                                   NO. 07-09-00222-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                     MARCH 12, 2010


                          THE STATE OF TEXAS, APPELLANT

                                              v.

                     CHAPMAN CHILDREN'S TRUST I, APPELLEE


          FROM THE COUNTY COURT AT LAW NO 1 OF POTTER COUNTY;

            NO. 81,106-1; HONORABLE W. F. (CORKY) ROBERTS, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellee, the Chapman Children=s Trust I, filed a motion to enforce an agreed

judgment affecting it and appellant the State of Texas. The State filed a plea to the

jurisdiction which the trial court denied. The State now brings this interlocutory appeal

challenging the trial court=s order. We will affirm.


                                        Background


       On November 16, 2000, the trial court signed an agreed judgment in a

condemnation proceeding brought by the State against the Trust, in which the State
acquired land for construction of a part of Loop Highway 335 near Amarillo. The agreed

judgment determined the compensation to be paid by the State, and addressed future

construction events. Among other things, the judgment provided:


      [The Trust] will give all necessary right-of-way for one way frontage roads,
      turnaround under the BNSF Railway Bridge and future Coulter Street
      interchange with Loop Highway 335, each to be built by TxDOT, at [the
      State's] costs, in the area agreed to by George Chapman and TxDOT as
      needed.

      The Trust’s motion to clarify and enforce the agreed judgment, filed in the same

cause, alleged the agreed judgment obligated the State to Ainstall an overpass with one-

way frontage roads at the then future Coulter Street interchange with Loop Highway

355.@ The motion sought an order declaring these improvements had become Aneeded@

and compelling the State to Aimmediately@ undertake construction. The State filed a

plea to the jurisdiction which was denied.     It challenges this ruling by interlocutory

appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon 2008).1


                                        Analysis


      Through a single issue the State contends the trial court is without jurisdiction to

consider the Trust=s motion. It argues the motion is an attempt by the Trust to obtain

relief beyond the scope of the agreed judgment and the motion contravenes the State=s

sovereign immunity from suit.




      1
         Hearing of the motion and all other trial court proceedings are stayed pending
resolution of the appeal. Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(b) (Vernon 2008).

                                           2
       A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack

of subject-matter jurisdiction.   Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004). Whether the trial court lacks subject-matter jurisdiction is a question of law we

review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). A plea to the

jurisdiction may be presented as either an attack on the sufficiency of the pleadings, as

the State does here, or an evidentiary attack on the existence of jurisdictional facts.

See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

We liberally construe the plaintiff=s petition, looking to the pleader=s intent. Holland, 221

S.W.3d at 642-43.


       The Trust’s underlying motion to clarify and enforce is its second effort to enforce

the 2000 agreed judgment. In 2007, the Trust filed a similar motion, which the trial court

granted in July of that year. On the State=s appeal, we vacated the 2007 order, finding it

included a requirement not contained in the agreed judgment. We applied case law

holding that an enforcement order may not be inconsistent with the judgment enforced

and must not constitute a material change in substantial adjudicated portions of the

judgment.2 See State v. Chapman Children=s Trust I, No. 07-08-0050-CV, 2008 WL

4508767 (Tex.App.BAmarillo Oct. 8, 2008, no pet.) (mem. op.).




       2
         See Harris County Appraisal Dist. v. West, 708 S.W.2d 893, 896 (Tex.App.--
Houston [14th Dist.] 1986, orig. proceeding) (citing Various Opportunities, Inc. v.
Sullivan Investments, Inc., 677 S.W.2d 115, 118 (Tex.App.--Dallas 1984, no writ). We
cited also Bank One, N.A. v. Wohlfahrt, 193 S.W.3d 190, 194-95 (Tex.App.--Houston
[1st Dist.] 2006, no pet.) for the proposition that a post-judgment enforcement order may
not add obligations to those required by the judgment.

                                             3
       In its current appeal, the State contends that Chapman’s 2009 motion also seeks

relief beyond that permitted in an enforcement order. It argues the trial court cannot

grant the relief the Trust seeks without making a substantial change in the agreed

judgment or adding obligations to it. Thus, the State concludes, the trial court lacks

jurisdiction to consider the motion. In support, the State cites First Alief Bank v. White,

682 S.W.2d 251 (Tex. 1984) (orig. proceeding, per curiam) and Kenseth v. Dallas

County, 126 S.W.3d 584 (Tex.App.—Dallas 2004, pet. denied). Neither case supports

the State’s contention. In both cases, the appellate courts found orders entered by the

trial courts exceeded their authority, but those determinations were made after the

orders were entered. First Alief Bank, 682 S.W.2d at 251, 252 (mandamus review of

order); Kenseth, 126 S.W.3d at 599-600 (review on appeal of orders signed outside

plenary power). A trial court has both inherent and rule-given power to enforce its

judgments. See Tex. R. Civ. P. 308; Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982)

(orig. proceeding) (inherent enforcement power). If the trial court here enters an order

on the Trust’s motion that exceeds the court’s authority, the error can be corrected on

appeal, as occurred with the 2007 order.


       With respect to the State’s contention sovereign immunity deprives the trial court

of jurisdiction to consider the Trust’s motion to clarify and enforce the agreed judgment,3

we find guidance in the supreme court=s plurality opinion in Texas A & M

UniversityBKingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002).             Lawson, a faculty
       3
        Because immunity from suit affects the court=s jurisdiction, it is properly raised in
a plea to the jurisdiction. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696
(Tex. 2003).


                                             4
member, sued the university alleging, among other things, violations of the

Whistleblower Act.4 Id. at 518-19. The parties reached a settlement. Lawson released

his claim and the case was dismissed with prejudice. Id. at 519. Later, Lawson sued

the university alleging breach of the settlement agreement. The university filed a plea to

the jurisdiction claiming sovereign immunity. Id. It was denied and the order affirmed

by the court of appeals.


      On the university=s petition for review, the supreme court noted:


      [W]hen a governmental entity is exposed to suit because of a waiver of
      immunity, it cannot nullify that waiver by settling the claim with an
      agreement on which it cannot be sued. The government cannot recover
      waived immunity by settling without defeating the purpose of the waiver in
      the first place.


Lawson, 87 S.W.3d at 521. It accordingly held, A[H]aving waived immunity from suit in

the Whistleblower Act, the State may not now claim immunity from a suit brought to

enforce a settlement agreement reached to dispose of a claim brought under that Act.@

Id. at 522-23.     To hold otherwise, Awould limit settlement agreements with the

government to those fully performed before dismissal of the lawsuit because any

executory provision could not thereafter be enforced.@ Id. at 521.


      Here, the agreed judgment settled a suit in condemnation brought by the State

against the Trust.    Article 1, section 17 of the Texas Constitution requires the

condemnor in an eminent domain action make adequate compensation for the property


      4
          Tex. Gov=t Code Ann. ' 554.001-.010 (Vernon 2004).


                                            5
taken.5   The Fort Worth Court of Appeals applied Lawson to the settlement of an

eminent domain proceeding, holding a city was not immune from a subsequent action

for breach of the settlement agreement. City of Carrollton v. Singer, 232 S.W.3d 790,

800 (Tex.App.BFort Worth 2007, pet. denied).         We also find the Lawson opinion

provides a sufficient answer to the State’s contention its agreed judgment settling its

condemnation proceeding against the Trust cannot be judicially clarified or enforced

because of sovereign immunity.6


      The State makes other arguments in support of its sovereign immunity claim,

including a contention the agreed judgment is so indefinite as to be unenforceable as a

contract. But A[i]mmunity from suit does not turn on the validity of the settlement

agreement sued on.@ Lawson, 87 S.W.3d at 523. As a dilatory plea, a plea to the

jurisdiction should be decided without delving into the merits of the case.7 Bland Ind.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).        Moreover, none of the State’s

additional arguments convince us our application of Lawson here is mistaken.


      We find the trial court did not err in overruling the State=s plea to the jurisdiction

on this ground, and so overrule the State’s sole issue.

      5
        In pertinent part, Article 1, section 17 of the Texas Constitution provides that
A[n]o 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.
      6
       That the Trust seeks clarification or enforcement of the agreed judgment in the
same cause, rather than in a later-filed separate suit for breach as in Lawson, 87
S.W.3d at 523, and Singer, 232 S.W.3d at 794, further weakens the State’s sovereign
immunity claim.
      7
        Accordingly, we do not consider, and express no opinion on, the correctness of
the Trust’s contentions regarding the meaning of the language of the agreed judgment.

                                            6
                                  Conclusion


The trial court’s order denying the State=s plea to the jurisdiction is affirmed.




                                                  James T. Campbell
                                                       Justice




                                       7
