
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-97-00655-CV


Texas Parks and Wildlife Department, Appellant

v.


W.M. Callaway, Jr., Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 96-10253, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING 






	This case presents the issue of whether a governmental agency is protected by
sovereign immunity when it takes actions that violate both contractual and extracontractual duties. 
W.M. Callaway, Jr. owns property on which the Texas Parks and Wildlife Department (the
"Department") has an easement for a waterway known as the Keith Lake Water Exchange Pass
(the "Pass").  Callaway sued the Department on multiple theories for claims arising out of the
Department's decision to open the Pass to public boat traffic.  The Department filed a plea to the
jurisdiction, asserting that each of Callaway's claims arose from an alleged breach of the
agreement by which the Department obtained the easement and that the Department's immunity
from suit deprived the trial court of jurisdiction.  After initially sustaining the Department's plea
and dismissing the suit, the trial court subsequently granted Callaway's motion for a new trial and,
on reconsideration, denied the Department's plea to the jurisdiction.  The Department appeals. 
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 1998).  We will affirm in
part and reverse and render in part.


FACTUAL AND PROCEDURAL BACKGROUND
	Our description of the background of this controversy is drawn primarily from
Callaway's petition. (1)  The Pass is a canal-like waterway approximately 300 feet wide and 3,000
feet long connecting the Sabine-Neches Ship Channel on the east to Keith Lake on the west.  The
primary purpose of its construction was to foster the propagation of fish and other aquatic life in
Keith Lake.  In order to construct and maintain the Pass, in July 1976 the Department obtained
an easement and right-of-way across land owned at that time by Dalco Oil Company.  The
easement contains a number of "reservations and conditions," including the following:

5.  It is agreed and understood [the Department] will construct, reconstruct, and
maintain during the term of this easement a permanent barrier to all water traffic
across the gap between the aforementioned weir and the upland to the north.

. . . .

14.  It is agreed and understood the "Keith Lake Water Exchange Pass" will be
closed to all water traffic except that of the employees or agents of the parties
hereto.  [The Department] shall post notices of such restriction to the public by
signs erected at the Keith Lake entrance to such pass and shall maintain all such
signs during the term of this easement.


Construction of the Pass was completed in 1977.  Afterwards, the Department complied with the
restrictions on public access contained in the easement agreement.
	In 1988 Callaway purchased a 12.6-acre tract of land near the location where the
Pass intersects the Sabine-Neches Ship Channel.  Callaway's tract lies along and beneath the
waters of the Pass.  In 1994 a significant amount of public attention and inquiry was directed
toward the Department concerning the basis for the boating ban in the Pass.  In mid-1995 the
Department decided to open the Pass to the public.  In addition to informing its game wardens to
cease enforcing the boating ban, the Department replaced the signs prohibiting boat traffic in the
Pass with caution signs, removed the physical barrier to public boat traffic, and announced to the
media that the Pass was open to the public.  As part of the rationale for its actions, the
Department stated that it had determined it had no legal authority to restrict public boating in the
Pass because the waters therein constituted "public waters."
	In response to the Department's decision to open the Pass, Callaway brought this
suit.  Callaway claimed that the Department's actions changed the character of the Pass from
private to public, effectively taking his property or damaging it without compensation.  The
Department responded by characterizing Callaway's "takings" claim and other causes of action
as merely a suit for breach of the easement agreement.  The Department argued that Callaway's
"breach of contract" claims were barred by sovereign immunity.  Alternatively, the Department
argued that it lacked the requisite intent to "take" Callaway's property.  The trial court denied the
Department's motion to dismiss Callaway's suit on any of the pleaded theories.
	Callaway's suit asserted several causes of action relating to the Department's
decision to open the Pass to the public: (1) inverse condemnation; (2) violation of due process
based on the Department's alleged failure to provide Callaway notice, hearing, and an opportunity
to comment on its decision; (3) declaratory judgment that the Department has statutory authority
to restrict public boating in the Pass; (4) attorney's fees in conjunction with his request for
declaratory relief; (5) trespass to try title; (6) damages for the Department's breach of the
easement; and (7) an injunction to prevent future violations of the easement's restrictions on public
boating in the Pass.  The last two causes of action were pleaded as an alternative to his claims for
inverse condemnation and violation of due process.  On appeal, the Department complains in a
single issue that the trial court erred in failing to sustain its plea to the jurisdiction as to each of
Callaway's claims.

DISCUSSION
I.  Inverse Condemnation
	Article I, section 17 of the Texas Constitution provides, in pertinent part, that "No
person's property shall be taken, damaged or destroyed for or applied to public use without
adequate compensation being made . . . ."  Tex. Const. art. I, § 17 (emphasis added). Thus,
although the state and its agencies may take, damage, or destroy property for public use, this
power is inextricably tied to an obligation to provide adequate compensation to those who
involuntarily yield vested property rights to the larger community.  State v. Hale, 146 S.W.2d
731, 737 (Tex. 1941).  This constitutional provision "was designed to bar Government from
forcing some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole."  Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex. 1980)
(citations omitted).  An actual taking or physical appropriation is not required.  Felts v. Harris
County, 915 S.W.2d 482, 484 (Tex. 1996).
	In the usual situation, the state or its agency compensates the property owner before
taking his property, either by paying a mutually agreed price or paying the value as determined
in a formal condemnation proceeding.  Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). 
An "inverse condemnation" proceeding is the avenue of relief available when property has been
taken or damaged for public use without compensation or a proper condemnation proceeding, and
the property owner wishes to recover compensation for his loss.  Id.  The proceeding is "inverse"
in that the property owner, rather than the state or its agency, brings the lawsuit.  An inverse
condemnation may occur when the state or its agency physically takes or invades property, or
when it unreasonably interferes with the property owner's right to use and enjoy his property. 
Id.; see, e.g., City of Austin v. Teague, 570 S.W.2d 389, 394 (Tex. 1978) (city liable in damages
to landowner where city sought to impose servitude on land to preserve its natural character).

(a) Sovereign Immunity
	The Department, like any state agency, is a creature of the legislature and possesses
only such powers as are delegated to it expressly and impliedly by the legislature.  State v.
Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Texas Dep't of Human Servs. v. Christian Care
Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App.--Austin 1992, writ denied).  The Department is
generally responsible for administering the laws relating to game, fish, oysters, and marine life. 
Tex. Parks & Wild. Code Ann. §§ 1.011, 12.001, 12.0011 (West 1991).  Pursuant to its
responsibility for wildlife management, the Department may purchase land "for the construction
and maintenance of passes leading from one body of tidewater to another."  Tex. Parks & Wild.
Code Ann. § 81.102 (West 1991).  Alternatively, the Department may condemn the property of
any person or corporation in the state.  Id. § 81.103.  In the present case, the Department
acquired, for the nominal sum of $1, an easement and right-of-way for the construction and
maintenance of the Pass.
	The writing granting the easement contains a number of reservations and
conditions, including several provisions that restrict public access to the Pass.  Neither Callaway
nor the Department argues that the written easement document is ambiguous.  Rather, Callaway
alleges that the Department's decision to open the Pass to the public and its affirmative action to
accomplish that result not only exceeded any rights granted to the Department in the easement
agreement, but also resulted in a taking or damaging of his property without compensation. (2)  In
particular, Callaway alleges that the Department affirmatively acted outside the scope of the
easement by replacing the "No Trespassing" signs with caution signs, removing the physical
barrier to public boat traffic, and announcing to the media that the Pass had been opened to the
public.  The Department seeks to escape liability for taking or damaging Callaway's property by
its contention that Callaway's real complaint is that opening the Pass to the public was an alleged
"breach of contract." (3)
	Sovereign immunity consists of two basic legal principles.  First, unless waived,
the state has immunity from liability.  Federal Sign v. Texas Southern Univ., 951 S.W.2d 401,
405 (Tex. 1997).  Second, the state as sovereign is immune from suit without consent.  Id.; see
also Tex. Civ. Prac. & Rem. Code Ann. § 107.002 (West 1997) (providing for grants of
permission to sue the state).  Entering into a contract waives the state's immunity from liability,
but not its immunity from suit.  Federal Sign, 951 S.W.2d at 405-06.  In the present case, the
Department, as a state agency, is protected by sovereign immunity when it enters into contracts. 
See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976).  However, an action for
inverse condemnation is a limited exception to the doctrine of sovereign immunity.  Steele, 603
S.W.2d at 791.  When the state or its agency takes, damages, or destroys property for public use,
"[t]he Constitution itself is the authorization for compensation for the destruction of property and
is a waiver of governmental immunity . . . ."  Id.  Thus, if Callaway alleged a valid claim for
inverse condemnation relating to the Department's decision to open the Pass to the public,
sovereign immunity does not bar the claim.
	The Department argues that Callaway's claims are grounded solely on the easement
agreement and, therefore, are barred by sovereign immunity.  We disagree.  Clearly, one purpose
of Callaway's suit is to establish the validity of the rights and obligations granted in the easement. 
However, the basis of Callaway's claim for inverse condemnation does not rest on contractual
grounds alone; we must consider the alleged taking or damaging of Callaway's property.  See
Courtney v. University of Tex. Sys., 806 S.W.2d 277, 283 (Tex. App.--Fort Worth 1991, writ
denied) (distinguishing breach of contract from divestment of property right).  The existence of
a contract is not talismanic, but merely leaves the state's immunity from suit intact; it does not
build an impenetrable wall nullifying the possibility of other waivers of and exceptions to that
immunity.  See Federal Sign, 951 S.W.2d at 408 n.1 (noting that state may not always be immune
when it contracts).

(b) Callaway's "Takings" Claim
	To recover under a theory that property has been "taken" within the meaning of
article I, section 17, the complainant must establish that the state or its agency intentionally
performed certain acts that resulted in a taking of property for public use.  Green Int'l, Inc., v.
State, 877 S.W.2d 428, 434 (Tex. App.--Austin 1994, writ dism'd by agr.).  In the present case,
the Department argues that there was no intent to take Callaway's property.  The Department
asserts a good-faith belief that it lacks statutory authority to enforce the boating ban and,
therefore, argues that its decision to withhold enforcement of its contractual duties was made
without the requisite intent.  In support of its argument, the Department relies on this Court's
opinion in Green International.  The Department argues that, as in Green International, its
decision to withhold performance was made under a "color of right" within the scope of the
easement.  Green Int'l, 887 S.W.2d at 434.  However, Green International is distinguishable from
the present case.  In Green International and every other case we have found in which sovereign
immunity prevented a private party from recovering damages from the state for an alleged breach
of contract, the state's duty to pay or perform arose solely from its contract with the private party. 
See, e.g., Federal Sign, 951 S.W.2d at 403 (suit for damages and lost profits based on
university's alleged breach of contract); Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540,
541 (Tex. App.--Austin 1995, writ denied) (suit against state university for monies allegedly due
pursuant to construction contract); Green Int'l, 877 S.W.2d at 431 (suit against state for monies
allegedly due pursuant to construction contract); Missouri Pac. R.R. v. Brownsville Navigation
Dist., 453 S.W.2d 812, 813-14 (Tex. 1970) (suit for indemnity based on a written track
agreement); W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 839-41 (Tex. 1958) (suit for
declaration of rights relating to a state permit); Herring v. Houston Nat'l Exch. Bank, 269 S.W.
1031, 1033 (Tex. 1925) (suit to recover money the state allegedly had not paid for the purchase
of land).
	Here, in contrast, we are not examining sovereign immunity and inverse
condemnation solely in the context of the breach of contractual duties.  For example, the
Department has not merely refused to perform its contractual obligations by allowing the physical
barrier to fall into disrepair or by refusing to post "No Trespassing" signs.  Rather, the
Department has acted affirmatively to open the Pass to public boating.  The state's duty to build
a structure may come initially from a contract, but once it is built, the constitution itself imposes
on the state a duty not to tear it down without paying adequate compensation.  Thus, the
Department, apart from its contractual obligations, has a duty not to affirmatively take, damage,
or destroy property within the meaning of article I, section 17 of the Texas Constitution without
making adequate compensation.  Accordingly, the question raised by Callaway's claim for inverse
condemnation is whether the Department, totally aside from withholding performance of its
contractual obligations, has taken or damaged Callaway's property by its affirmative actions.
	The Department defends its actions by asserting that the Texas Constitution requires
that the Pass be kept open to the public because the waters of the Pass are "public waters."  See
Tex. Const. art. XVI, § 59(a).  The Department argues that because it is required by law to take
the actions it did, it has no constitutional duty to compensate Callaway for his loss.  We disagree. 
Disregarding the easement agreement and its restrictions on public boating that the Department
has refused to enforce, we are left with Callaway's claim that the Department intentionally and
affirmatively performed certain acts that resulted in a taking or damaging of his property for
public use.  The Department cannot escape the fact that such affirmative acts constitute a taking
or damaging for public use merely because the acts that resulted in the taking or damaging were
somehow mandated by state law.  Many, if not most, such acts could be traced to a legal
requirement.  To adopt the position urged by the Department would emasculate article I, section
17 of the Texas Constitution.  We conclude that Callaway's petition establishes a lawful cause of
action under article I, section 17.  Accordingly, the trial court did not err in denying the
Department's plea to the jurisdiction as to Callaway's inverse condemnation claim.

II.  Procedural Due Process
	Article I, section 19 of the Texas Constitution provides, in pertinent part, that no
citizen may be deprived of property "except by the due course of the law of the land."  While this
clause of the Texas Constitution is textually different from its federal counterpart in that it refers
to "due course" rather than "due process," these terms are without meaningful distinction. 
University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).  A complainant
alleging a procedural due-process claim must establish that he was deprived of notice and an
opportunity to be heard with respect to a decision affecting his property.  Federal Sign, 951
S.W.2d at 410 (explaining that due course of law exists to prevent the government from depriving
persons of property without notice and a hearing); cf. Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542 (1985).
	In the present case, Callaway alleges that, in addition to taking his property for
public use without compensation, the Department took his property without providing him due
process.  Specifically, Callaway alleges that the Department held no hearing, gave no notice of
its decision before or after making it, and provided no opportunity for Callaway to comment on
the proposed decision.  The Department again responds that Callaway's due-process claim
emanates from an alleged breach of contract and is barred by sovereign immunity.  See Federal
Sign, 951 S.W.2d at 409.  Having concluded above that Callaway properly pleaded a
constitutional taking claim, we likewise reject the Department's response to Callaway's due-process claim.  Callaway has a property interest that is entitled to due-process protection.  The
Department's duty to afford an appropriate and meaningful opportunity to be heard does not arise
from the easement agreement, but from article I, section 19 of the Texas Constitution.  The trial
court therefore did not err in denying the Department's plea to the jurisdiction as to Callaway's
due-process claim.

III.  Request for Declaratory Judgment 
	Callaway requests a declaratory judgment that the Department has authority to keep
the Pass closed to the public.  Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1997). 
Further, he seeks a judgment declaring that the Department must use this authority in complying
with the easement's conditions and restrict public boating in the Pass.  Callaway asserts that the
Department acted wrongfully and without legal authority in opening the Pass, and, therefore, his
request for declaratory judgment is not barred by sovereign immunity.  See Cobb v. Harrington,
190 S.W.2d 709, 714-15 (Tex. 1945).  The Department argues in response that because Callaway
also seeks damages based on its decision to open the Pass, his combined claim for a declaratory
judgment should be dismissed for lack of jurisdiction on the basis of sovereign immunity.  See
Federal Sign, 951 S.W.2d at 404-05 (claims for state law violation did not dispense with need to
secure legislative consent to sue state agency for damages).
	In Cobb, the complainants brought suit to obtain a judgment declaring that they
were not "motor carriers" as defined by the tax statute and that state officials, endeavoring to
compel respondents to pay the tax, were acting wrongfully and without legal authority.  Cobb, 
190 S.W.2d at 712.  The court held that this was not a suit against the state and thus was not
barred by sovereign immunity.  Id.  The court emphasized that the complainants were not seeking
to impose liability on the state or to compel performance of a contract.  Id.  In the present case,
however, Callaway's primary complaint is that the Department has taken his property without
compensation or due course of law.  Since Callaway primarily seeks money damages, his request
for declaratory judgment does not fit under the exception to sovereign immunity established in
Cobb.
	Although Callaway's request for declaratory judgment is not premised expressly
on breach of contract, it is analogous to such a claim.  In essence, Callaway seeks a declaration
of his rights under the easement and an order enforcing those rights.  See Herring v. Houston
Nat'l Exch. Bank, 253 S.W. 813, 814 (Tex. 1923) (suit against state officers to require them to
perform contract by state or to establish validity of contract by state is suit against state itself);
Haden, 308 S.W.2d at 840 (applying Herring in case brought to enforce rights arising out of
contract with  state agency).  There is no basis for the injunctive relief or the contractual damages
that Callaway seeks unless he can establish that the easement constituted a contract, binding on
the Department, which he can enforce.  See Haden, 308 S.W.2d at 841.  Whether the
Department's decision that it was legally required to open the Pass was correct or incorrect, a suit
to test it by seeking enforcement of contract rights is necessarily a suit against the state that cannot
be maintained without legislative permission.  See id. at 842.  The trial court therefore erred in
denying the Department's plea to the jurisdiction as to Callaway's request for a declaratory
judgment.

IV.  Request for Attorney's Fees
	In conjunction with his request for declaratory relief, Callaway also requests an
award of attorney's fees.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997).  Having
concluded that the trial court erred in denying the Department's plea to the jurisdiction as to
Callaway's request for a declaratory judgment, we also conclude that the trial court erred in
denying the Department's plea to the jurisdiction as to Callaway's request for attorney's fees.
V.  Trespass to Try Title
	Callaway asserts a trespass to try title claim against the Department based on the
Department's failure to enforce the restrictions on public access to the Pass contained within the
easement.  Callaway alleges that as a result of the failure of the Department to enforce the
restrictions, the easement should be declared void and forfeited.  A suit for title to land against
the state or its agency cannot be maintained without legislative consent.  State v. Lain, 349
S.W.2d 579, 582 (Tex. 1961); Bell v. State Dep't of Hwys. & Pub. Transp., 945 S.W.2d 292,
294 (Tex. App.--Houston [14th Dist.] 1997, writ denied).
	When the sovereign has neither title nor right to possession, individual state
officials and agency employees can be sued in their individual capacities without legislative
consent.  Lain, 349 S.W.2d at 581-82.  The property owner is not required to obtain legislative
consent to sue simply because a state official or agency employee asserts a good faith but
overzealous belief that title or right of possession is in the state and that he is acting for and on
behalf of the state.  Id.  Because Callaway has not sued any officials in their individual capacities,
however, the trial court erred in denying the Department's plea to the jurisdiction as to Callaway's
trespass to try title claim.

VI.  Breach of the Easement Agreement
	As an alternative to his claim for inverse condemnation, Callaway seeks money
damages based on the Department's alleged breach of the easement agreement; he also requests
a permanent injunction requiring the Department to comply with the conditions of the easement.
The state is immune from a suit for money damages based on an alleged breach of contract unless
the state has expressly given its consent to be sued.  Federal Sign, 951 S.W.2d at 405; Firemen's
Ins., 909 S.W.2d at 542; Green Int'l, 877 S.W.2d at 432.  In addition, a suit seeking injunctive
relief to enforce contractual rights is necessarily a suit against the state that cannot be maintained
without legislative permission.  Federal Sign, 951 S.W.2d at 408; Haden, 308 S.W.2d at 842. 
The trial court therefore erred in denying the Department's plea to the jurisdiction as to
Callaway's claim for damages and injunctive relief resting on a breach-of-contract theory.

CONCLUSION
	We affirm the trial court's denial of the Department's plea to the jurisdiction as to
Callaway's inverse condemnation claim and procedural due-process claim.  We reverse the portion
of the trial court's order denying the Department's plea as to Callaway's remaining claims, and
we render judgment dismissing those claims for lack of jurisdiction.


 
					J. Woodfin Jones, Justice
Before Justices Powers, Aboussie and Jones
Affirmed in Part; Reversed and Rendered in Part
Filed:    June 11, 1998
Publish
1.        In ruling on a plea to the jurisdiction, the trial court must base its decision solely on the
well-pleaded allegations in the plaintiff's pleadings.  Brannon v. Pacific Employers Ins. Co., 224
S.W.2d 466, 469 (Tex. 1949); Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540, 541
(Tex. App.--Austin 1995, writ denied).  In the absence of a challenge to their accuracy, these
factual allegations must be taken as true.  Id.
2.        In its brief, the Department contends that this Court's decision in Fireman's Ins. Co. v.
Board of Regents, 909 S.W.2d 540 (Tex. App.--Austin 1995, writ denied), is dispositive of the
issues on appeal.  The Department asserts that Callaway's essential complaint is that the
Department "wrongfully" opened the Pass to public navigation.  In Firemen's, we held that the
plaintiff's allegation of a tort specifically negated the takings claim.  More specifically, we found
that the plaintiff's allegations of fraudulent inducement of a contract involved claims outside the
state's scope of authority, thereby causing the allegation to be a tort and not a takings claim.  In
the present case, however, a careful reading of Callaway's petition reveals that the essence of his
complaint is not a tort such as fraudulent inducement, but that the Department took or damaged
his property without proper condemnation proceedings or just compensation.
3.        The rules regarding construction of deeds generally apply in the construction of easements. 
Lo-Vaca Gathering Co. v. Missouri-K-T R.R., 476 S.W.2d 732, 741 (Tex. Civ. App.--Austin
1972, writ ref'd n.r.e.).  A "condition" in a deed is often treated as a covenant, the remedy for
a breach of which is an action for damages.  See Hearne v. Bradshaw, 312 S.W.2d 948, 951
(Tex. 1958).

 to land against
the state or its agency cannot be maintained without legislative consent.  State v. Lain, 349
S.W.2d 579, 582 (Tex. 1961); Bell v. State Dep't of Hwys. & Pub. Transp., 945 S.W.2d 292,
294 (Tex. App.--Houston [14th Dist.] 1997, writ denied).
	When the sovereign has neither title nor right to possession, individual state
officials and agency employees can be sued in their individual capacities without legislative
consent.  Lain, 349 S.W.2d at 581-82.  The property owner is not required to obtain legislative
consent to sue simply because a state official or agency employee asserts a good faith but
overzealous belief that title or right of possession is in the state and that he is acting for and on
behalf of the state.  Id.  Because Callaway has not sued any officials in their individual capacities,
however, the trial court erred in denying the Department's plea to the jurisdiction as to Callaway's
trespass to try title claim.

VI.  Breach of the Easement Agreement
	As an alternative to his claim for inverse condemnation, Callaway seeks money
damages based on the Department's alleged breach of the easement agreement; he also requests
a permanent injunction requiring the Department to comply with the conditions of the easement.
The state is immune from a suit for money damages based on an alleged breach of contract unless
the state has expressly given its consent to be sued.  Federal Sign, 951 S.W.2d at 405; Firemen's
Ins., 909 S.W.2d at 542; Green Int'l, 877 S.W.2d at 432.  In addition, a suit seeking injunctive
relief to enforce contractual rights is necessarily a suit against the state that cannot be maintained
without legislative permission.  Federal Sign, 951 S.W.2d at 408; Haden, 308 S.W.2d at 842. 
The trial court therefore erred in denying the Department's plea to the jurisdiction as to
Callaway's claim for damages and injunctive relief resting on a breach-of-contract theory.

CONCLUSION
	We affirm the trial court's denial of the Department's plea to the jurisdiction as to
Callaway's inverse condemnation claim and procedural due-process claim.  We reverse the portion
of the trial court's order denying the Department's plea as to Callaway's remaining claims, and
we render judgment dismissing those claims for lack of jurisdiction.


 
					J. Woodfin Jones, Justice
Before Justices Powers, Aboussie and Jones
Affirmed in Part; Reversed and Rendered in Part
Filed:    June 11, 1998
Publish
1.        In ruling on a plea to the jurisdiction, the trial court must base its decision solely on the
well-pleaded allegations in the plaintiff's pleadings.  Brannon v. Pacific Employers Ins. Co., 224
S.W.2d 466, 469 (Tex. 1949); Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540, 541
(Tex. App.--Austin 1995, writ denied).  In the absence of a challenge to their accuracy, these
factual allegations must be taken as true.  Id.
2.        In its brief, the Department contends that this Court's decision in Fireman's Ins. Co. v.
Board of Regents, 909 S.W.2d 540 (Tex. App.--Austin 1995, writ denied), is dispositive of the
issues on appeal.  The Department asserts that Callaway's essential complaint is that the
Department "wrongfully" opened the Pass to public navigation.  In Firemen's, we held that the
plaintiff's allegation of a tort specifically negated the takings claim.  More specifically, we found
that the plaintiff's allegations of fraudulent inducement of a contract involved claims outside the
state's scope of authority, thereby causing the allegation to be a tort and not a takings claim.  In
the present case