BCM Doctor's interlocutory appeal dismissed in medmal suit

Doctor at private university hospital not entitled to invoke immunity available to employees of governmental entities and seek interlocutory appeal in bid to have medical malpractice suit dismissed, First Court of Appeals says (again).

Zimmerman, MD v. Anaya No. 01-07-00570-CV (Tex.App.- Houston [1st Dist.] June 5, 2008)(Bland) (HCLC, interlocutory appeal not authorized, dismissed for want of appellate jurisdiction, interlocutory appeals)

Opinion by Justice Jane Bland

Panel members: Chief Justice Radack, Justices Jennings and Bland

Full case style: Geoffrey Zimmerman, M.D. v. Wendy Gonzalez Anaya, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, IndividuallyAppeal from 113th District Court of Harris County

Trial Court Judge: Hon. Patricia Hancock

Disposition: Appeals dismissed for want of appellate jurisdiction

MEMORANDUM OPINION

Wendy Gonzalez Anaya and Jose Hernandez (“the parents”) sued Geoffrey Zimmerman, M.D. for alleged negligence during the delivery of their son, which caused their son to suffer personal injuries and death.

Zimmerman moved for summary judgment on immunity grounds, asserting that, as a resident of Baylor College of Medicine who provided publicly funded health care at Ben Taub Hospital, he is entitled to immunity pursuant to section 101.106 of the Texas Civil Practice and Remedies Code because Baylor qualifies as a governmental unit under section 312.007 of the Texas Health and Safety Code, making him an employee of a state agency for purposes of immunity under the Tort Claims Act.


The parents have moved to dismiss on the ground that section 51.014(a)(5) does not authorize Zimmerman’s appeal. That section provides that “[a] person may appeal from an interlocutory order of a district court, county court at law, or county court that . . . denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state . . . .” Tex. R. Civ. P. § 51.014(a)(5).

The parents assert that, because Zimmerman is not an employee or officer of the state or a political subdivision of the state, section 51.014(a)(5) does not apply to his appeal, and no other basis for appellate jurisdiction exists.

Our Court’s recently issued opinion and judgment on rehearing in Klein v. Hernandez controls our disposition of Zimmerman’s appeal. See No. 01-06-00569-CV, 2008 WL 1747479 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet. h.). In Klein, we held that we lacked jurisdiction over a Baylor resident’s interlocutory appeal of the interlocutory denial of his motion for summary judgment, in which, like Zimmerman, he asserted that section 312.007 of the Texas Health and Safety Code entitles him to claim immunity from liability under the Texas Tort Claims Act.

We expressly held that section 312.007 did notconfer[] upon Klein or Baylor . . . “sovereign immunity,” which must be waived under the Texas Tort Claims Act. . . . [W]e hold that the Legislature’s grant of limited liability to Dr. Klein and Baylor and provision of indemnity for Klein in chapter 312 does not amount to a conferral of “sovereign immunity,” which deprived the trial court of subject matter jurisdiction . . . .Id. at *7.

In applying this holding to section 51.014(a)(5) of the Civil Practice and Remedies Code, we observed that that provision “authorizes a person to appeal from an order that ‘denies a motion for summary judgment based on an assertion of immunity by an individual who is an [actual] officer or employee of the state or a political subdivision of the state.’” Id. (quoting Tex. R. Civ. P. § 51.014(a)(5) (emphasis and brackets in the original)).

Relying solely on section 312.007(a) as grounds for immunity, Zimmerman emphasizes that section 312.007(a) expressly provides that a person in his position is to be treated as if he were “an employee of a state agency . . . for purposes of determining the liability, if any, of the person for the person’s acts or omissions while engaged in the coordinated or cooperative activities of the . . . school . . . .” (quoting Klein, 2008 WL 1747479 at *5) (emphasis added). The immunity conferred by section 101.106 of the Civil Practice and Remedies Code, however, cannot extend beyond the reach of section 312.007(a).

Determining liability is not synonymous with conferring immunity from suit, which the Legislature addresses expressly in section 312.007(b) by incorporating chapter 101 by reference. At the time the Legislature enacted section 312.007(b), it mirrored the then-existing language in section 101.106, which barred an action against defendant upon judgment or settlement of a claim against the governmental unit at the outset of filing suit. Compare Tex. Civ. Prac. & Rem Code. Ann. § 101.106 historical note (Vernon 2005) (observing that before the 2003 amendment, the section provided that “[a] judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim”) with Tex. Health & Safety Code Ann. § 312.007(b) (Vernon 2001) (enacted in 1989) (providing that “A judgment in an action or settlement of a claim against a . . . supported medical . . . school bars any action involving the same subject matter by the claimant against an . . . intern [or] employee of the . . . school . . . whose act or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was asserted as provided under Section 101.106, Civil Practice and Remedies Code”). When the Legislature amended section 101.106 to require an election at the outset of filing suit, it did not alter section 312.007(b). See Tex. Civ. Prac. & Rem Code. Ann. § 101.106 (Vernon 2005) (as amended in 2003). Consequently, our holding in Klein, that the language of section 312.007 does not make Baylor the equivalent of a governmental unit for purposes of section 54.014(a)(5) of the Civil Practice and Remedies Code, applies with equal force to Zimmerman’s case. See id. at *7.

Because section 312.007(a) is not an immunity statute and Zimmerman does not meet the requirements of section 312.007(b), we hold that section 51.014(a)(5) of the Civil Practice and Remedies Code does not confer appellate jurisdiction over Zimmerman’s appeal. See id.

Accordingly, without addressing the merits, we dismiss Zimmerman’s appeal for lack of jurisdiction.

Jane Bland

JusticePanel consists of Chief Justice Radack and Justices Jennings and Bland.

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.

Landowners prevail in inverse condemnation suit over dirt

In an opinion written by retired judge Frank C. Price, a three-judge panel of the Fourteenth Court of Appeals reverses trial court's grant of the state's plea to the jurisdiction on a finding that the state was not immune to the claim brought by the landowners.

Brownlow v. State of Texas (Tex.App. - Houston [14th Dist.] Feb. 5, 2008)(Price)(government entities, inverse condemnation suit, sovereign immunity)
REVERSED AND REMANDED: PriceBefore Price, Chief Justice Hedges, Justice Anderson
14-07-00547-CV Charles Lynn Brownlow and Marlene H. Brownlow v. The State of Texas
Appeal from 149th District Court of Brazoria County (Judge Robert E. May)

Conclusion

Because the soil removed for the purpose of constructing the detention facility was neither subject to the initial condemnation proceedings nor included within the Agreed Judgment, it remains the property of the fee owner. The Brownlows have sufficiently demonstrated that they have suffered damage to, or loss of, property and hence have a valid inverse condemnation claim. The State had a permanent easement "for the purpose of opening, constructing, and maintaining a detention/mitigation facility in, over, and across the tract of land for the purpose of making additions to, improvements on, and repairs to said detention facility or an part thereof . . ." (emphasis added). It had a license to use the Brownlow's property only for the purpose stated, not a license to take a valuable commodity and appropriate it to its own uses elsewhere. As such, the State's sovereign immunity is waived.

Accordingly, the judgment of the trial court is reversed and this case is remanded to the trial court for a trial on the merits.

City of Houston sought to enrich itself with illegal fee - Court of Appeals denies immunity defense and reverses trial court

Texas cities and other government entities like to wrap themselves with the legal trappings of "sovereign" immunity, and thus defeat law suits against them on jurisdictional grounds that they might otherwise lose on the merits. Here the City of Houston fails in this scheme as the Fourteenth Court of Appeals, in an opinion by Justice John Anderson, holds that it was collecting an illegal fee, which the plaintiff had paid under duress. New civil county court at law judge Jacqueline Lucci-Smith , formerly with the Harris County Attorney's Office, gets reversed for the first in her new career as a county court judge over the immunity issue.

Saturn Capital Corporation v. The City of Houston, No. (Tex.App. - Houston [14th Dist.] Dec. 11, 2007)(Opinion by Justice Anderson)(sovereign governmental immunity, government entity law, municipalities, illegal fee tax, economic duress)
Panel members: Chief Justice Adele O. Hedges, Justices John Anderson and Charles Seymore
Full style: Saturn Capital Corporation v. The City of Houston ---> See law suits involving City of Houston
Appeal from County Civil Court at Law No 2 [CCCL#2] of Harris County (Hon. Jacqueline Lucci-Smith)

O P I N I O N

Appellant, Saturn Capital Corporation ("Saturn"), appeals the trial court’s granting of the City of Houston’s (the "City") Plea to the Jurisdiction. Finding the trial court erred when it granted the City’s Plea, we reverse and remand to the trial court for further proceedings in accordance with this opinion.

Factual and Procedural Background

In 1992, the City demolished buildings on the property located at 8526 Pitner Road. The City assessed a fee for the cost of the demolition against the Pitner Road property which was owned by L.A. Investments, Inc. When L.A. Investments did not pay the demolition fee, the City filed a demolition lien on the Pitner Road property. On February 15, 2000, the City, Spring Branch Independent School District ("SBISD"), and other taxing authorities, obtained a judgment against L.A. Investments for delinquent taxes on the Pitner Road property. On May 15, 2000, an Order of Sale in Tax Suit was obtained and on June 22, 2000, the constable gave notice that the property would be sold at a public tax sale. With the approval of L.A. Investments, Saturn purchased the tax lien from SBISD and later foreclosed on the tax lien at a public tax foreclosure sale. Saturn purchased the Pitner Road property at the tax sale. The City did not bid at the tax sale. At the time Saturn purchased the Pitner Road property, Saturn, taking the position that the tax sale extinguished all inferior liens, did not pay off the City’s demolition lien.

In 2003, Saturn agreed to sell the Pitner Road property to Pitner Road Affordable Housing, Ltd. However, the title company would not issue title insurance and close the sale unless the City released its demolition lien on the property. In addition, the purchaser was unwilling to go forward with the deal as long as the City refused to release its lien. Saturn, arguing the demolition lien was invalid because it had been extinguished by the tax sale, made demand on the City that it release the lien. The City refused to release the demolition lien until the lien had been paid in full.

Faced with the loss of the sale of the Pitner Road property, Saturn paid the City the full amount of the demolition lien, $88,500.32, under protest and with full reservation of rights to litigate and recover the funds paid. Saturn then filed suit against the City seeking to recover its payment of the demolition lien. The City filed a plea to the jurisdiction arguing it was immune from Saturn’s suit, which the trial court granted. This appeal followed.

Discussion

In a single issue on appeal, Saturn contends the trial court erred when it granted the City’s Plea to the Jurisdiction on the basis of sovereign immunity.

A. The Standard of Review

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted through a plea to the jurisdiction. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Id. at 228. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the pleadings and the evidence relevant to the jurisdictional inquiry. Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App.- Houston [14th Dist.] 2005, no pet.). When reviewing a trial court’s ruling on a plea to the jurisdiction, we construe the plaintiff’s pleadings liberally in the plaintiff’s favor and look to the pleader’s intent. Miranda, 133 S.W.3d at 226. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 228. In addition, the question of whether undisputed evidence, which is the situation we are presented with here, establishes a trial court’s jurisdiction, is a question of law. Id. at 226.

B. Is the City Immune From Saturn’s Suit?

Texas has long recognized, and the City conceded during oral argument, that sovereign immunity does not prevent a party who paid illegal government taxes and fees under duress from filing a lawsuit to seek their repayment. Dallas County Community College District v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005). Thus, to resolve the issue of whether or not the City is immune from Saturn’s suit, two questions must be answered: (1) does Saturn’s payment of the demolition lien constitute the payment of an illegal tax or fee; and (2) if so, did Saturn pay off the demolition lien under duress?

1. The Pitner Road Property Tax Sale Extinguished the City’s Demolition Lien

In Texas, a demolition lien is subordinate to a tax lien. See Tex. Loc. Gov’t Code Ann. ' 214.001(o) (Vernon 1999). Therefore, a tax foreclosure sale extinguishes a demolition lien on the subject property. See Tex. Tax Code Ann. ' 33.95 (Vernon 2001) ("A purchaser for value at or subsequent to the tax sale may conclusively presume the validity of the sale and takes free of any claim of a party with a prior interest in the property. . ."); see also Conseco Finance Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 881B82 (Tex. App.- Fort Worth 2003, pet. denied) (stating that a junior lien does not survive the foreclosure of a superior tax lien). Here, because Saturn purchased the Pitner Road property at a properly conducted tax sale, the City’s inferior demolition lien was extinguished and Saturn took the Pitner Road property free from that lien.

2. Because the Demolition Lien Had Been Extinguished, the City’s Refusal to Release the Demolition Lien and Subsequent Acceptance of Saturn’s Payment of the Lien Amount Constitutes the Collection of an Illegal Fee

A fee is defined as a fixed charge or a charge for a service. The Merriam-webster Dictionary (New Edition, 2004). The City’s demolition lien imposed on the Pitner Road property was to cover the cost incurred by the City when it performed a service: demolishing dangerous buildings on the property. Therefore, the costs of the demolition constitute a fee. As discussed above, the demolition lien was extinguished as a result of the tax sale. Therefore, when the City sent, after the tax sale, a letter to the title company handling Saturn’s sale of the Pitner Road property stating "[The City] will issue releases for the Notice and the Order of Building Official (Clerk’s File Nos. T118848 and N576628, respectively), once the lien(s) have been paid in full," we hold this constitutes an effort to collect an illegal fee.

3. Saturn Paid Off the City’s Demolition Lien Under Duress

Saturn argues that it paid the City’s demolition lien under duress because it faced (1) the loss of the pending sale of the Pitner Road property if the City’s demolition lien was not paid off; and (2) the ultimate loss of the property because if the sale did not go through, it would be unable to continue paying the taxes on the property. In response, the City contends Saturn voluntarily paid the lien as the loss of a pending sale of the property is insufficient to constitute duress. We agree with Saturn.

The Texas Supreme Court has consistently recognized that business compulsion[1] arising from the payment of illegal or improper government fees and taxes coerced by financial penalties, loss of livelihood, or substantial damage to a business can constitute duress and allow for the recovery of an illegal tax or fee. Bolton, 185 S.W.3d at 878. The duress necessary to authorize the recovery of an illegal tax or fee is established when the unauthorized tax or fee is required, necessary, or shall be paid to avoid the government’s ability to charge penalties or halt a person from earning a living or operating a business. Id. at 879. Because the record demonstrates that (1) Saturn faced substantial damage to its business if the Pitner Road property sale did not go through; (2) the sale could not be completed unless the City released its extinguished demolition lien; and (3) Saturn paid off the extinguished demolition lien only after the City demanded payment in full before it would release the lien, the payment was not voluntary but made under duress. Accordingly, sovereign immunity is not at issue and does not preclude Saturn from pursuing its suit against the City.[2] We sustain Saturn’s only issue on appeal.

Conclusion

Having sustained Saturn’s only issue on appeal, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.

/s/ John S. Anderson
Justice

Judgment rendered and Opinion filed December 11, 2007.]

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
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[1] "Business compulsion" has also been referred to as "economic duress" or "implied duress." Dallas County Community College District v. Bolton, 185 S.W.3d 868, 877-78 (Tex. 2005).

[2] In its brief, the City emphasizes the role of Alfred Antonini, the president of Saturn, and alleges that the transfer of the SBISD tax lien to Saturn violates the Fraudulent Transfer Act. These issues constitute affirmative defenses to Saturn’s suit and are not relevant to this appeal, which addresses only the trial court’s subject matter jurisdiction and does not reach the merits of the case. Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App. - Houston [14th Dist.] no pet.).

Harris County Sovereign Immunity Case Heard by Supreme Court Today

December 4, 2007. Texas Supreme Court hears oral argument in an imporant sovereign immunity case involving local hospital district. Harris County Hospital District v. Tomball Regional Hospital, No. 05-0986) (Tex. 200_) (e-briefs)

Opinion below: Tomball Hospital Authority v. Harris County Hospital District, 178 S.W.3d 244 (Tex. App. - Houston [14th Dist.] July 28, 2005, pet. filed)(Opinion by Justice Harvey Hudson)
Subsequent History: The Fourteenth Court of Appeals' construction of sue-and-be-sued clause as a clear waiver of sovereign immunity was rejected by the Texas Supreme Court in Tooke v. City of Mexia, No. 03-0878 (Tex. June 30, 2006), which established new controlling precedent on the statutory waiver issue.

View --> Oral Argument in Harris County Hospital District v. Tomball Hospital District on St. Mary's University's web site
For Petitioner: Ms. Sandra Hachem (Harris County Attorney), from Houston.
For Respondent: Mr. Randal L. Payne (Sullins, Johnston, Rohrbach & Magers), from Houston.

Case summary provided by Supreme Court staff attorney:

The Supreme Court will hear arguments on the issue of whether the immunity issue for hospital district sued for reimbursement by hospital authority. The issue is whether the Harris County Hospital District is immune from the Tomball hospital’s suit seeking compensation because it allegedly treated indigent patients that Harris County should have under state law. Tomball sued to be reimbursed for care given to Harris County patients that Tomball alleges were turned away from Harris County hospitals or referred by those hospitals to Tomball’s. Harris County claims in part that it is exempt from paying other hospitals for treating patients eligible for free care under the Indigent Health Care and Treatment Act. The trial court dismissed Tomball’s suit on Harris County’s jurisdictional plea. The court of appeals reversed, holding that the statute’s language that a hospital district could “sue and be sued” was an unambiguous immunity waiver.
Link to Appellate briefs in Harris County Hospital District v. Tomball Regional Hospital
Link to Court of appeals opinion on 14th Court of Appeals web site

Sovereign immunity bars wrongful death suit by inmate's estate

Chief Justice Adele Hedges affirms dismissal of suit by survivors of inmate electrocuted by downed power line on prison grounds.

Smith v. TDCJ, No. ((Tex.App.- Houston -14th Dist.] Nov. 6, 2007)(Hedges)(governmental entity law, wrongful death, electrocuted inmate, TTCA, sovereign immunity bars claim)
Full style: Alice Smith, Individually and on behalf of Donald Ray Smith, Deceased v. Texas Department of Criminal Justice
Appeal from 412th District Court of Brazoria County (Hon. W. Edwin Denman)
Disposition: Order of Dismissal Affirmed

MEMORANDUM OPINION BY CHIEF JUSTICE ADELE HEDGES

In this wrongful death case, appellant challenges an order granting a plea to the jurisdiction in favor of the Texas Department of Criminal Justice, appellee. We affirm.

I. BACKGROUND

Donald Smith ("decedent"), was an inmate with the Texas Department of Criminal Justice ("TDCJ") and was assigned to a crew responsible for repairing power lines for the State. Decedent was trained and accredited to work on power lines while he was incarcerated at TDCJ.

On May 6, 2005, decedent was called out as part of a crew to repair a downed power line in a horse pasture on TDCJ's property. Decedent's supervisor, Clifford Guant, arrived at the scene around 5:00 p.m. to assess the damaged power line. The rest of the crew, which included supervisor Anthony Allen, inmate Lemons, and decedent, arrived around 5:50 p.m. in trucks equipped with the supplies necessary to repair the downed line. When the crew arrived, they were informed that the power lines were still energized and were told not to go near the line. The power line was hanging three feet off the ground in the open pasture, about 40 feet away from where the trucks were parked.

The crew was then told that the power would be shut off, and they began to unload equipment from the truck. Supervisor Guant notified the TDCJ unit that they were cutting the power. He then directed inmate Millard, another crew member, to pull the power switches. Decedent began unspooling wire from the truck into the open pasture. At this time, supervisor Allen turned his back on the crew to take a personal phone call. While unspooling the wire from the truck, decedent backed into the dangling power line that was still energized with 7200 volts of power. Decedent received an electric shock and, as a result, died three days later.

Alice Smith, decedent's mother, brought this suit individually and on behalf of his estate for wrongful death and survival damages. The trial court granted TDCJ's plea to the jurisdiction, dismissing the case with prejudice for lack of subject matter jurisdiction on the ground that appellant failed to allege facts demonstrating waiver of TDCJ's immunity from suit under the relevant provisions of the Texas Tort Claims Act (the "Act"). Appellant raises two issues in this appeal: (1) the trial court erred in dismissing the case because appellant's evidence raised a fact issue as to whether decedent had actual knowledge of the dangerous condition, a fact that would waive TDCJ's sovereign immunity; and (2) TDCJ was not entitled to an exclusion under the Act because the method by which TDCJ supervised decedent's work on the high voltage lines should be characterized as implementing policy, not a discretionary function of formulating policy.

II. ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). Governmental immunity from suit defeats subject matter jurisdiction. Dallas Area Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mogayzel v. Tex. Dept. of Transp., 66 S.W.3d 459, 463 (Tex. App.-Fort Worth 2001, pet. denied). In performing this review, we do not consider the merits of plaintiff's case, but focus instead on the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). The pleadings are to be construed in favor of the plaintiff, and the court must look to the pleader's intent. Brown, 80 S.W.3d at 555; Tex. Dept. of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App.-Fort Worth 2001, pet. denied). Nevertheless, a waiver of immunity must be clear and unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex. 2006). In sum, we determine whether the plaintiff has pleaded a claim for which a governmental unit has waived immunity by reading the pleadings broadly and the alleged waiver narrowly.

Here, the parties do not dispute that TDCJ is a governmental unit under the Act. Therefore, we will review appellant=s pleadings and jurisdictional evidence to determine if her claims fall within a waiver of immunity under the Act.

B. Waiver of Immunity Under the Act

In appellant's first issue, she alleges that the trial court erred in dismissing the case because her evidence raised a fact issue as to whether TDCJ waived immunity under the Act. Specifically, appellant argues that TDCJ waived its sovereign immunity under section 101.021(2) because: (1) the condition of the premises presented an unreasonable risk of harm to decedent, a licensee; (2) TDCJ, the landowner, knew of the dangerous condition; (3) decedent did not have actual knowledge of the hazardous condition; (4) TDCJ failed to exercise ordinary care to protect decedent from danger; and (5) TDCJ's failure to exercise ordinary care was the proximate cause of decedent's death. See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To support this argument, appellant relies on the deposition testimony of crew members stating that (1) decedent was called out by TDCJ to repair a downed power line energized with 7200 volts of power on its property; (2) decedent was told that the power was going to be cut by inmate Millard; (3) decedent waited a sufficient amount of time before backing into the downed power line; (4) inmate Millard only pulled the power on two switches; and (5) supervisors Allen and Guant knew that one line remained energized but failed to warn decedent. According to appellant, this evidence is sufficient to overcome TDCJ's plea to the jurisdiction because it raises a fact issue as to whether TDCJ waived immunity under section 101.021(2) of the Act.

Under the doctrine of sovereign immunity, a governmental unit is immune from suit and liability in the absence of a constitutional or statutory provision creating such liability. See Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.-San Antonio 1999, no pet.). The Act creates a limited waiver of sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005). In order for immunity to be waived under the Act, the claim must arise under one of three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exclusions from waiver. Medrano, 989 S.W.2d at 144. The three specific areas of liability for which immunity has been waived are (1) injury caused by an employee's use of a motor-driven vehicle, (2) injury caused by a condition or use of tangible personal or real property, and (3) claims arising from premise defects. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021(1), 101.021(2), 101.022 (Vernon 2005); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.CHouston [1st Dist.] 1999, pet. denied).

Appellant's pleadings below and appeal before this Court does not reflect that this suit was prosecuted on an ordinary premise defect theory under section 101.022. See City of Baytown v. Townsend, 548 S.W.2d 935, 939 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). Therefore, appellant's only claim to waiver in the instant appeal is grounded in an injury arising from the condition of real property under section 101.021(2). We now examine the pleadings and jurisdictional evidence appellant offers to support her jurisdictional argument under 101.021(2).

If decedent's injury arose out of the condition of TDCJ's property, it owed decedent the same duty a private landowner owes a licensee. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2). An owner, such as TDCJ, must avoid injuring a licensee by willful, wanton, or grossly negligent conduct. See Payne, 838 S.W.2d at 237. However, when the owner has actual knowledge of a dangerous condition and the licensee does not, the owner's duty is to warn the licensee or make the premises reasonably safe. Id. The elements of proof required to establish liability in the instant case are (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner had actual knowledge of the condition; (3) the licensee did not have actual knowledge of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner's failure was a proximate cause of injury to the licensee. See id.

TDCJ does not dispute the first two elements of liability. However, the third element, that the licensee did not have actual knowledge of the dangerous condition, is key to appellant's first issue. Actual knowledge embraces those things which a reasonably diligent inquiry and means of information at hand would have disclosed. City of San Benito v. Cantu, 831 S.W.2d 416, 425 (Tex. App.-Corpus Christi 1992, no writ); see also Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26-27 (Tex. App.-Dallas 1988, writ denied) (stating that a licensee is also imputed with knowledge of those conditions perceptible to him, or the existence of which can be inferred from the facts within his present or past knowledge). We must now examine the pleadings and jurisdictional evidence to determine whether decedent had actual knowledge of the hazard.

The live power line was hanging three feet from the ground in an open horse pasture when decedent and the rest of his crew arrived. The crew was told that because the downed power line was still energized, they needed to stay away from it. This shows that each member of the crew, including decedent, had actual knowledge of the danger. Even if decedent believed that the power had been cut after he had actual knowledge of the danger, as alleged by appellant, appellant cites no controlling authority that allows an injured party to subsequently lose actual knowledge once that party has been made award of the dangerous condition. See Smith v. Radam, Inc., 51 S.W.3d 413, 415-16 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (stating that a reviewing court will not conduct an independent review of the record and applicable law to determine whether error complained of occurred when appellant fails to cite any controlling authority on that point of error). There were no affirmative representations of fact made by TDCJ that it was safe for decedent to make contact with the downed power line. Instead, decedent assumed that the condition of the property became safe within a matter of one minute after being informed that the power would be cut off. In fact, the usual and customary safety operation employed by TDCJ prior to working on a downed power line was to (1) notify the unit affected by the outage that power would be shut down, (2) cut the power, (3) check the power with a meter to verify the power was down, and (4) ground the conductors. On the day in question, decedent did not follow this procedure.

Crew members testified that they knew the downed line was still energized. If the danger of approaching the downed power line was apparent to supervisors Guant and Allen and inmate Lemons, then there is no reason to assume or believe that decedent, who was a trained lineman and had access to the same information, did not have actual knowledge of the same danger. The conspicuousness of the danger was apparent to all, including decedent. See Cantu, 831 S.W.2d at 425. Therefore, TDCJ was relieved of its duty to further warn or make safe the condition of the real property. Id. Because decedent had actual knowledge of the dangerous condition, and the record is void with evidence of willful, wanton, or grossly negligent conduct on behalf of TDCJ, we find that TDCJ did not breach its duty to decedent under section 101.021(2). Therefore, TDCJ did not waive its sovereign immunity under the Act. We overrule appellant's first issue.
Having concluded that TDCJ's sovereign immunity was not waived, we do not reach appellant's second issue addressing whether TDCJ's conduct fell under one of the Act's exclusions from waiver. Accordingly, we affirm the trial court's judgment.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed November 6, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).

Dismissal of Priscilla Slade's Wrongful Termination Lawsuit Against TSU Regents affirmed by Houston Court of Appeals

Aug. 30, 2007 - In an opinion by Justice Sam Nuchia, the First Court of Appeals today affirmed the dismissal of Priscilla Slades' breach-of-contract claim against the Board of Regents of Texas Southern University on sovereign immunity grounds, stating that Texas Supreme Court had not recognized the exception to immunity urged by Slade's lawyers. Interestingly, the same court had recognized the waiver-by-conduct exception to governmental immunity in January 2007 in another law suit against TSU, and had thus established new case law, absence of guidance and precedent from the high court on that matter notwithstanding. See Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation, No. , (Tex.App.-Houston [1st Dist.] Jan. 11, 2007, both petitions denied)(Opinion on rehearing by Justice Hanks). The Supreme Court implictly approved the new precedent set in TSU v. State Street by declining last week to grant review in the case.

Priscilla D. Slade vs. Texas Southern University Board of Regents, No. (Tex.App.- Houston [1st Dist.] , Aug. 30, 2007)(Opinion by Justice Sam Nuchia)(breach of contract claim against state university barred by sovereign immunity, waiver-by-conduct theory rejected)(Before Justices Nuchia, Keyes and Higley)
Appeal from 61st District Court of Harris County
Trial court judge: Hon. John Donovan
Plaintiff / Appellant's attorneys: Ronald G. Franklin, Derek Daniel Bauman
University's counsel: James "Beau" Eccles, Assistant Attorney General

OPINION BY JUSTICE SAMUEL NUCHIA

This is an interlocutory appeal from the trial court's order granting a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006). Appellant Priscilla D. Slade sued both appellee Texas Southern University Board of Regents and an individual regent, William King, for allegedly breaching her employment contract. Slade claimed she was not given a hearing to contest the Board's decision to terminate her for cause as university president. The Board filed a plea to the jurisdiction, asserting sovereign immunity and the absence of a justiciable controversy. The trial court granted the Board's plea to the jurisdiction, thereby dismissing all of Slade's claims against the Board. We affirm.

Facts

Slade signed an employment contract with Texas Southern University in 2003 to serve as the University's president and chief executive officer. On April 17, 2006, after being presented with evidence of Slade's alleged financial misconduct, the Board elected to terminate Slade's employment as president. Two days later, Slade invoked a clause in her employment contract entitling her to a public hearing prior to her termination. On April 22, the Board issued a written acknowledgment of Slade's contractual right to a termination hearing, and on May 5, the Board set the hearing for a date thirty days later, giving Slade proper notice of the time and place of the hearing.

The hearing was set for, and subsequently held on, June 7. Despite her own request for the public hearing, Slade failed to appear.

At the conclusion of the June 7 hearing, the Board voted to terminate Slade's employment as president. A plea to the jurisdiction is a dilatory action that seeks dismissal of a case for lack of subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A trial court must have subject-matter jurisdiction in order to adjudicate a case. See, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Sovereign immunity from suit bars an action against the State, depriving the trial court of subject-matter jurisdiction, unless the State expressly consents to the suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999). Because subject-matter jurisdiction is a question of law, we review a trial court's decision to grant a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

When reviewing a trial court's ruling on a plea to the jurisdiction, we construe the pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the evidence creates a fact question regarding a jurisdictional issue, then the trial court should not grant the plea until the fact issue is resolved. Miranda, 133 S.W.3d at 227-28. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court should rule on the plea as a matter of law. Id. at 228. If no evidence is submitted, however, the court reviews the petition to determine if sufficient facts were pleaded to overcome the presumption of governmental immunity. See City of Pasadena v. Thomas, No. 01-05-00333-CV, slip op. at 4 (Tex. App.--Houston [1st Dist.] 2006, no pet.).

Sovereign immunity protects the State of Texas, its agencies, and its officials from lawsuits for damages, absent legislative consent to sue the State. See Dir. of Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex., 600 S.W.2d 264, 265 (Tex. 1980). This immunity extends to various divisions of state government, including universities. Tooke v. City of Mexia, 197 S.W.3d 325, 330 n.11 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Sovereign immunity encompasses two distinct types of immunities: immunity from suit and immunity from liability. Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970), overruled on other grounds by Tooke, 197 S.W.3d 325. Immunity from suit bars any suit against the State that the State has not expressly consented to by legislative action. IT-Davy, 74 S.W.3d at 853. Immunity from liability protects the State from money judgments even if the legislature has expressly given consent to sue. Id. It is the Legislature's sole province to waive or abrogate sovereign immunity. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997).

As an arm of the State, Texas Southern's Board of Regents is entitled to sovereign immunity. Therefore, Slade cannot sue the Board without showing legislative consent or waiver. Sovereign immunity does not, however, mean that the State can freely breach contracts with private parties. IT-Davy, 74 S.W.3d at 854. When the State contracts with a private party, it waives immunity from liability on those contracts as if it were a private party. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001), overruled on other grounds by Miranda, 133 S.W.3d 217; Fed. Sign, 951 S.W.2d at 405. However, in any suit against the State, the plaintiff must affirmatively demonstrate the court's subject-matter jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

Slade argues that the Board waived its sovereign immunity by engaging in inequitable conduct. Specifically, Slade claims that the Board and regent King, individually, "made accusations" about her "without proof . . . or any substantiation," "released to the media a report that was misleading and calculated to create an impression of wrongdoing," "threatened during a board meeting that [Slade] will never work again as a university president," and began the search for a new president before she was given "any opportunity to be heard." Slade contends that her right to be heard was denied by these actions, which she claims amount to inequitable conduct on the part of the Board.

Slade bases her inequitable-conduct argument on Justice Hecht's concurring opinion in Federal Sign. See Fed. Sign, 951 S.W.2d at 412 (Hecht, J., concurring). Federal Sign, however, and specifically Justice Hecht's concurrence, do not control the outcome in this case. Justice Hecht made clear in Federal Sign that the court was "not attempt[ing] to decide . . . hypotheticals" as to what kind of conduct related to a contract dispute would amount to inequitable conduct. Id. Rather, the court held only that mere execution of a contract does not waive immunity. Id. at 413.

The Texas Supreme Court has addressed the waiver-by-conduct exception since Federal Sign, and it has refused both to define the scope of those hypotheticals and to create an explicit waiver-by-conduct exception to sovereign immunity. (1) In IT-Davy, a plurality of the court urged a bright-line approach barring a waiver-by-conduct exception under any circumstances. IT-Davy, 74 S.W.3d at 857. Still, Justice Hecht, writing for the four-justice plurality, concurred, saying that the facts did not rise to the level anticipated in his hypotheticals in Federal Sign. Id. at 860-62. He wrote, "My hypothetical supposed a government agency that chiseled a contractor just because it could get away with doing so. . . . This is nothing more than an ordinary contract dispute." Id. at 861.

In Travis County v. Pelzel & Associates, Inc., the supreme court rejected the waiver-by-conduct theory in a construction contract case. 77 S.W.3d 246, 252 (Tex. 2002). The supreme court held that "[w]hen a governmental unit adjusts a contract price according to the contract's express terms, it does not, by its conduct, waive immunity from suit, even if the propriety of the adjustment is disputed." Id. Travis County invoked a liquidated damages clause contained in the contract it held with Pelzel, which entitled the county to withhold a portion of the contract price. Id. The court refused to adopt a waiver-by-conduct exception when the immune entity merely invoked and complied with the terms of the contract. Id.

Slade points to language in Catalina Development, Inc. v. County of El Paso, to support her proposition that Federal Sign established a waiver-by-conduct exception to sovereign immunity. 121 S.W.3d 704 (Tex. 2003). She argues that one clause in the Catalina opinion recognizes that a such a waiver exists: "Although in Federal Sign we suggested that some circumstances might warrant recognizing a waiver by conduct." Id. at 706. However, the supreme court went on to conclude that the circumstances suggested in Federal Sign that might warrant such an exception "[did] not exist under this set of facts." Id. We do not interpret this language as recognition by the supreme court that a waiver-by-conduct exception to sovereign immunity exists in light of other decisions to the contrary.

Slade also points to the supreme court's opinion in Texas A&M University-Kingsville v. Lawson and this Court's opinion in Texas Southern University v. State Street Bank & Trust to support her argument that a waiver-by-conduct exception should be applied. Tex. A&M Univ.-Kingsville, 87 S.W.3d 518 (Tex. 2002); Tex. S. Univ. v. State St. Bank & Trust, 212 S.W.3d 893 (Tex. App.--Houston [1st Dist.] 2007, pets. denied). Neither opinion supports appellant's argument, because each was significantly factually different from this case. In Lawson, the supreme court adopted a specific exception to immunity from suit in breach-of-contract cases: When the State settles a claim from which it does not have immunity, sovereign immunity from suit does not protect the State from a breach-of-contract action to the settlement agreement. Lawson, 87 S.W.3d at 518.

In State Street, this Court held that the State was not immune from suit due to the "extraordinary factual circumstances" found in that case. State St., 212 S.W.3d at 907. There, Texas Southern University entered into a contract in which it agreed to pay approximately $13 million for equipment and services. Id. at 908. After it had received the equipment and services, Texas Southern refused to pay, claiming that the contracts were invalid. Id. This Court held that sovereign immunity from suit did not shield Texas Southern from a breach-of-contract claim based on those facts and the following argument by one of the plaintiffs:

[T]he injustice is even worse [than the facts found by the trial court], because this case also includes an additional fact that appears in none of the prior cases: The government officials lured [plaintiff] into the Master Lease with false promises that the contract would be valid and enforceable, then disclaimed any obligation on the contract by taking the position that the contract was not valid after all. Id.

In Slade's case, however, it is undisputed that the contract between Slade and Texas Southern was valid and enforceable. Furthermore, the Board is neither avoiding enforcement of a settlement claim, nor is it claiming that the contract is not valid. While Slade has pleaded facts that could conceivably result in a holding on the merits that the Board or an individual regent breached her employment contract, there is nothing in the facts she has pleaded that rise to the level of the "extraordinary factual circumstances" found in State Street. (2)

Like IT-Davy and Pelzel & Associates, and unlike the "extraordinary circumstances" of State Street, Slade's case is an ordinary contract dispute. See IT-Davy, 74 S.W.3d at 861 (Hecht, J., concurring); see Pelzel & Assocs., 77 S.W.3d at 252. While we recognize the harsh reality of sovereign immunity from suit, we hold that the waiver-by-conduct exception does not apply in this case.

Alternatively, Slade argues that even if the Board has not waived its sovereign immunity from suit, nonetheless her request for declaratory relief is not barred. The supreme court has enumerated two scenarios in which private parties may attempt to bring declaratory actions against the State. See IT-Davy, 74 S.W.3d at 855-56. In the first, private parties can sue for a declaratory judgment against state officials who allegedly act without legal or statutory authority. Id. at 855. These actions are suits to compel state officers to act within their official capacity and are not considered to be suits against the State. Id. Therefore, these suits do not implicate the sovereign-immunity doctrine. Id. In the second, private parties may attempt to sue the State for a declaratory judgment seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities. Id. at 855-56. These types of suits are considered suits against the State because they seek to control state action or impose liability on the State. Id. Consequently, these actions may not be maintained without express legislative permission. Id. at 856.

It is the second type of declaratory action under which Slade's claims fall. Slade asks this Court to compel performance by the Board based on her employment contract. Specifically, she seeks a declaration that she is entitled to an opportunity to appear before the Board in a public hearing prior to her termination being made final. This action would clearly be declaratory relief to enforce performance under a contract with the State. See IT-Davy, 74 S.W.3d at 855-56. Consequently, it is barred by the State's immunity and cannot be maintained absent express legislative consent. Id.

Finally, Slade argues that the trial court erred in granting the Board's plea to the jurisdiction because of mootness. In light of our holding that the Board is immune from Slade's suit, it is unnecessary to reach the mootness question.
We affirm the trial court's order granting the Board's plea to the jurisdiction.

Sam Nuchia
Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

1. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003); Tex. A&M Univ.-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002); Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002); IT-Davy, 74 S.W.3d 849; Little-Tex Insulation Co., 39 S.W.3d 591.

2. Because we hold that no waiver-by-conduct exception exists in this case, we express no opinion of the merits of Slade's breach-of-conduct claim or the conduct of any person involved in the underlying dispute.