                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-14-00198-CV
                          ____________________

                      SOUTH EAST TEXAS
            REGIONAL PLANNING COMMISSION, Appellant

                                       V.

                     BYRDSON SERVICES, LLC,
            D/B/A EXCELLO CONSTRUCTION, LLC, Appellee

_______________________________________________________           ______________

                   On Appeal from the 60th District Court
                         Jefferson County, Texas
                        Trial Cause No. B-194,446
________________________________________________________           _____________

                                   OPINION

     In this interlocutory appeal, we are asked to review the trial court’s decision

denying the South East Texas Regional Planning Commission’s plea to the

jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp.

2014) (authorizing appeals from interlocutory orders deciding pleas to the




                                        1
jurisdiction). 1 After reviewing the relevant evidence and the pleadings, we hold the

trial court should have granted the Planning Commission’s plea. We reverse the

trial court’s order, and we render judgment in the Planning Commission’s favor,

ordering that it be dismissed from the suit.

                                     Background

      In 2013, Byrdson Services, LLC sued several defendants, including the

Planning Commission, alleging that the defendants had breached various contracts

that involved the repair of homes damaged in Hurricane Ike.2 The homes were

repaired through a program funded by the federal government and administered by

the States. In its suit, Byrdson claimed that the Planning Commission had not paid

it for some of the work it completed, that the Planning Commission had wrongfully

refused to allow it to complete its work, and that the Planning Commission had

failed to timely pay Byrdson for its work after having been sent its final invoice.

Because Byrdson knew that governmental entities such as planning commissions

are generally immune from suits for damages in the absence of a statute waiving

the entity’s right to governmental immunity, Byrdson also alleged in its pleadings

      1
        Because the subsequent amendments do not affect the outcome of this
appeal, we cite the current statute that authorizes the Planning Commission’s
appeal.
      2
        Hurricane Ike made landfall on Galveston Island on September 13, 2008.
City of Houston v. Carlson, 393 S.W.3d 350, 359 n.7 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
                                          2
that the Legislature had waived the Planning Commission’s immunity for breach of

contract claims in section 271.152 of the Texas Local Government Code. Tex. Loc.

Gov’t Code Ann. § 271.152 (West 2005).

      In addition to its breach of contract claims, Byrdson’s live pleading alleges

that the Planning Commission violated the Prompt Pay Act under Chapter 2251 of

the Government Code. Tex. Gov’t Code Ann. §§ 2251.001-.055 (West 2008)

(providing payment deadlines for governmental entities). With respect to that

claim, Byrdson alleged that the Prompt Pay Act waived the Planning

Commission’s right to rely on a governmental immunity claim, but Byrdson’s

petition was not specific about which section within Chapter 2251 provided the

waiver that allowed the trial court to exercise jurisdiction over the Planning

Commission on Byrdson’s Prompt Pay Act claim.

      In response to Byrdson’s suit, the Planning Commission filed a plea to the

jurisdiction. In a timely filed amended plea, the Planning Commission asserted that

the trial court did not have jurisdiction over Byrdson’s claims. According to the

Planning Commission’s plea, it was not a party to the various contracts at issue, as

those contracts were between Byrdson and the various homeowners that Byrdson

had sued. Additionally, the Planning Commission asserted that Byrdson’s contracts

did not require Byrdson to provide goods and services to the Planning



                                         3
Commission, and it claimed that the Legislature had not waived its right to

governmental immunity with respect to Byrdson’s Prompt Pay Act claim.

      Following a hearing on the Planning Commission’s plea, the trial court

concluded that the Planning Commission was not immune from the claims

Byrdson was making in its suit and denied the Planning Commission’s plea. On

appeal, the Planning Commission challenges the trial court’s ruling on its plea.

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (authorizing an interlocutory

appeal from a trial court’s ruling to grant or deny a governmental unit’s plea

challenging the trial court’s jurisdiction).

                                  Standard of Review

      Whether a court has subject-matter jurisdiction over a dispute that involves a

governmental agency is a question of law. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). On appeal, courts use a de novo

standard in determining whether the plaintiff’s pleadings allege sufficient facts to

demonstrate that a trial court has jurisdiction over the controversy. Id. In reviewing

the pleadings, courts are not to weigh whether the plaintiff’s claims have merit;

instead, courts must decide whether the pleadings and the evidence before the trial

court demonstrate that the court may exercise jurisdiction over the parties’ dispute.

See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).



                                               4
      In reviewing whether the pleadings demonstrate that the trial court has

jurisdiction over the subject of the dispute, the plaintiff’s pleadings must

“affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of

immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.

2003). When the plea “challenges the existence of jurisdictional facts,” the relevant

evidence submitted by the parties is considered, when necessary, in resolving the

defendant’s challenge. Miranda, 133 S.W.3d at 227. In this appeal, the dispute

concerns whether Byrdson’s pleadings and the evidence demonstrate that the

Legislature waived the Planning Commission’s immunity regarding Byrdson’s

breach of contract and Prompt Pay Act claims.

      The various contracts, all of which were before the trial court at the time of

the hearing on the plea, involve different homes and homeowners. However, all of

the contracts contain the same language with respect to Byrdson’s obligations to

provide goods and services, and all of the contracts contain the same language with

respect to Byrdson’s and the Planning Commission’s obligations. The parties have

not asserted that any of the agreements before the trial court are ambiguous;

therefore, the question of how the language in the various contracts should be

interpreted presents a question of law that can be properly decided by a court

without a jury. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d

647, 650 (Tex. 1999). In an appeal, disputes that concern the proper interpretation

                                         5
of unambiguous written agreements are reviewed using a de novo standard. See id.

at 650-51.

                                      Analysis

      “Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State and its political subdivisions from lawsuits and liability for money

damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.

2008). As political subdivisions of the State, and unless their immunity has been

expressly waived, regional planning commissions are generally immune from suit.

Tex. Loc. Gov’t Code Ann. § 391.003(c) (West 2005). A governmental unit, like a

water control and improvement district or a regional planning commission, is

generally immune from suit unless its immunity was waived by the Legislature.

See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 836

(Tex. 2010) (noting that water control and improvement districts are political

subdivisions of the State); N. Cent. Tex. Council of Gov’ts v. MRSW Mgmt., LLC,

405 S.W.3d 364, 368 (Tex. App.—Austin 2013, pet. denied) (explaining that

regional planning commissions are political subdivisions of the State).

      “Governmental immunity includes both immunity from liability, ‘which bars

enforcement of a judgment against a governmental entity, and immunity from suit,

which bars suit against the entity altogether.’” Lubbock Cnty. Water Control &

Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014)

                                          6
(quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)). Here, the

parties do not dispute that the Planning Commission is a governmental entity;

instead, the dispute concerns whether the Legislature waived the immunity of

regional planning commissions for the claims asserted in Byrdson’s Fourth

Amended Petition.

      In 2005, the Legislature enacted a statute waiving the governmental

immunity of local governmental entities, like planning commissions, regarding

some claims arising from contracts involving goods and services. See Tex. Loc.

Gov’t Code Ann. § 271.152. The scope of the waiver created by the Legislature for

breach of contract claims is described in section 271.151(2). See id. § 271.151(2)

(West Supp. 2014); 3 and see § 271.152. In other words, the waiver is limited, not

limitless. Consequently, the jurisdictional evidence must establish that the claims

arising from the contract at issue fall within the definition of the waiver found in

section 271.151(2) of the Local Government Code.

          The waiver described in Chapter 271 requires: “(A) a written contract

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


      3
       Although the contracts at issue were executed prior to the date the
Legislature amended section 271.151, we cite the current version because the 2013
amendments to section 271.151 are not material to the issues before us in the
appeal. See Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 1, sec. 271.151(2),
2005 Tex. Gen. Laws 1548, 1548 (current version at Tex. Loc. Gov’t Code Ann. §
271.151 (West Supp. 2014)).
                                         7
local governmental entity that is properly executed on behalf of the local

governmental entity[.]” Id. § 271.151(2)(A) (defining “‘Contract subject to this

subchapter’” in relation to section 271.152’s waiver of immunity). Several of the

requirements of Chapter 271 needed to demonstrate the waiver applies are not

disputed in this appeal. The agreements at issue are in writing, and the Planning

Commission does not dispute that it was authorized to execute them. 4 The parties

also do not dispute that the written contracts contain all of the essential terms of the

parties’ agreements. 5

      However, the Planning Commission disputes whether it was a party to the

respective contracts at issue. It also disputes whether the contracts obligated


      4
        In light of our disposition of the appeal, it is not necessary that we decide
whether the Planning Commission was authorized to enter into the agreements at
issue. Cf. N. Cent. Tex. Council of Gov’ts v. MRSW Mgmt., LLC, 405 S.W.3d 364,
369 (Tex. App.—Austin 2013, pet. denied) (holding that the contract at issue was
authorized by a provision in section 791.025 of the Texas Government Code).
      5
        We note that the contract documents before us are incomplete, as they do
not contain one of the attachments that is referenced by the agreements. The
respective agreements reference five attachments, and the language in the
agreements indicates that the attachments were intended to be a part of the
agreements. One of those attachments, Attachment E (identified as a contract with
the Texas Department of Housing and Community Affairs) was not attached to the
Planning Commission’s plea or to Byrdson’s response, so that part of the
agreement is not before us. Therefore, in resolving the issues in the appeal, we
have not considered the language in Attachment E to the contract because it was
not before the trial court. Additionally, none of the parties has claimed that
Attachment E is relevant to resolving the questions that have been presented in the
appeal.
                                           8
Byrdson to provide the Planning Commission with goods or services. With respect

to its argument that it was not a party to the contracts, the Planning Commission

relies on the following provision found in each of the contracts:

      PARTIES TO CONTRACT: The Home Owner and Contractor agree
      that they are the sole parties to this Contract and are solely responsible
      for its performance. The parties agree that the Contract Administrator
      [the Planning Commission] does not assume any liability or
      responsibility whatsoever for the performance of any term of this
      Contract.

      Despite this language, Byrdson contends that the Planning Commission was

a party to the respective contracts. Byrdson points to other language in the

agreements to support its position. For example, Byrdson points to language in the

agreements stating that the

      contract is between: [the Planning Commission] . . . (referred to in
      this Contract as the “Contract Administrator”), and [Byrdson] . . .
      (referred to in this Contract as the “Contractor”) warranting itself to
      be licensed and qualified to perform the work specified herein, and
      [the individual on whose home the repairs were to be performed]
      (referred to in this Contract as the “Home Owner”).

Byrdson also points to provisions in the agreements that allowed the Planning

Commission to select the contractor to repair the homes and to negotiate the

amounts of the respective contracts. And, Byrdson notes that under the agreements,

the contracts were not effective until they were signed by an appropriate executive

from the Planning Commission. Finally, Byrdson points to language in the

contracts indicating that the Planning Commission was obligated to pay for

                                          9
Byrdson’s work when it was completed and approved, language stating that all of

the parties “accept[ed] all above terms, conditions and/or provisions[,]” and the

requirement in the agreements indicating that the agreements required the signature

of the Planning Commission’s executive director to be effective.

      First, we consider whether the trial court properly construed the contracts in

rejecting the Planning Commission’s claim that it was not a party to the

agreements. Although the Planning Commission points to one of the provisions in

the agreements to support its argument, we note that we are required to construe

the individual contract with each homeowner as a whole. See Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983).

      “In construing a written contract, the primary concern of the court is to

ascertain the true intentions of the parties as expressed in the instrument.” Id. “To

achieve this objective, courts should examine and consider the entire writing in an

effort to harmonize and give effect to all the provisions of the contract so that none

will be rendered meaningless.” Id. “If the written instrument is so worded that it

can be given a certain or definite legal meaning or interpretation, then it is not

ambiguous and the court will construe the contract as a matter of law.” Id.

      When the individual contract with each homeowner is construed as a whole,

it is apparent that each contract creates mutual obligations beneficial to the

Planning Commission, to Byrdson, and to the homeowners. The Planning

                                         10
Commission’s executive director signed the agreements on behalf of the Planning

Commission, and his signature indicates the Planning Commission agreed to the

terms of each of the agreements at issue. In construing the “sole parties” provision

in light of the entire agreement, we cannot ignore that other provisions in the

contracts authorized the Planning Commission to monitor Byrdson’s progress and

to issue payments, required that Byrdson provide proof of insurance to the

Planning Commission before performing its work, prevented the assignment of the

work to others without the Planning Commission’s approval, prohibited Byrdson

from changing the scope of the work being done on a home without the Planning

Commission’s written authorization, obligated Byrdson to indemnify the Planning

Commission from the claims of others, and gave the Planning Commission the

right to terminate the contracts if Byrdson failed to properly perform its

obligations.

      After examining the individual agreement with each homeowner as a whole,

we conclude that the contracts create mutual obligations and duties, binding on all

of the parties that signed them. Therefore, we reject the Planning Commission’s

argument that Byrdson and the homeowners were the sole parties to the contracts.

We conclude the trial court properly interpreted the agreements by rejecting the

Planning Commission’s argument that it should look solely to the provision relied



                                        11
on by the Planning Commission in determining whether the Planning Commission

was a party to the agreements.

      Nevertheless, we must avoid rendering the “PARTIES TO CONTRACT”

provision meaningless if possible. See id. With respect to the “PARTIES TO

CONTRACT” provision, we must determine the true intentions of the parties by

examining the parties’ intentions as they are expressed in the written agreement.

See R. & P. Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.

1980); City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518

(Tex. 1968). In giving the provision meaning, we look to the entire language of the

agreement, and we must harmonize the “PARTIES TO CONTRACT” provision

with the other terms in the contract. See Universal C. I. T. Credit Corp. v. Daniel,

243 S.W.2d 154, 158 (Tex. 1951). In harmonizing the meaning of the provision,

we do not consider one of the provisions in the contract in isolation; instead, we

consider each provision relative to the agreement as a whole. See Myers v. Gulf

Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex. 1962); Citizens Nat’l

Bank in Abilene v. Tex. & Pac. Ry. Co., 150 S.W.2d 1003, 1006 (Tex. 1941).

      Under the contracts, private homes damaged in a natural disaster were to be

repaired using public money from a limited public fund. Consequently, the various

contracts subjected the contractors to oversight by the governmental entity that was

tasked with disbursing the funds for the repairs that the contractors agreed in the

                                        12
agreements to perform. To minimize waste, the contracts also required that the

contractors performing work meet standards for quality, as established by the

agreements. Nonetheless, as a practical matter, the goods and services that Byrdson

was to provide under the contracts was to go to the homeowners, as the contracts

did not contemplate that the repairs were to be done on structures owned by the

Planning Commission.

      Other provisions in the contracts also recognized that Byrdson’s work would

be performed on private homes. For example, the “PARTIES TO CONTRACT”

provision states that the homeowner and Byrdson were “solely responsible for [the

contract’s] performance.” And, another provision found in the respective

agreements states that the parties did not intend the contract’s provisions to

constitute a waiver by the Planning Commission of its immunity from suit. These

provisions reinforce our conclusion that the contracts contemplated that Byrdson’s

goods and services were not intended to be provided to the Planning Commission.

      The agreements also make clear that the Planning Commission did not by

signing the agreements obligate itself to complete any of Byrdson’s work, should

Byrdson fail to complete the contracts. For example, the respective contracts

expressly provide that the Planning Commission was not required under the

agreements to repair or complete repairs to the homes. Additionally, the contracts

make it clear that the Planning Commission was not obligated to complete the

                                        13
project or pay for work should the funds for the project be terminated or

withdrawn. After considering the respective contract with each homeowner in its

entirety, we conclude the goods and services called for by the contracts were goods

and services that Byrdson was required to provide to the respective individual

homeowners that signed the agreements and that the goods and services Byrdson

provided were not provided to the Planning Commission.

      Nevertheless, Byrdson contends that even if the repairs that it provided were

not provided to the Planning Commission, it was required by the agreements to

provide other goods and services to the Planning Commission. According to

Byrdson, “any service to the governmental entity, even if that service is not the

primary purpose of the contract,” results in a waiver of the governmental unit’s

immunity from suit “for the entire contract.”

      The other goods and services that Byrdson contends it provided to the

Planning Commission were to qualify and hire subcontractors, to indemnify the

Planning Commission from any potential third-party claims, to warrant its work,

and to provide the Planning Commission with performance bonds for its work

under the respective contracts. In support of its other services argument, Byrdson

relies on a recent opinion of the El Paso Court of Appeals, City of El Paso v. High

Ridge Construction, Inc., 442 S.W.3d 660 (Tex. App.—El Paso 2014, pet. filed).

In High Ridge, the El Paso Court addressed a contract that required a contractor to

                                         14
weatherize private homes in a program funded by the federal government and

administered by the City of El Paso. Id. at 663, 669. After the City refused to pay

for the materials and services provided by the contractor to various homeowners,

the contractor sued. Id. at 664. In its suit against the City, the contractor alleged

that section 271.151 of the Local Government Code waived the City’s immunity

from suit. Id.

      After it was sued, the City of El Paso filed a plea to the jurisdiction, claiming

that it was immune from being sued by the contractor for nonpayment because it

was not the recipient of the weatherization services. Id. at 664-65, 669. After the

trial court denied the City’s plea, the City filed an interlocutory appeal. After

examining whether High Ridge’s claim involved the delivery of goods or services

to the City, the El Paso Court explained that “the weatherization services provided

by High Ridge to private residential properties did not provide a direct benefit to

the City[.]” Id. at 669-70. The El Paso Court concluded that the services that High

Ridge provided were “not the type of service contemplated by Section 271.152.”

Id. at 670.

      However, after rejecting the argument that the weatherization services were

provided to the City, the El Paso Court then examined whether other provisions in

the contract required that High Ridge provide goods or services to the City, even

though those other services had not formed the basis of the claims High Ridge was

                                         15
making in its suit. Id. Looking to the indemnity provision in the contract, the El

Paso Court observed that High Ridge was required to indemnify the City against

claims under the contract if such claims arose “out of High Ridge’s activities under

the contract.” Id. Looking to the warranty provision of the contract, the El Paso

Court noted that High Ridge was required “to provide a one year warranty to the

client and to the City for all weatherization work [that High Ridge] completed.” Id.

Based on the contract’s warranty and indemnity provisions, provisions that were

not the subject of High Ridge’s claimed breach, the El Paso Court concluded: “The

warranty and indemnity provisions certainly operate as a direct benefit to the City.”

Id.

      In this case, Byrdson did not sue the Planning Commission based on claims

that relate to the indemnity and warranty provisions of the contracts. Moreover, we

disagree with Byrdson’s argument that to show a valid waiver, it was not required

to show that the repairs it provided or agreed to provide to the homeowners

directly benefitted the Planning Commission. Warranty and indemnity provisions

in government contracts are common; through such provisions, a governmental

entity attempts to insulate itself, and its taxpayers, from liabilities that might arise

from work done by others. Here, the warranty provisions might operate to insulate

the Planning Commission from liability for warranty claims, should warranty

claims arise in the future. However, nothing in the evidence before the trial court

                                          16
demonstrates that such claims occurred, and Byrdson’s suit does not allege that the

warranty provisions of the contracts were breached.

      The indemnity provisions in the agreements were also not at issue in

Byrdson’s suit; instead, Byrdson sought to be paid for work it performed and for

the profits on the work it would have performed had it been allowed to complete

the work required under the contracts. The indemnity provisions of the agreements

were intended to protect the Planning Commission from claims by third-parties

who might assert claims related to being injured by Byrdson’s work, in the event

such parties were to pursue claims against the Planning Commission. The

indemnity provisions were intended to shift any potential liability the Planning

Commission might have for approving or paying for the work to Byrdson.

Regardless, no pleadings or evidence were before the trial court to show that third-

parties had made claims that triggered the indemnity provisions found in the

agreements.

      We conclude that the evidence before the trial court did not demonstrate that

the warranty and indemnity provisions of the contracts directly benefitted the

Planning Commission. In our opinion, on the record before us, the benefits the

Planning Commission might enjoy from the warranty and indemnity provisions of

the contracts are contingent and indirect. On this record, we hold that Byrdson



                                        17
failed to show that a direct relationship existed between its claims against the

Planning Commission and the indemnity and warranty provisions in the contracts.

      Our conclusion that the Legislature did not intend to waive governmental

immunity under the circumstances in this case finds support in the Code

Construction Act, which we have used in interpreting the scope of section 271.152

of the Local Government Code. See Tex. Loc. Gov’t Code Ann. § 1.002 (West

2008) (making the Code Construction Act applicable to “the construction of each

provision in [the Local Government Code,] except as otherwise expressly provided

by this code”). Under the provisions of the Code Construction Act, “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 (West

2013). Additionally, the Texas Supreme Court has indicated that the waiver in

Chapter 271 is a “limited waiver.” See Tooke, 197 S.W.3d at 329.

      We note that Chapter 271 does not include express language waiving

immunity for the contingent claims, such as future warranty and indemnity claims

that might be made, when such claims do not form the basis of the claims on which

Byrdson sued. Had the Legislature intended section 271.152’s waiver to be

triggered by such contingent claims, and given the language on interpreting the

intended scope of the waiver in the Code Construction Act, we are of the opinion

that section 271.152 would have clearly and unambiguously spelled out that intent.

                                        18
See E. Houston Estate Apts., L.L.C. v. City of Houston, 294 S.W.3d 723, 736 (Tex.

App.—Houston [1st Dist.] 2009, no pet.) (noting that the Legislature could have

used language in Chapter 271 indicating that it intended to waive governmental

immunity for every contract had it chosen to do so).

      In this case, the claims Byrdson asserted against the Planning Commission

were based on the Planning Commission’s failure to pay for services Byrdson

provided to the homeowners and for cancelling Byrdson’s contracts. Under the

contracts, however, the Planning Commission was a conduit of federal funds and a

facilitator for the individual projects; it was not the recipient of the work at issue in

Byrdson’s suit. See id. Because the record before the trial court does not support

the trial court’s conclusion that Byrdson’s suit was based on claims under a

contract that called for Byrdson to provide goods or services to the Planning

Commission, we agree with the Planning Commission that the trial court should

have dismissed it from Byrdson’s suit because it was immune from the claims

asserted in Byrdson’s pleadings. See Tex. Loc. Gov’t Code Ann. § 271.151(2)(A).

      We also find error in the trial court’s resolution of Byrdson’s Prompt Pay

Act claim. See Tex. Gov’t Code Ann. §§ 2251.001-.055. In the brief Byrdson filed

in response to the Planning Commission’s appeal, Byrdson did not advance its

argument that Chapter 2251 operated to waive the Planning Commission’s right to

governmental immunity, and we have held otherwise in another case involving

                                           19
Chapter 2251. See Port Neches-Groves Independent School District v. Pyramid

Constructors, L.L.P., 281 S.W.3d 142, 147 (Tex. App.—Beaumont 2009, pet.

denied). In rejecting the claim that Chapter 2251 waived the school district’s

immunity on similar facts, we held that “Chapter 2251 does not waive

governmental immunity for resolving a disputed payment.” Id. Consistent with our

holding in Pyramid, we conclude that the evidence and pleadings before the trial

court fail to demonstrate that the trial court had jurisdiction over Byrdson’s Prompt

Pay Act claim. Id. We hold the trial court erred in failing to dismiss the Prompt

Pay Act Claim Byrdson filed against the Planning Commission.

                                    Conclusion

      When reversing a trial court’s decision, we are required to render the

judgment the trial court should have rendered. Tex. R. App. P. 43.3. We hold the

trial court did not have jurisdiction over the claims that Byrdson asserted in its

Fourth Amended Petition against the Planning Commission. We reverse the trial

court’s order denying the Planning Commission’s plea, and we render judgment

dismissing the Planning Commission from the case, trial court cause number B-

194,446.

      REVERSED AND ORDER OF DISMISSAL RENDERED.




                                         20
                                                 _________________________
                                                      HOLLIS HORTON
                                                           Justice


Submitted on September 25, 2014
Opinion Delivered January 22, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       21
