                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00374-CV


             WEST TEXAS MUNICIPAL POWER AGENCY, APPELLANT

                                            V.

                   REPUBLIC POWER PARTNERS, L.P., APPELLEE

                          On Appeal from the 237th District Court
                                  Lubbock County, Texas
               Trial Court No. 2012-501,169, Honorable Paul Davis, Presiding

                                     February 5, 2014

                                       OPINION

                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      This is an accelerated appeal wherein Appellant, West Texas Municipal Power

Agency (WTMPA), challenges the trial court‘s interlocutory order denying its plea to the

jurisdiction in a suit filed by Appellee, Republic Power Partners, L.P., for breach of

contract and breach of warranties. WTMPA contends the trial court erred in denying its

plea to the jurisdiction because it is an entity entitled to governmental immunity under

the facts of this case. Presenting two issues countering Republic Partner‘s position that

immunity does not apply or was statutorily waived, WTMPA contends (1) the
proprietary/governmental distinction employed in the Texas Tort Claims Act, and (2) the

waiver of immunity provisions of chapter 271 of the Texas Local Government Code do

not operate as to deny WTMPA the protections of governmental immunity. For the

reasons to follow, we affirm.


                                           BACKGROUND


       In 1983 the cities of Brownfield, Floydada, Lubbock and Tulia formed WTMPA for

the purpose of obtaining a reliable and adequate source of electric energy for its

citizens.1 WTMPA is a municipal power agency created pursuant to subchapter C of

chapter 163 of the Texas Utilities Code. See TEX. UTIL. CODE ANN. § 163.054(a) (West

2007). A municipal power agency created pursuant to this subchapter is a separate

municipal corporation, a political subdivision of this State, and a political entity and

corporate body distinct from the public entities creating it. See id. at § 163.054(c). A

municipal power agency is expressly authorized to enter into contracts necessary to the

full exercise of its powers, which includes the authority to enter into a contract, lease or

agreement for the generation, transmission, sale or exchange of electric energy. See

id. at § 163.060.


       WTMPA currently obtains the electric energy it resells to its member cities from

Southwestern Public Service (SPS). Under the Power Purchase Agreement with SPS,

WTMPA is required to purchase all of its electric energy from SPS through May 2019.

In 2007, WTMPA was notified by SPS that the existing Power Purchase Agreement

       1
          Two members from each city sit on the board of WTMPA. A ―majority-in-interest‖ required for
voting on important issues is determined by the number of kilowatt hours purchased by each member city
each year. This formula gave Lubbock a 92.8% ―majority-in-interest‖ vote.


                                                  2
would not be renewed. At that time, WTMPA began contemplating how it was going to

supply electric energy to its member cities after expiration of the existing Power

Purchase Agreement.          WTMPA ultimately negotiated and executed a Development

Agreement with Republic Power, a private business entity, for the purpose of forming a

partnership to develop, finance and operate future electric energy generation and

transmission facilities.2


       Under the Development Agreement, Republic Power was responsible for

managing the development process which included the identification and evaluation of

new sources of electric energy.3 The agreement obligated Republic Power to secure

adequate private investment capital to complete the necessary feasibility studies and to

       2
         Municipal power agencies are expressly authorized to contract with private persons. See TEX.
UTIL. CODE ANN. § 163.060(b)(2)(C) (West 2007).
       3
           Section 2.4 of the Development Agreement expressly provides that Republic Power be
responsible for, and have authority to take, all actions it deems necessary to perform the agreement,
including:

       (a) Retaining engineers, attorneys, accountants, financial advisors and other professionals . . . .
       (b) Identifying potential Sites and negotiating for the acquisition of such Sites.
       (c) Commissioning and preparing site surveys . . . .
       (d) Selecting technology for the Project and negotiating for the acquisition or license of such
           technology.
       (e) Designing or supervising the design of the Project . . . .
       (f) Applying for such Governmental Approvals as may be required for the Project.
       (g) Preparing such bid documents as may be required . . . .
       (h) Negotiating contracts for the procurement of renewable and thermal energy to be utilized by
           the Project.
       (i) Negotiating the acquisition of (or options to acquire) easements and rights of way . . . .
       (j) Negotiating contracts for Utilities.
       (k) Negotiating contracts for the sale or other disposition of energy, capacity and End Products.
       (l) Developing a plan of financing, preparing financing documents, preparing offering documents
           and doing all related work necessary to achieve an Initial Closing.
       (m) Developing a Market Standard package of insurance for the Project.
       (n) Selecting Trustee candidates and negotiating one or more Trust Indentures under which the
           Bonds will be issued.
       (o) Selecting investment bankers, underwriter counsel and bond counsel to perform activities
           related to the Project.
       (p) Negotiating and preparing drafts of any Project Owner Contracts, including agreements
           pertaining to the purchase or sale of any goods, services, fuel, electricity or other elements
           incident to the operation of the Project.

                                                   3
implement the findings and recommendations of those studies.         The Development

Agreement further required WTMPA to form a local government corporation to own and

operate any electric energy generation or transmission facility to be built and to issue

bonds to finance their construction.


      The Development Agreement was executed August 1, 2008, and on September

25, 2008, WTMPA‘s Board of Directors unanimously approved High Plains Diversified

Energy Corporation as the local government corporation designated to own and operate

the electric energy generation and transmission facilities contemplated by the

agreement. Thereafter, one addendum dated July 23, 2009, and two amendments

dated October 9, 2009, and May 18, 2011, were added to the Development Agreement.

Initially, per the Development Agreement, the ―Project Owner‖ was WTMPA, but those

rights and obligations were assigned to High Plains.


      Over the next three years, Republic Power raised millions in capital and

expended considerable sums completing feasibility studies and arranging for financing

of the project. The Development Agreement provided for issuance of first mortgage

revenue bonds by the local government corporation, ultimately High Plains, for the

purpose of obtaining the balance of the funds necessary to complete the project. In

furtherance of that financing obligation, a bond validation hearing was ultimately

scheduled in a Lubbock County district court to approve issuance of the revenue bonds.


      Prior to that hearing, at a regularly scheduled meeting of the board of High

Plains, a dispute arose as to the allocation of any surplus revenue generated by the

project. Due to its greater usage of the electric energy to be generated, the City of


                                           4
Lubbock believed it should receive a greater percentage of any surplus revenue. The

Board of Directors disagreed and ultimately, at the bond validation hearing, the City of

Lubbock objected to issuance of the revenue bonds by arguing High Plains was not a

valid local government corporation and WTMPA did not have the authority to create it.

The district court agreed with the City of Lubbock and dismissed the bond validation

proceeding with prejudice. As a result, no revenue bonds were ever issued.


        After the bond validation suit failed, Republic Power filed the underlying suit

against the City of Lubbock and WTMPA alleging breach of the Development

Agreement. Initially, Republic Power alleged that WTMPA breached the agreement but

sought to hold the City of Lubbock liable under a joint enterprise theory.                           Both

defendants filed pleas to the jurisdiction asserting immunity from suit. Republic Power

then amended its petition to allege the City of Lubbock directly breached the

Development Agreement. In response, the City of Lubbock filed an amended plea to

the jurisdiction.     Following a hearing, the trial court granted the City of Lubbock‘s

amended plea but denied WTMPA‘s plea. This appeal followed.4


                       STANDARD OF REVIEW—PLEA TO THE JURISDICTION


            The party suing a governmental entity bears the burden of affirmatively

demonstrating the trial court has jurisdiction to hear the dispute. Tex. Dep’t. of Criminal


        4
           In a related appeal decided this same date, Republic Power challenged the trial court‘s order
granting the City of Lubbock‘s plea to the jurisdiction. See Republic Power Partners, L.P. v. The City of
Lubbock, No. 07-12-00438-CV, 2014 Tex. App. LEXIS ___, (Tex. App.—Amarillo Feb. 5, 2014, no pet.
h.). In that opinion, we held the trial court did not err when it granted the City of Lubbock‘s plea to the
jurisdiction because (1) the proprietary/governmental dichotomy did not apply to contract disputes, and
(2) the waiver of immunity provisions of section 271.152 of the Texas Local Government Code do not
apply so as to waive the City of Lubbock‘s immunity claims.


                                                    5
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). A plea to the jurisdiction is a dilatory

plea, the purpose of which is to defeat a cause of action without regard to whether the

claims asserted have merit. Bland Independent School Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000). In the context of a claim of sovereign or governmental immunity, the

proponent of a plea to the jurisdiction contends the trial court lacks subject matter

jurisdiction over the claim because it is protected by immunity from suit which has not

been legislatively waived. Because immunity from suit defeats a trial court‘s subject

matter jurisdiction, Tex. Dep’t. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999), a

plea to the jurisdiction is the proper way to assert a claim of sovereign or governmental

immunity from suit. Bland, 34 S.W.3d at 555.


       Whether a court has subject matter jurisdiction is a question of law. Tex. Natural

Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Therefore, if

the evidence creates a fact question regarding the existence of jurisdictional facts, the

trial court cannot grant the plea to the jurisdiction and the fact issue must be resolved by

the fact finder. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.

2004). A court deciding a plea to the jurisdiction is not required to look solely to the

pleadings but may consider evidence submitted by the parties, and it must do so, when

necessary to resolve the jurisdictional issues raised. Bland, 34 S.W.3d at 555. If the

relevant evidence is undisputed or fails to raise a fact question on the jurisdictional

issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133

S.W.3d at 228. Accordingly, we review a trial court‘s ruling on a plea to the jurisdiction

under a de novo standard of review. Tex. D.O.T. & Edinburg v. A.P.I. Pipe & Supply,

LLC, 397 S.W.3d 162, 166 (Tex. 2012); Miranda, 133 S.W.3d at 226. In doing so, we


                                             6
exercise our own discretion and redetermine each legal issue, without giving deference

to the lower court‘s decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.

1999) (op. on reh‘g).


                          SOVEREIGN/GOVERNMENTAL IMMUNITY


      Sovereign immunity protects the State, as well as its agencies and officials from

lawsuits for damages and from liability. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist.

v. Texas Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323-24

(Tex. 2006); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

Similarly, the common law doctrine of governmental immunity protects political

subdivisions of the State, including counties, cities and school districts. Ben Bolt, 212

S.W.3d at 324. Under the doctrines of sovereign and governmental immunity, it has

long been recognized that there are two separate components to immunity: (1) immunity

from liability, which bars enforcement of a judgment against a governmental entity, and

(2) immunity from suit, which bars suit against the governmental entity altogether.

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).     Accordingly, the State and

its political subdivisions are protected from both lawsuits and liability unless (1)

immunity does not apply to the claim or (2) immunity has been waived. IT-Davy, 74

S.W.3d at 853.


      These components of immunity have come to be applied in a variety of

circumstances to promote the pragmatic purpose of immunity, which is to ―shield the

public from the costs and consequences of improvident actions of their governments.‖

Tooke, 197 S.W.3d at 332. Therefore, in the context of a suit arising from a breach of


                                           7
contract, a governmental entity may necessarily waive immunity from liability by

entering into the contract, thereby binding itself to the terms of the agreement, but not

waive immunity from suit. Id. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401,

405-06 (Tex. 1997).


       Immunity may, however, be waived and the Legislature has the exclusive

authority to do so by statute.         To ensure that this legislative control is not lightly

disturbed, statutes waiving immunity are strictly construed as not waiving immunity

unless that waiver is effected by ―clear and unambiguous‖ language. See TEX. GOV‘T

CODE ANN. § 311.034 (West 2013). See also Oncor Elec. Delivery Co. LLC v. Dallas

Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012); Tooke, 197 S.W.3d at 332-33.

Any ambiguity should be resolved in favor of retaining immunity. Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).


       In determining whether immunity has been waived, the Texas Supreme Court

has consistently deferred to the Legislature, because doing so allows the Legislature to

protect the complex policymaking function surrounding suits against governmental

entities. IT-Davy, 74 S.W.3d at 853-54. As more fully discussed below, the Texas

Legislature adopted section 271.152 of the Texas Local Government Code to deal with

the waiver of governmental immunity in the context of a breach of contract claim. See §

271.152.5     The Supreme Court has specifically held that ―legislative control over

sovereign immunity allows the Legislature to respond to changing conditions and revise


       5
       Unless otherwise indicated, this and all future references to sections refer to the Texas Local
Government Code.



                                                  8
existing agreements if doing so would benefit the public.‖ Tooke, 197 S.W.3d at 332

(quoting IT-Davy, 74 S.W.3d at 854). With these principles in mind, we turn to the

parties‘ arguments.


                                        ANALYSIS


       As previously stated, WTMPA contends it is entitled to the protections of

governmental immunity because (1) the proprietary/governmental distinction employed

in the Texas Tort Claims Act and (2) the waiver of immunity provisions of chapter 271 of

the Texas Local Government Code do not operate to deny immunity from suit. We start

with the undisputed premise that, as a political subdivision of the State, WTMPA is

otherwise entitled to governmental immunity.


Proprietary/governmental Dichotomy


       Republic Power contends governmental immunity does not apply to the facts of

this case because ―the construction and operation of an electric utility‖ is a proprietary

function for which there is no immunity.        In response to this argument, WTMPA

contends immunity does apply because (1) the initial performance of the Development

Agreement    was not     a   proprietary function;    and,   even   if it   was,   (2) the

proprietary/governmental dichotomy used to determine whether a governmental entity is

immune from suit under the Texas Tort Claims Act does not apply to contractual

disputes. Without further discussion of the merits of this issue, for the reasons stated in

Republic Power Partners, L.P. v. The City of Lubbock, No. 07-12-00438-CV, 2014 Tex.

App. LEXIS ___, (Tex. App.—Amarillo Feb. 5, 2014, no pet. h.), we find the

proprietary/governmental distinction employed in the Texas Tort Claims Act does not

                                            9
apply to contract disputes and does not, therefore, operate to deny WTMPA the

protections of governmental immunity with respect to the claims being asserted by

Republic Power in this suit.6 Issue one is overruled.


Statutory Waiver of Immunity


       Republic Power further contends governmental immunity was waived pursuant to

the provisions of chapter 271 of the Texas Local Government Code; whereas WTMPA

contends that it was not. On this point, we agree with the position taken by Republic

Power.


       In the context of a breach-of-contract claim against a governmental entity, there

is but one route to the courthouse and that route is through section 271.152. General

Servs. Comm‘n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001). Section

271.152 provides: 7


       [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 contract, subject to the term and
       conditions of this subchapter.




       6
          We are aware of the Austin Court of Appeals‘s decision in City of Georgetown v. Lower
Colorado River Authority, 413 S.W.3d 803 (Tex. App.—Austin 2013, pet. filed Dec. 30, 2013). Because
that opinion was issued before the Supreme Court denied petition in City of San Antonio ex. rel. City
Public Service Board v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex. App.—San
Antonio 2012, pet. denied), and for the reasons stated in Republic Power Partners, L.P. v. City of
Lubbock, No. 07-12-00438-CV, 2014 Tex. App. LEXIS __, (Tex. App.—Amarillo Feb. 5, 2014, no pet. h.),
we respectfully reject the reasoning expressed in that opinion.
       7
           The subchapter referenced in § 271.152 is subchapter I of Chapter 271, entitled ―ADJUDICATION
OF CLAIMS ARISING UNDER W RITTEN CONTRACTS     W ITH LOCAL GOVERNMENTAL ENTITIES.‖ TEX. LOCAL GOV‘T
CODE ANN. §§ 271.151 – 271.160 (West 2005).

                                                   10
      Section 271.152 provides a clear and unambiguous waiver of governmental

immunity from suit in the context of a breach of contract claim. City of Dallas v. Albert,

354 S.W.3d 368, 377 (Tex. 2011); Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth.,

320 S.W.3d 829, 838 (Tex. 2010). By enacting section 271.152 in 2005, the Legislature

made a conscious decision ―to loosen the immunity bar so that all local governmental

entities that have been given the statutory authority to enter into contracts shall not be

immune from suits arising from those contracts.‖ Ben Bolt, 212 S.W.3d at 327. This

legislative policy encourages private entities to enter into contracts with local

governmental entities without fear of being denied access to the courts in the event of a

contractual dispute.


      The analysis of whether waiver of immunity applies must necessarily focus on

the contractual language and relationship of the parties. See Ben Bolt, 212 S.W.3d at

327 (finding the relationship between a claimant and governmental entity to be different

from ―the ordinary consumer/seller relationship‖). For the waiver of immunity provisions

to apply, three requirements must be established: (1) the party against whom the waiver

is asserted must be a local governmental entity; (2) the entity must be authorized by

statute or the Constitution to enter into contracts; and (3) the entity must in fact have

entered into a contract that is ―subject to this subchapter.‖ City of Houston v. Williams,

353 S.W.3d 128, 134 (Tex. 2011).


      The first two requirements for waiver of immunity are not in dispute in this case.

As stated above, WTMPA is a municipal power agency created pursuant to subchapter

C of chapter 163 of the Texas Utilities Code. See TEX. UTIL. CODE ANN. § 163.054(a)

(West 2007).    As such, WTMPA is a political subdivision of this State, id. at §

                                           11
163.054(c), and a local governmental entity, TEX. LOCAL GOV‘T CODE ANN. § 271.151(3)

(West 2005), authorized by statute to enter into contracts. See TEX. UTIL. CODE ANN. §

163.060 (West 2007). It is the third requirement, to-wit: whether a contract ―subject to

this subchapter‖ exists, that is at the heart of WTMPA‘s contention that waiver does not

apply to the facts of this case and therefore, the trial court erred in denying its plea to

the jurisdiction.


Contract Subject to Subchapter I


       A ―contract subject to [subchapter I]‖ is defined as ―a written contract stating the

essential terms of the agreement for providing goods or services to the local

governmental entity . . . .‖ See § 271.151(2). See also Albert, 354 S.W.3d at 377.

Accordingly, five elements must be met to determine if the contract is ―subject to this

subchapter.‖ It must be (1) in writing, (2) state the essential terms, (3) provide for goods

or services, (4) to the local governmental entity, and (5) be executed on behalf of the

local governmental entity. See Williams, 353 S.W.3d at 135. It is WTMPA‘s specific

contention that the contract in dispute does not provide for ―goods or services‖ to a local

governmental entity.


         WTMPA‘s argument is two-fold.        WTMPA first contends the Development

Agreement does not provide goods or services to a local government entity because all

rights, duties and obligations arising from the agreement were to be assigned to High

Plains. Secondly, WTMPA contends that no goods or services were actually provided

to it during the ―development period‖ of the contract.




                                            12
Assignment Argument


       WTMPA contends the Development Agreement is not an agreement to provide

goods or services to it because ―all rights and obligations‖ under the agreement were

assigned to High Plains. This argument fails for at least two reasons.


       First, waiver of immunity is triggered by the mere act of entering into a contract

for goods or services. See § 271.152. While an assignment may bear on questions of

ultimate liability, once waived, the assignment of any of the rights, privileges, duties or

obligations arising under the agreement does not revive that which had already been

waived.


       Secondly, WTMPA contends immunity was not waived because it is not liable

under the contract by reason of the assignment.         This argument simply begs the

question. Issues concerning the merits of the claim are distinct from issues concerning

the subject matter jurisdiction of the trial court.   See Miranda, 133 S.W.3d at 226.

Accordingly, the assignment of the Development Agreement to High Plains is irrelevant

to the issue of waiver.


Goods or Services Argument


       WTMPA next contends the Development Agreement is not a contract for goods

or services because ―no goods or services of any kind were to be provided to WTMPA

under the express terms of the [agreement].‖ To analyze this argument we must focus

on the nature and purpose of the agreement.




                                            13
          WTMPA exists for the purpose of providing a reliable and adequate source of

electric energy to its member cities and to generate revenues for those cities. Currently,

WTMPA purchases electric energy from SPS and resells that power to its member

cities.       Because that source of electric energy is scheduled to terminate in 2019,

WTMPA entered into the Development Agreement with Republic Power for the purpose

of ensuring that facilities capable of generating and transmitting its electric energy

needs would be constructed and operational before that date.8 Because developing

and constructing electric energy generation and transmission facilities can take years,

the Development Agreement contemplated a development period during which the

parties would ―evaluat[e] new sources for power generation and transmission, rais[e]

capital and acquir[e] feasibility studies for the design, development, engineering,

financing, legal, regulatory, construction and operations of any project.‖


          The Development Agreement specifically contemplates that Republic Power

would identify and evaluate potential sources of electric energy generation and

transmission and that it would be responsible for managing the development process.

Specifically, Republic Power agreed to obtain necessary feasibility studies for the

design, development, engineering, regulation, construction, and operation of any

electric energy generating facility. Additionally, the agreement charged Republic Power

with the responsibility of securing adequate private investment capital to complete the

feasibility studies and implement the findings and recommendations of those studies. In


          8
           The opening paragraphs of the Development Agreement specifically provide that it is made and
entered into by and between West Texas Municipal Power Agency and Republic Power Partners, L.P. for
the purpose of providing ―a number of diverse, ongoing opportunities to maximize the economic benefits
for public and private entities within the Project Area [to be] derived from renewable as well as traditional
energy resources.‖

                                                     14
an effort to comply with those responsibilities, Republic Power pursued completion of

both feasibility studies and financing options by engaging the services of consultants,

engineers, financial advisors, attorneys and accountants.                        For almost three years,

Republic Power worked with WTMPA in the performance of the Development

Agreement for the ultimate purpose of providing WTMPA and its member cities with a

reliable source of electric energy.


        While chapter 271 of the Texas Local Government Code does not specifically

define ―goods or services‖ that term is a sufficiently broad enough term to encompass a

wide array of activities.9 Kirby Lake Dev., Ltd., 320 S.W.3d at 839. It includes generally

any act performed for the benefit of another under some arrangement or agreement

whereby such act was to have been performed. Id. (quoting Creameries of Am. v.

Indus. Comm’n, 98 Utah 571, 102 P.2d 300, 304 (Utah 1940)). But see Berkman v. City

of Keene, 311 S.W.3d 523, 527 (Tex. App.—Waco 2009, pet. denied) (holding the

statute does not apply to contracts in which the benefit that the local government entity

would receive is an indirect, attenuated one).


        9
            ―Goods‖ have been defined in other statutes as follows: (1) ―tangible personal property,‖ TEX.
FIN. CODE ANN. §§ 345.002(a) and 371.003 (West 2006); (2) ―real or tangible personal property,‖ TEX. TAX
CODE ANN. § 171.1012 (West Supp. 2013); (3) ―minerals or the like (including oil and gas) or a structure or
its materials to be removed from realty,‖ TEX. BUS. & COM. CODE ANN. § 2.107 (West 2009); (4) ―property,
tangible or intangible, real, personal, or mixed, and any article, commodity, or other thing of value,
including insurance,‖ id. at § 15.03(2); (5) ―tangible chattels or real property purchased or leased for use,‖
id. at § 17.45(1); (6) ―supplies, materials, or equipment,‖ TEX. GOV‘T CODE ANN. § 2155.001(1) (West
2008). Likewise, ―services‖ has been defined in other statutes as follows: (1) ―work, labor, or service
purchased or leased for use, including services furnished in connection with the sale or repair of goods,‖
TEX. BUS. & COM. CODE ANN. § 17.45(2) (West 2011); and (2) ―any act performed, anything supplied, and
any facilities used or supplied by a public utility in the performance of the utility‘s duties . . . . ‖ TEX. UTIL.
CODE ANN. § 11.003(19) (West 2007); (3) ―services primarily intended to guide governmental policy to
ensure the orderly and coordinated development of the state or of municipal, county, metropolitan, or
regional land areas,‖ TEX. LOCAL GOV‘T CODE ANN. § 252.001(5) (West 2005); (4) ―services within the
scope of the practice . . . of . . . professional engineering,‖ TEX. GOV‘T CODE ANN. § 2254.002(a)(vii) (West
2008); (5) ―skilled or unskilled labor or professional services, as defined by Section 2254.002,
Government Code,‖ TEX. LOCAL GOV‘T CODE ANN. § 176.001(6) (West 2008).

                                                        15
         The Development Agreement clearly contemplated the performance of acts

leading to the development and implementation of a plan ultimately resulting in the

construction and operation of a power generating facility, which would then provide

electricity to WTMPA and its member cities. It matters not that the dispute arose during

the development stage of this agreement when the objective of the agreement was to

plan for the ultimate acquisition of a good or service.                      Parsing a long-term high

technology procurement contract,10 such as the research and development of an

electric energy production and delivery system, into ―phases‖ where the ultimate goal is

to provide something as complex as a public utility does not serve the legislative

purposes of section 271.152.


        Furthermore, the goods or services provided to the governmental entity need not

be the primary purpose of the contract, Kirby Lake Dev., Ltd., 320 S.W.3d at 839, or

even form the basis of the dispute. Ben Bolt, 212 S.W.3d at 327. In Ben Bolt, the

Supreme Court liberally construed a government-pooled insurance policy (the Fund) as

encompassing ―services‖ rendered by its members based on the fact the Fund‘s

members elected a governing board and a board subcommittee resolved claims

disputes. Id. at 327. This function, the Court determined was a provision of services

from the Fund‘s members to the Fund. Id. In this case, WTMPA sought and received

planning and development services—services essential to ultimate acquisition of

electric energy and services which were clearly intended to benefit WTMPA and its

member cities.        Therefore, we find the Development Agreement provides for the


        10
           ―‗High technology procurement‘ means the procurement of equipment, goods or services of a
highly technical nature, including: . . . (C) electronic distributed control systems, including building energy
management systems . . . .‖ TEX. LOCAL GOV‘T CODE ANN. § 252.001(4) (West 2005).

                                                      16
delivery of goods or services to a local governmental entity and we conclude section

271.152 waives immunity from suit for the purpose of adjudicating Republic Power‘s

breach of contract claims. Issue two is overruled. Accordingly, we hold the trial court

did not err in denying WTMPA‘s plea to the jurisdiction as to those claims.


                                      CONCLUSION


      We affirm the trial court‘s order denying WTMPA‘s plea to the jurisdiction on

Republic Power‘s claims for breach of contract.



                                                  Patrick A. Pirtle
                                                      Justice




                                           17
