on the state’s potential liability because it requires board-approved written contracts, prevents private parties from contesting the matters stated in section 49.066(d), and relieves the Authority from having to post bonds or deposit amounts beyond the amount of the award in eminent domain proceedings. However, the fourth aid looks to objective limitations imposed on the government entity’s liability on the claims for which immunity allegedly has been waived. Precluding certain types of suits does not fit in this category. Waiving any bond requirement does limit the governmental entity’s potential litigation expenses; however, governmental entities are often exempted from such ancillary expenses regardless of whether immunity has been waived. In addition, such a waiver does not limit the governmental entity’s exposure as to the claims for which the Legislature allegedly waived immunity. Furthermore, limiting the amount the governmental entity has to deposit when it is condemning land in an eminent-domain proceeding is not a limitation on the amount of any claims against the governmental entity.
[11] Friendswood asserts that this court should give significance to the fact that the Legislature used "sue and be sued" language at a time when the Texas Supreme Court had held that this language waived immunity from suit. However, the Tooke court gave this fact no significance; therefore, we give this fact no significance. See Tooke, 197 S.W.3d at 333-42; Bexar Metro. Water Dist., 220 S.W.3d at 30.
[12] This section applies to claims that arise before its effective date of September 1, 2005:
"only if sovereign immunity has not been waived with respect to the claim before the effective date of this Act. A claim that arises under a contract executed before the effective date of this Act and with respect to which sovereign immunity has been waived is governed by the law in effect on the date the contract was executed, and the former law is continued in effect for that purpose.
Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex. Gen. Laws 1548, 1549.
[13] Friendswood also relies on City of Houston v. Clear Channel Outdoor, Inc., for the proposition that the Agreement falls within the scope of section 271.152. See 233 S.W.3d 441, 447 (Tex. App.-Houston [14th Dist.] 2007, no pet.). However, that case is not on point. The only issue decided in that case was that the trial court did not err in denying the City of Houston’s plea, in which the City asserted that there was no waiver of immunity because the contract was not "properly executed on behalf of the [City of Houston]" under Local Government Code section 271.151(2). See id. at 442-43, 445B47. The City of Houston court did not address the meaning or application of the language requiring that there be an "agreement for providing goods or services to the local governmental entity." See Tex. Loc. Gov’t Code ' 271.151(2); id. at 445B47.
[14] Friendswood asserts that, in section 271.152, the Legislature waived the Authority’s immunity from suit for all contracts into which the Authority enters. The unambiguous language of sections 271.151 and 271.152 as well as the Tooke decision are to the contrary. See Tex. Loc. Gov’t Code '' 271,151(2), 271.152; Tooke, 197 S.W.3d at 342, 346 (stating that section 271.152 is a limited waiver of immunity from suit for breach of contract under certain circumstances and that it is a more measured approach that waives immunity as to certain contract claims); see also Bexar Metro. Water Dist., 220 S.W.3d at 32 (stating that the waiver of immunity from suit in section 271.152 did not operate as a waiver of a water district’s immunity from suit for breach of a contract to sell real estate).
[15] Friendswood relies on several cases involving construction contracts for real property for the proposition that the Agreement involves construction services on real property. See City of Mesquite v. PKG Contracting, Inc., 148 S.W.3d 209 (Tex. App.-Dallas 2004) (involving construction of a storm drainage system), rev’d, 197 S.W.3d 388, 388-89 (Tex. 2006) (reversing and remanding to the trial court so that plaintiff could have opportunity to argue in the trial court that the Legislature waived city’s immunity from suit in the recently enacted section 271.152); City of Carrollton v. McMahon Contracting, L.P., 134 S.W.3d 925 (Tex. App.- Dallas 2004) (involving street repairs), rev’d 197 S.W.3d 387 (Tex. 2006) (reversing and remanding to the trial court so that plaintiff could have opportunity to argue in the trial court that the Legislature waived city’s immunity from suit in the recently enacted section 271.152); Satterfield & Pontikes Constr., Inc. v. Irving Indep. Sch. Dist., 123 S.W.3d 63 (Tex. App.- Dallas 2003) (involving construction of new school building), rev’d, 197 S.W.3d 390, 391 (Tex. 2006) (reversing and remanding to the trial court so that plaintiff could have opportunity to argue in the trial court that the Legislature waived city’s immunity from suit in the recently enacted section 271.152). These cases are distinguishable as each of them involves a governmental entity hiring a construction company to perform construction or repair services on property the local government owned, but they do not involve contracts for the sale of realty to the local governmental entity or for the provision of services to third parties. Furthermore, in these cases, the court of appeals did not address section 271.152, and the Texas Supreme Court only remanded to the trial court so that the plaintiff could have the opportunity to make an argument under the recently enacted section 271.152.
[16] Our analysis is consistent with the Texas Supreme Court’s decision in Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Property/Casualty Joint Self-Insurance Fund, because in that case, our high court concluded that the contract in question was an agreement under which services were provided to the local governmental entity. See 212 S.W.3d 320, 327 (Tex. 2006).
[17] We need not and do not address the issue of whether the trial court erred in striking the affidavit of William Schweinle, the Authority’s general counsel.