                     NUMBER 13-10-015-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG


RAILROAD COMMISSION OF TEXAS,                           Appellant,

                               v.

GULF ENERGY EXPLORATION CORPORATION,                     Appellee.


             On appeal from the 267th District Court
                   of Calhoun County, Texas.


                 MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Benavides and Vela
              Memorandum Opinion by Justice Vela
        This is an interlocutory appeal from a trial court order denying appellant, the

Railroad Commission of Texas’s (“the Commission”), plea to the jurisdiction. By four

issues, the Commission urges that a joint resolution by the Texas Legislature granting

appellee, Gulf Energy Exploration Corporation (“Gulf Energy”), permission to sue the State

of Texas, subject to chapter 107 of the Texas Civil Practice and Remedies Code, with

respect to the wrongful plugging of State Tract 708-S No. 5 (“708-No. 5") was a limited

waiver of sovereign immunity. The Commission also initially argued, by its third issue, that

Gulf Energy’s claims were barred because it lacked standing, but withdrew its standing

argument in its reply brief.1 We affirm, in part, and reverse and remand, in part.

                                            I. BACKGROUND

        Gulf Energy filed suit against the Commission, Superior Energy Services, L.L.C.,

and Fugro Chance, Inc., for plugging and abandoning well 708-No. 5 after agreeing it

would not do so. Gulf Energy urged causes of action for breach of contract, fraud,

negligent misrepresentation, negligence, and gross negligence.

        Gulf Energy is in the business of acquiring leases for the purpose of oil and gas

production. In February 2007, it acquired the 708-No. 5. American Coastal Energy

Corporation (“ACE”) was the operator. As operator, ACE had the responsibility to pay the

cost of plugging and abandoning the well when it stopped producing. By 2008, the

Commission declared the 708-No. 5 well, in addition to others, to be “orphan wells” that


        1
          Gulf Energy pleaded that the lease went into effect in February 2007. The Com m ission states that
as “long as [the C om m ission] m aintains that the lease was entered into in February 2007, Gulf Energy
satisfies the standing requirem ent for bringing injury-to-property claim s. Accordingly, the Com m ission
withdraws its argum ent that Gulf Energy lacks standing based on these pleadings.”

                                                     2
needed to be plugged and abandoned. ACE was unable to pay the cost of plugging the

well and filed for bankruptcy. Gulf Energy agreed to provide a cash deposit of $400,000

to satisfy the eventual cost of plugging and abandoning the 708-No. 5, as well as other

wells on the lease. Gulf Energy was also successful in rescinding the plugging order and

it took over production. State Tract 707-S #5 (“707-No. 5"), located on the tract adjacent

to the tract on which the 708-No. 5 was located, was still scheduled to be plugged and

abandoned. However, Superior, through its subcontractor, Fugro, plugged the 708-No. 5,

rather than the 707-No. 5. At the time the 708-No. 5 was plugged, Gulf Energy pleaded

that there were personnel from Superior, Fugro and the Commission on board the vessel

that traveled to the 708 No.-5., rather than the 707-No. 5. The Commission admitted that

the plugging and abandoning of tract 708-No. 5 was wrongful. Gulf Energy sought a

legislative waiver of the Commission’s sovereign immunity from suit, which was granted.

See TEX . S. CON . RES. 72, 81st Leg., R.S. (2009) (“Joint Resolution 72").

       Thereafter, Gulf Energy filed suit against the Commission, Superior Energy

Services, and Fugro. The Commission filed a plea to the jurisdiction on the ground that

Joint Resolution 72 waived the Commission’s immunity for some, but not all of Gulf

Energy’s claims. Specifically, the Commission claims a “waiver of immunity only with

respect to Gulf’s breach of contract claim, and does not clearly and unambiguously waive

immunity with respect to Gulf’s tort claims.” The trial court denied the plea, and this

interlocutory appeal ensued.




                                            3
                                 II. STANDARD OF REVIEW

       A plaintiff who sues the State must establish the State's consent to sue. Tex. Dep't

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Otherwise, sovereign immunity from

suit defeats a trial court's subject-matter jurisdiction. Id. The State may assert sovereign

immunity from suit in a plea to the jurisdiction. Id. A plea to the jurisdiction is a dilatory

plea that seeks dismissal of a case for lack of subject-matter jurisdiction, thus defeating “a

cause of action without regard to whether the claims asserted have merit.” Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject-matter jurisdiction is essential

to the authority of a court to decide a case. See Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998). We review a trial court's ruling on a jurisdictional plea de

novo, construing the pleadings in the plaintiff's favor and looking to the pleader's intent.

Id.

                                    III. APPLICABLE LAW

       Here, the legislature granted Gulf Energy permission to sue through legislative grant,

as set forth in section 107.002 of the Texas Civil Practice and Remedies Code. See TEX .

CIV. PRAC . & REM . CODE ANN . § 107.002 (Vernon 2005). Neither party disputes that the

state waived its immunity from suit. It is the extent of the waiver that is in controversy.

       The statute provides that the claimant may sue for “any relief to which the claimant

is entitled as a result of the described claim.” Id. § 107.002(a)(1). “The chief distinction

between a resolution and a law seems to be that the former is used whenever the legislative

body passing it wishes to merely express an opinion as to some given matter or thing, and


                                             4
is only to have a temporary effect on such particular thing; while by the latter it is intended

to permanently direct and control matters applying to persons or things in general.” Conley

v. Tex. Div. of United Daughters of the Confederacy, 164 S.W. 24, 26 (Tex. Civ.

App.–Austin 1913, writ ref’d). Joint resolutions are statements of the legislature’s intent as

a body and are interpreted as statutes. See, e.g., Tex. & Pac. Ry. Co. v. State, 78 S.W.2d

580, 582 (1935) (utilizing the analysis for statutory construction to interpret a joint

resolution). Resolutions granting permission to sue the State affect only the legal rights of

the parties to the authorized suit and do not become the general law of the State. State v.

John R. Phenix & Assocs., Inc., 6 S.W.3d 288, 292 (Tex. App.–Houston [14th Dist.] 1998,

no pet.).

       Legislative consent for suit or any sovereign immunity waiver must be “by clear and

unambiguous language.” Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175,

177 (Tex. 1994); Tex. S. Univ. v. State St. Bank, 212 S.W.3d 893, 901 (Tex. App.–Houston

[1st Dist.] 2007, pet. denied). The legislature is in a better position than the courts to weigh

conflicting “public policies associated with waiving immunity and exposing the government

to increased liability, the burden of which the general public must ultimately bear.” Tex. S.

Univ., 212 S.W.3d at 901. The State neither creates nor admits liability by granting

permission to be sued. Id. As a basic premise, a state may be sued only with its consent

and in the manner indicated by that consent. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 (Tex. 2003). Because consent “is pivotal to a waiver of sovereign

immunity, it is important to consider the manner in which a sovereign conveys its consent



                                               5
to be sued.” Id. at 695. When construing a statute that purportedly waives immunity,

ambiguities are resolved by retaining immunity. Id. at 697. It is proper for a trial court to

dismiss claims over which it does not have subject-matter jurisdiction but retain claims in

the same case over which it has jurisdiction. Thomas v. Long, 207 S.W.3d 334, 338 (Tex.

2006); Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).

        Governmental immunity protects governmental units from lawsuits for money

damages unless the legislature expressly consents. Gen. Servs. Comm’n v. Little Tex

Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Chapter 107 has been typically utilized in

situations seeking redress in breach of contract cases against the State. See id. at 597.

The legislature has also allowed waiver by resolution in at least one lawsuit asserting

causes of action for intentional, grossly negligent, or negligent failure to provide a deaf child

with educational services. Lindsey v. State, 811 S.W.2d 731, 732 (Tex. App.–Austin 1991,

writ denied).2

                                               IV. ANALYSIS

       The Commission argues on appeal that any waiver effected in chapter 107 is limited

in scope. It urges that a claim not mentioned in the joint resolution is one that the legislature

never considered, and thus, it could not have intended to waive immunity from it. It states

that Joint Resolution 72 bases its waiver of immunity from suit on the fact that the

Commission entered into an agreement with Gulf Energy on which Gulf Energy relied to its


        2
         The court of appeals held that the senate concurrent resolution gave parents perm ission to bring suit
against the State but did not waive im m unity from liability, and granted the State’s sum m ary judgm ent based
upon governm ental im m unity. Lindsey v. State, 811 S.W .2d 731, 733 (Tex. App.–Austin 1991, writ denied).



                                                      6
detriment. The Commission urges that there is no question that the legislature has waived

its sovereign immunity in Joint Resolution 72, but it states that immunity has been waived

solely with respect to the contract claims. It claims that Joint Resolution 72 does not waive

immunity with respect to Gulf Energy’s torts claims or its request for exemplary damages.

Gulf Energy, on the other hand, urges in its brief that Joint Resolution 72 plainly grants it

permission to sue the Commission for wrongful plugging of the well and that paragraphs 4

and 6 of the resolution, which refer to a settlement and forbearance agreement, never tie

any provision in the named agreement to any basis on which the plugging of the well might

be considered “wrongful.”

       We begin by not disturbing the parties’ consensus that there was a waiver of

immunity as it pertains to Gulf Energy’s pleading of breach of contract. The parties are in

agreement that the legislature has waived its immunity with respect to its breach of contract

claims, and we believe that if the wrongful plugging of the well was a breach of the contract

between the two parties, immunity from suit has been waived for the contractual claim. We

also conclude that chapter 107 precludes the legislature from waiving immunity from suit

for exemplary damages. See TEX . CIV. PRAC . & REM . CODE ANN . § 107.002(a)(10). The

plain language of the statute states that the legislature lacks the power to waive immunity

from suit for exemplary damages without enacting a statute. Id. Thus, the legislature could

not waive immunity for exemplary damages, and the trial court erred in failing to grant the

Commission’s plea to the jurisdiction with respect to the claim for exemplary damages. Id.

§ 107.002(a)(10). We sustain the Commission’s fourth issue.



                                             7
       In our review of the remaining claims, which sound in tort, we look to the statute, the

specific language of the joint resolution, as well as the pleadings to determine waiver. The

plain language of the statute permits suit against the state “for any relief to which the

claimant is entitled as a result of the described claim.” Id. § 107.002(a)(1) (emphasis

added).   In other words, we must determine whether the “described claim” in Joint

Resolution 72 is only a breach of contract claim as the Commission suggests, or whether

it encompass the tort claims as Gulf Energy argues. The cause of action alleged must be

proven under the law of this state as in other civil suits. Id. § 107.002(a)(6). Further, the

state also does not grant permission to recover exemplary or punitive damages pursuant

to statute allowing for waiver by resolution. Id. § 107.002(a)(10).

       Joint Resolution 72 states, in pertinent part:

                     (2) One of these orphaned wellbores is designated
              “State Tract 708-S No. 5” . . .

                     (4) In a conference on May 19, 2008, representatives
              from Gulf Energy Exploration Corp., the Railroad Commission
              of Texas, the Office of the Attorney General of the State of
              Texas, American Coastal Energy, Inc., and bankruptcy counsel
              for American Coastal Energy, Inc., reached a tentative
              settlement and forbearance agreement, pending approval of the
              commission, attorney general, and bankruptcy court;

                    (5) On or about May 25, 2008, the Railroad Commission
              of Texas wrongfully plugged and abandoned State Tract 708-S
              No. 5 using Superior Energy Service, Inc., as the plugging
              contractor;

                    (6) By June 9, 2008, all parties to the agreement of May
              19, 2008, had signed the settlement and forbearance
              agreement; . . .



                                              8
        (13) On December 30, 2008, Gulf Energy Exploration
Corp. commenced operation on State Tract 708-S No. 5 in
anticipation of completing workover operations and placing the
well in production ahead of the February 6, 2009, deadline only
to discover that State Tract 7-8-S No. 5 had been wrongfully
plugged;

       (14) One week later, on January 9, 2009, representatives
of Gulf Energy Exploration Corp. and the Railroad Commission
of Texas met to discuss the wrongful plugging of State Tract
708-S No. 5;

       (15) On January 14, 2009, representatives of Gulf
Energy Exploration Corp. and the Railroad Commission of
Texas met again, and the commission admitted to wrongfully
plugging State Tract 708-S No. 5; . . .

       (17) Gulf Energy Exploration Corp. has calculated the
known cost to unplug and drill out State Tract 708-S No. 5 to
2,000 feet to be at least $1,596,650;

        (18) Due to the manner in which State Tract 708-S No.
5 was plugged, a very real risk exists that substantial,
unforeseen problems may emerge in unplugging and drilling out
the well and the amount of contingency to use in calculating
total costs cannot be estimated with any degree of certainty;

         (19) Given the degree of uncertainty in calculating the
contingency, Gulf Exploration Corp. has used a range of 15 to
50 percent of the known costs, estimating the total cost to
unplug and drill out State Tract 708-S No. 5 to 2,000 feet to be
anywhere from $1,836,200 to $2,395,000; however Gulf Energy
Exploration Corp also recognizes, based on experience, that
any cost overrun could exceed the amount of known costs by
100 percent or more and could result in the abandonment of the
well; . . .

       (23) Gulf Energy Exploration Corp. respectfully requests
that the Railroad Commission of Texas provide the funds
necessary to proceed with a risk-free alternative like the
proposal submitted by Applied Drilling Technology, Inc.;



                               9
                     (24) Gulf Energy Exploration Corp. also requests a timely
              response from the Railroad Commission of Texas in providing
              these funds considering the corporation’s lost opportunity in the
              well due to the wrongful plugging of State Tract-S No. 5, now
              therefore, be it

                      RESOLVED by the Legislature of the State of Texas,
              That Gulf Energy Exploration Corp., is granted permission to
              sue the State of Texas and the Railroad Commission subject to
              Chapter 107, Civil Practice and Remedies Code; and be it
              further

                      RESOLVED, That the total of all damages awarded in
              the suit authorized by this resolution, including any courts costs,
              attorney’s fees, and prejudgment interest awarded under the
              law, may not exceed $2,500,000 and that Gulf Energy
              Exploration Corp. may not plead an amount in excess of that
              amount in any suit authorized by this resolution, . . . .

(Emphasis added.)

       The unambiguous language of the resolution states that Gulf Energy was granted

permission to sue and resolved that the total of all damages, including court costs,

attorney’s fees and prejudgment interest could not exceed $2,500,000 and that Gulf Energy

may not plead an amount in excess of that limit. The scope of Joint Resolution 72 allows

Gulf Energy to sue for the “wrongful plugging” and abandoning of well 708-No. 5. Joint

Resolution 72 places an objective limitation on the State’s potential liability. It says that

there may not be a recovery in excess of $2,500,000. As in those cases where immunity

is waived by explicit legislative enactment, the legislature, through Joint Resolution 72, has

created what the case law deems a “simultaneous measure” to provide an “objective

limitation to the State’s liability.” Taylor, 106 S.W.3d at 698. The fact that Joint Resolution

72 specifically provided an objective limitation on the State’s potential liability further


                                              10
evidences an intent to waive immunity. Clearly then, there is no question about the fact that

the Legislature intended to waive immunity and limit its damages.

       However, we find no specific language in the resolution limiting the causes of action

that could be pleaded by Gulf Energy to a breach of contract claim. The resolution

mentions numerous times that there was a “wrongful plugging” and limits the damages

incurred as a result of the wrongful plugging. We see no limitation, however, in the

language of the resolution that would preclude the pleading of a specific cause of action by

which Gulf Energy may attempt recovery for the admitted wrongful plugging of the well. In

fact, the description of the “described claim” in the text of the resolution does not indicate

a breach of contract claim exclusively. While the Commission claims that the wrongful

plugging of the well encompasses only a violation of a contractual undertaking, the plain

language of the resolution does not place such a limitation. “Wrongful plugging” could

reasonably support a claim for negligence. Gulf Energy pleaded that the defendants were

obligated to perform their plugging and positioning and scanning services in accordance

with industry standards and failed to abide by those standards. Gulf Energy also urges that

the defendant breached its duty to use ordinary care in exercising control over contractors

and employees. The joint resolution states that the well was wrongfully plugged after an

agreement was reached. Thus, the resolution could describe a claim for negligence as well

as breach of contract. Further, the Commission has conceded that the joint resolution

grants permission to sue for breach of contract even though the resolution does not

specifically refer to the elements of a cause of action for breach of contract.



                                             11
        The Commission urges that the term “wrongful plugging” is not a common-law term

of art in an oil and gas case. It argues that this term has never been used in a reported

case.   We note, however, that the term “wrongful plugging” was the term-of-art the

legislature chose to use in granting permission to sue, and it is not within our province to

change the wording in a joint resolution. Under the plain language of the resolution, the

term does not appear to exclusively refer to a contractual claim, but a claim concerning

wrongful plugging, which could also encompass Gulf Energy’s claims of negligence. While

the Commission argues that Joint Resolution 72 does not waive immunity from suit for

claims based on allegations that the joint resolution does not cite, the plain language of the

resolution does not so limit the waiver.

        The Commission also urges that the language of the resolution does not contain the

elements of a cause of action for fraud or negligent misrepresentation. We agree. But, we

look to whether the resolution describes a claim for either of these causes of action. See

id. § 107.002(a)(1). A joint resolution waives immunity by describing a claim. Id. Gulf

Energy’s    pleadings   urge   actual      and    constructive   fraud   by   making   material

misrepresentations and omissions upon which Gulf Energy relied. Most notably, the

Commission promised Gulf that it would postpone plugging efforts and stated that it had not

plugged the 708-No.5, and Gulf Energy relied on the representation to its detriment. With

respect to negligent misrepresentation, Gulf Energy urges the same factual claims as it

used to support its fraud pleading.




                                                 12
       In reviewing the language of Joint Resolution 72, there is no verbiage describing a

a situation in which the Commission promised it would postpone plugging efforts and stated

that it had not plugged the 708-No. 5. The plain language of Joint Resolution 72, instead,

suggests that there was a wrongful plugging, whether it was a negligent wrongful plugging

or a breach of contract as the Commission has conceded. The same plain language does

not describe a claim for fraud or negligent misrepresentation. Thus, we sustain the

Commission’s first issue, in part, and we overrule it, in part. We hold that Joint Resolution

72 did not describe claims for fraud or negligent misrepresentation, but did describe claims

for negligence. The Commission has already conceded that Joint Resolution 72 contained

language describing a breach of contract claim.

       By the Commission’s second issue, it urges that a chapter 107 resolution cannot

change the common law and the legislature should not be able to waive immunity for tort

claims that do not exist at common law. It then claims that Texas common law provides that

the State is not subject to: “(1) respondeat superior liability; or (2) intentional-tort liability

absent a statute creating an obligation.”        Thus, the Commission concludes that the

legislature could not have waived immunity from suit for Gulf Energy’s respondeat superior

and intentional tort claims by means of a joint resolution. The only intentional torts pleaded

by Gulf Energy are actual and constructive fraud and we have held that Joint Resolution 72

does not describe a claim for the fraud claim.

       The Commission also argued that absent a statute authorizing respondeat superior

liability, a joint resolution cannot create substantive liability for respondeat superior tort

claims. Here, Joint Resolution 72 is not a waiver of liability, it is merely a consent by the

State allowing Gulf Energy to bring suit for no more than a specified amount of damages.

The Commission argues that the Legislature would have to pass a statute like the Tort


                                               13
Claims Act to change substantive common law in order to allow Gulf Energy to recover.

The statute grants permission to sue the state for “any relief to which the claimant is entitled

as a result of the described claim.” Id. § 107.002 (a)(1). The resolution does not purport

to change substantive law to create new obligations. It merely entitles Gulf Energy to sue

for any relief to which it may be entitled to as a result of the described claim. We overrule

issue two.

                                        V. CONCLUSION

       We reverse the trial court’s denial of the plea to the jurisdiction with respect to Gulf

Energy’s claim for exemplary damages as the State may not grant permission to recover

exemplary or punitive damages pursuant to the statute. Id. § 107.002 (a)(10). We also

reverse the court’s denial of the plea to the jurisdiction with respect to Gulf Energy’s claim

for fraud and negligent misrepresentation and remand to the trial court for actions consistent

with this opinion. The trial court’s denial of the plea to the jurisdiction is otherwise affirmed.




                                                       ROSE VELA
                                                       Justice


Delivered and filed the
5th day of August, 2010.




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