
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-06-300 CV

____________________


SAN JACINTO COUNTY AND 

SAN JACINTO COUNTY COMMISSIONERS COURT, Appellants


V.


JOHN NUNN, SR., Appellee




On Appeal from the 411th District Court
San Jacinto County, Texas

Trial Cause No. 11,393




OPINION
	The issue in this case is whether San Jacinto County ("County") has governmental
immunity from a suit for claims made by John Nunn, Sr. ("Nunn") arising from his written
contract with the County.  We conclude the County is immune from Nunn's suit and order
his claims dismissed.
Background

	In his suit, Nunn asserts the County breached its written contract with him under
which he provided consulting services for the County.  The parties originally executed the
contract on October 1, 2002.  The contract contained a provision for automatic renewal
unless it was cancelled in writing 30 days prior to the beginning of the County's fiscal year
on October 1.  The contract required the County to pay Nunn approximately $42,500 per
annum.  During the first year of the contract, the County paid the sum required by the
contract.  In a letter dated September 2, 2003, the County Judge advised Nunn that the
County would be reviewing the emergency telephone program in its budget process, and that
"it is possible the personal services contract with you will not be renewed for Fiscal Year
2004.  This letter will suffice as the 30 day notice of termination if that proves to be the
case."  Subsequently, the County did not budget the funds to pay for Nunn's consulting
services. 
	Nunn demanded payment under his written contract with the County on October 16,
2003.  Nunn filed suit on October 31, 2005 naming as defendants San Jacinto County and
San Jacinto County Commissioners Court. (1)  Nunn seeks to recover payments allegedly owed
to him for the period October 1, 2003 through October 1, 2006.  Nunn contends that the
County's letter dated September 2, 2003, did not terminate his contract and that his contract
automatically renewed annually. 
	San Jacinto County answered, contending that the trial court had no subject matter
jurisdiction.  Also, the County pled that it paid Nunn for the first year and that the contract's
automatic renewal provision was illegal because a county cannot obligate itself for debts
beyond one budget year.  The County asserted no claims for affirmative relief.  Subsequently,
the County moved for summary judgment and asserted that its sovereign immunity prohibited
the trial court's exercise of subject matter jurisdiction over Nunn's suit.  After the trial court
denied the County's motion for summary judgment, the County appealed.   
Jurisdiction Over Appeal
	On appeal, Nunn contends that we do not have jurisdiction.  However, section
51.014(a)(8) of the Texas Civil Practice and Remedies Code gives us jurisdiction over the
interlocutory appeal of a summary judgment order in which the trial court expressly or
implicitly denies a governmental unit's jurisdictional challenge.  Thomas v. Long, 49 Tex.
Sup. Ct. J. 532, 2006 WL 1043429, at *4 (Tex. April 21, 2006)(not yet released for
publication).  While generally a party may appeal only a final judgment or order, section
51.014(a)(8) provides an exception to the rule.  This statute allows an interlocutory appeal
from an order that "grants or denies a plea to the jurisdiction by a governmental unit as that
term is defined in Section 101.001."  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(Vernon Supp. 2006).  A county is expressly included as a governmental unit in section
101.001.  Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 2005).
	The County's summary judgment motion included a challenge to the trial court's
jurisdiction.  In denying the  motion, the trial court found there was "a disputed fact issue." 
The trial court's order implies that it rejected the County's challenge to the court's
jurisdiction over the dispute.  "That implicit denial satisfies section 51.014(a)(8) of the Texas
Civil Practice and Remedies Code and gives the court of appeals jurisdiction to consider [the]
interlocutory appeal."  Thomas at *4.  Based on the Texas Supreme Court's ruling in
Thomas, we hold that we have jurisdiction over the County's appeal. 
Jurisdiction Over the Suit
	The County asserts the trial court's order denying summary judgment should be
reversed because the County is immune from a suit over Nunn's breach of contract claim. 
The County further asserts that it did nothing to waive its immunity from suit.   
	The doctrine of governmental immunity protects counties.  Wichita Falls State Hosp.
v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Travis County v. Pelzel & Associates, Inc.,
77 S.W.3d 246, 248 (Tex. 2002) ("A county is a governmental unit protected by the doctrine
of sovereign immunity.").  Immunity from suit deprives a trial court of subject-matter
jurisdiction unless the state consents to suit.  Texas Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 224 (Tex. 2004); Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999).  "A party may establish consent by statute or legislative resolution."  Pelzel, 77
S.W.3d at 248.  
	In Federal Sign v. Texas Southern University, the Texas Supreme Court held
sovereign immunity barred a breach of contract claim asserted by Federal Sign against Texas
Southern University (TSU), a governmental entity.  Federal Sign v. Texas Southern
University, 951 S.W.2d 401, 403 (Tex. 1997), superceded by statute on other grounds as
stated in Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001). 
The facts of Federal Sign are straightforward.  TSU accepted Federal Sign's bid to build
scoreboards for the school.  After Federal Sign began building the scoreboards, but before
their delivery, TSU cancelled its order.  TSU asserted that sovereign immunity barred Federal
Sign's breach of contract claim.  Id.  The Texas Supreme Court held that TSU was immune
from suit under the doctrine of sovereign immunity and ordered the suit dismissed.  Id. at
403, 408-09. 
	The Texas Supreme Court recognizes a distinction between immunity from suit, which
bars legal action against the State, and immunity from liability, which protects the State from
judgments.  Id. at 405-06.  A governmental entity can waive immunity from liability, but not
immunity from suit.  Id.  Following Federal Sign, the Texas Supreme Court explained the
distinction as follows:  
	Immunity from liability and immunity from suit are two
distinct principles.  Immunity from liability protects the state
from judgment even if the Legislature has expressly consented
to the suit.  Like other affirmative defenses to liability, it must
be pleaded or else it is waived.  Immunity from liability does not
affect a court's jurisdiction to hear a case. 

	In contrast, immunity from suit bars an action against the
state unless the state expressly consents to the suit.  The party
suing the governmental entity must establish the state's consent,
which may be alleged either by reference to a statute or to
express legislative permission.  Since as early as 1847, the law
in Texas has been that absent the state's consent to suit, a trial
court lacks subject matter jurisdiction.

Jones, 8 S.W.3d at 638 (citations omitted).  
	Therefore, we review the record to determine whether Nunn established that the
County consented to being sued.  Nunn's First Amended Petition asserts that he "performed
the services contracted for" and that those services included "engineering, architectural or
construction services" as allowed under section 262.007 of the  Local Government Code. 
On appeal, Nunn relies on the statutory waiver provision contained in section 262.007 and
argues that it operates to waive the County's immunity from his suit.  Nunn directs us to no
other provisions establishing the County's alleged waiver of its immunity from suit.  
	Because it is relevant to the resolution of the question presented, we set out the full
text of section 262.007, which provides:
 § 262.007.  Suit Against County Arising Under Certain Contracts
(a) A county that is a party to a written contract for engineering,
architectural, or construction services or for goods related to
engineering, architectural, or construction services may sue or be sued,
plead or be impleaded, or defend or be defended on a claim arising
under the contract.  A suit on the contract brought by a county shall be
brought in the name of the county.  A suit on the contract brought
against a county shall identify the county by name and must be brought
in a state court in that county.
(b) The total amount of money recoverable from a county on a claim
for breach of the contract is limited to the following:
(1) the balance due and owed by the county under the contract as it
may have been amended, including any amount owed as
compensation for the increased cost to perform the work as a direct
result of owner-caused delays or acceleration;
(2) the amount owed for change orders or additional work required
to carry out the contract;
(3) reasonable and necessary attorney's fees that are equitable and
just; and
(4) interest as allowed by law.
© An award of damages under this section may not include:
      (1) consequential damages, except as allowed under Subsection    
       (b)(1);
      (2) exemplary damages;  or
      (3) damages for unabsorbed home office overhead.

(d) This section does not waive a defense or a limitation on damages
available to a party to a contract, other than a bar against suit based on
sovereign immunity.

(e) This section does not waive sovereign immunity to suit in federal
court.

Tex. Loc. Gov't Code Ann. § 262.007 (Vernon 2005).  
	Also relevant to our opinion is the enabling language of section 262.007, which 
provides:  
	Section 4. (a)  This Act takes effect September 1, 2003. 

(b) This Act applies only to a claim arising under a contract
executed on or after September 1, 2003.  A claim that arises
under a contract executed before September 1, 2003, is
governed by the law as it existed on the date the contract is
executed, and the former law is continued in effect for that
purpose.

Act of May 29, 2003, 78th Leg., R.S., ch. 1203, § 4, 2003 Tex. Gen. Laws 3419.   
	The County argues that because it executed the contract at issue prior to September
1, 2003, section 262.007 does not apply.  The County further argues that the provision does
not apply to Nunn's contract because he did not provide engineering, architectural, or
construction services.  Conversely, Nunn argues that section 262.007 applies because the
contract automatically renewed and became a new contract after September 1, 2003. 
However, Nunn cites no case law that deems the renewal date of a contract as the equivalent
of the contract's execution date.  Nunn also argues that his pleadings, which assert that he
provided engineering, architectural, and construction services, must be taken as true.  Nunn
contends the County's summary judgment evidence is insufficient to establish, as a matter
of law, that his services did not include engineering, architectural, or construction services. 
	The October 1, 2002 execution date on Nunn's contract with the County pre-dates the
effective date of section 262.007.  Nunn cites no cases holding that the Legislature intended
the enabling provision of section 262.007 to allow the statute to reach contracts that were
executed prior to the statute's effective date but that contain automatic renewal provisions. 
	Thus, we must decide whether a contract that contains an automatic renewal provision
is considered to be re-executed on its automatic renewal date.  In analyzing the enabling 
provision of section 262.007, we look to the common meaning of the term "executed" in the
context of contracts, as required by section 311.011 of the Code Construction Act.  Tex.
Gov't Code Ann. § 311.011 (Vernon 2005).  In Black's Law Dictionary, execute means
"[t]o make (a legal document) valid by signing; to bring (a legal document) into its final,
legally enforceable form <each party executed the contract without a signature witness>." 
Black's Law Dictionary 609 (8th ed. 2004).  "Execute" as defined in Webster's
Dictionary means to "perform what is required to give validity to (as by signing and perhaps
sealing and delivering) <~ a deed>."  Webster's Third New International Dictionary
794 (2002). 
	Based upon the common usage of "executed" as reflected by Black's and Webster's,
we hold that "executed," as commonly used in the context of a written contract signed by the
parties, means the date the contract is signed.  In this case, the parties signed the contract
once, and this act occurred prior to the effective date of section 262.007.  Although the
parties could have contracted to require a re-execution before the contract renewed, they did
not.  Our interpretation of the parties' use of the term "execute" appears consistent with their
use of the term.
	Our construction of the renewal provision in the contract is consistent with the
Legislature's mandate that "a statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and unambiguous language."  Tex. Gov't
Code Ann. § 311.034 (Vernon Supp. 2006).  The construction of "executed" urged by Nunn
could result in broadening waivers of sovereign immunity in situations where the
governmental unit did not clearly intend to waive its sovereign immunity.  We do not believe
the Legislature clearly and unambiguously intended a general waiver of a county's
governmental immunity in situations where a contract is renewed, rather than executed after
the effective date of section 262.007.
	In conclusion, the pleadings before the trial court failed to demonstrate that the
County waived its immunity from Nunn's suit.  We hold the trial court erred in failing to
dismiss Nunn's suit.  We reverse the trial court and render judgment dismissing Nunn's
claims because the trial court lacked subject matter jurisdiction.  
	REVERSED AND RENDERED.

								____________________________
									HOLLIS HORTON
										Justice

Submitted on September 19, 2006
Opinion Delivered September 28, 2006
Before McKeithen, C.J., Gaultney and Horton, JJ.
1. Although Nunn's citation reflects that he served San Jacinto County and the San Jacinto
County Commissioners Court, he purportedly obtained service on both by serving the Court Judge. 
The San Jacinto County Commissioners Court is not a separate legal entity from the County.  See
generally Tex. Loc. Gov't Code Ann. § 71.001-.025 (Vernon 1999 & Supp. 2006).  Additionally,
Rule 33 of the Texas Rules of Civil Procedure requires that "[s]uits by or against a county or
incorporated city, town or village shall be in its corporate name." Nunn did not seek or obtain
service on any of the County Commissioners individually.  Nunn's suit fails to distinguish between
his claims against the County and the Commissioners Court, and all of his claims arise from a
written contract with the County.  Thus, we assume Nunn intended to pursue his contract claim
against the entity that entered into the contract.  We discourage any implication that a party may
properly attempt to sue a county by naming a non-existent entity, the county commissioners, or by
naming individual county commissioners, because a county is not made a party to a suit by joining
the individual commissioners.  Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327 (1956).  Here,
San Jacinto County is the legal entity under the rules of procedure for breach-of-contract claims. 
Further, San Jacinto County was served, and it answered.  Thus, we view Nunn's lawsuit as a suit
against San Jacinto County because the County is a named party in a suit that also names the County
Commissioners.  We therefore treat Nunn's claims against the defendants as being asserted only
against San Jacinto County.
