             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-19-00330-CV
     ___________________________

 TARRANT COUNTY, TEXAS, Appellant

                     V.

     JEFFREY D. LERNER, Appellee



  On Appeal from the 141st District Court
          Tarrant County, Texas
      Trial Court No. 141-307634-19


 Before Sudderth, C.J.; Gabriel and Kerr, JJ.
 Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Tarrant County, Texas (the County), contends in this accelerated

interlocutory appeal that the specific waiver of immunity from suit for injunctive relief

provided in the County Purchasing Act (CPA) does not extend to provide subject-

matter jurisdiction over appellee Jeffrey D. Lerner’s claim under the Uniform

Declaratory Judgments Act (UDJA) based on the County’s alleged violations of the

CPA. Because the narrow waiver of immunity in the CPA applies only to claims for

injunctive relief and not to UDJA claims, the trial court erred by denying the County’s

plea to the jurisdiction based on the County’s immunity from suit.

                                 I. BACKGROUND

      Since 1983, the County has had a contractual relationship with Dispute

Resolution Services of North Texas (DRS) to manage the County’s alternative-

dispute-resolution services for “citizen disputes.” Although the contract was renewed

annually, sometimes retroactively, Tarrant County did not seek competitive bids for

the management contract, valued at over $400,000 per year.

      For the County’s 2018 fiscal year—October 1, 2017, to September 30, 2018—

the management contract was to expire on September 30, 2018. On August 15, 2018,

appellee Jeffrey Lerner contacted the County and asked for the opportunity to bid for

the management contract for fiscal year 2019. The County informed Lerner on

August 31, 2018, that it intended to renew the contract with DRS. On December 27,

2018, the County’s commissioners court, as part of its consent agenda, approved the
                                           2
management contract with DRS for fiscal year 2019—October 1, 2018, to

September 30, 2019.1

      Four months later, Lerner filed suit against Tarrant County for violating the

CPA based on the County’s failure to comply with the CPA’s competitive-bidding

requirements. See Tex. Loc. Gov’t Code Ann. § 262.023. Lerner pleaded for a

declaration under the UDJA that the fiscal year 2019 management contract between

the County and DRS was void based on the CPA violation, for a temporary and

permanent injunction barring further performance under the noncompliant

management contract under the CPA, and for attorney’s fees under the UDJA. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 37.003(a), .004, .009; Tex. Loc. Gov’t Code

Ann. § 262.033.

      Tarrant County filed a plea to the jurisdiction, arguing that it had governmental

immunity from Lerner’s claims for declaratory relief and for attorney’s fees under the

UDJA, which had not been waived by either the UDJA or the CPA. Tarrant County

conceded that its immunity was waived for purposes of Lerner’s request for injunctive

relief under the express terms of the CPA. See Tex. Loc. Gov’t Code Ann. § 262.033.




      1
       The record suggests that on June 4, 2019, the commissioners court granted
permission for the County to take bids from dispute-resolution providers for the fiscal
year 2020 management contract. At oral argument, counsel for the County
represented that the County has publicly posted a request for proposals. See Tex. Loc.
Gov’t Code Ann. § 262.0295.

                                          3
       On August 22, 2019, the trial court held a nonevidentiary hearing on Lerner’s

temporary-injunction request and Tarrant County’s plea to the jurisdiction and orally

denied both.2      The trial court signed a nonspecific order to that effect on

September 12, 2019—before the expiration of the management contract for fiscal

year 2019. Tarrant County appeals the denial of its plea; Lerner does not appeal the

denial of a temporary injunction.         See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(4), (8).

                                 II. JURISDICTION

       When a political subdivision of the State is immune from suit, a court lacks

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

(per curiam). Governmental immunity will bar UDJA actions against the State and its

political subdivisions absent a clear legislative waiver. Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618, 620 (Tex. 2011) (per curiam). Although the UDJA contains a limited

and inapplicable waiver of immunity for challenges to the validity of an ordinance or

statute, see Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b); Sefzik, 355 S.W.3d at 621,

the UDJA is “not a general waiver of sovereign immunity.” Tex. Parks & Wildlife

       2
        The trial court based its ruling on the fact that once the contract expired,
Lerner’s claims would be moot on September 30, 2019: “I’ll deny your motion to
dismiss for lack of jurisdiction, because I don’t think it matters anyway. You’re never
going to try this thing. It’s going away. So if you want to appeal it, appeal it.” The
record indicates that the trial court denied the temporary injunction because Lerner
had failed to show the requisite harm. In our de novo review, these statements are
not binding. See Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 352–53 (Tex.
App.—Fort Worth 2018, pet. denied) (op. on reh’g).

                                            4
Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011); see also Town of Shady Shores v.

Swanson, No. 18-0413, 2019 WL 6794327, at *6 (Tex. Dec. 13, 2019).                 Thus,

governmental immunity “will bar an otherwise proper [U]DJA claim that has the

effect of establishing a right to relief against the State for which the Legislature has

not waived sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.

      The County argues that the trial court erred by denying the jurisdictional plea

because it was entitled to immunity from Lerner’s UDJA claim and attendant claim

for attorney’s fees,3 which deprived the trial court of subject-matter jurisdiction over

those claims. We review the trial court’s denial de novo as a question of law. Hous.

Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 160 (Tex. 2016); Harris Cty.

Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). In this review, we

construe the pleadings liberally, taking all factual assertions as true and looking to

Lerner’s intent. See Heckman v. Williamson Cty., 369 S.W.3d 137, 149–50 (Tex. 2012).

Lerner bore the burden of alleging facts affirmatively demonstrating that the trial

court had subject-matter jurisdiction over his UDJA-based claims—facts constituting

a claim for which the County’s governmental immunity from suit had been waived.

See Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty., 449 S.W.3d 98, 110 (Tex.

2014); Heckman, 369 S.W.3d at 149–50; Schmitz, 550 S.W.3d at 351.



      3
        We will refer to Lerner’s claim for declaratory relief and request for attorney’s
fees authorized under the UDJA as the “UDJA-based claims.”

                                           5
       Lerner contends that the CPA waives the County’s immunity for purposes of

his UDJA-based claims as well as for his claim for injunctive relief. It is solely within

the province of the Legislature to consent to a suit against a governmental entity. See

Ben Bolt-Palito Blanco Consol. ISD v. Tex. Political Prop./Cas. Jt. Self-Ins. Fund, 212 S.W.3d

320, 326 (Tex. 2006); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854

(Tex. 2002).    Such a waiver is effectuated only through clear and unambiguous

language. Tex. Gov’t Code Ann. § 311.034; Swanson, 2019 WL 6794327, at *7; Tooke v.

City of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006).

       The immunity waiver contained in the CPA is specific and narrowly drawn:

“Any property tax paying citizen of the county may enjoin performance under a

contract made by a county in violation of [the CPA].” Tex. Loc. Gov’t Code Ann.

§ 262.033. Clearly, the Legislature intended to waive immunity for injunctive-relief

claims arising from CPA violations, but that is the only waiver in the CPA. The

unambiguous language of this statutory waiver does not include requests for

attorney’s fees or for declaratory relief. See City of New Braunfels v. Carowest Land, Ltd.,

549 S.W.3d 163, 171–72 (Tex. App.—Austin 2017, pet. denied) (holding specific

immunity waiver for injunctive relief in Municipality Purchasing Act did not waive

city’s immunity from UDJA claims), discussed with approval in Swanson, 2019 WL

6794327, at *7–8.

       Accordingly, we cannot conclude that the specific waiver in the CPA applicable

only to claims for injunctive relief also waives immunity as to Lerner’s UDJA-based
                                              6
claims. To do so would be to ignore or impermissibly expand the express and

unambiguous language chosen by the Legislature in the CPA. See, e.g., Swanson,

2019 WL 6794327, at *7 (“[W]hile the Legislature has expressly authorized a suit for

declaratory judgment against the government in other statutes, it has not done so in

the Open Meetings Act[;] [t]hus, the Open Meetings Act’s clear and unambiguous

waiver of immunity does not extend to suits for declaratory relief.”); Zachry Constr.,

449 S.W.3d at 108–10 (holding in case involving Local Government Contract Claims

Act’s provision of authorized recoverable damages operates to “define the scope” of

immunity waiver); Carowest Land, 549 S.W.3d at 172–73 (concluding language in

Municipality Purchasing Act “set the boundaries” of its waiver of immunity as the

express relief provided and did not extend waiver to include UDJA relief). The cases

and the attorney general opinion cited by Lerner4 in support of his argument that

immunity is waived for his UDJA-based claims are not controlling: The cited

authorities were decided before the supreme court unequivocally repudiated the

notion that the UDJA is a general waiver of immunity5 and did not specifically

examine whether the CPA waives immunity for declaratory relief.               See Swanson,

2019 WL 6794327, at *7–8.


       4
        Labrado v. Cty. of El Paso, 132 S.W.3d 581, 593 (Tex. App.—El Paso 2004, no
pet.); Securtec, Inc. v. Cty. of Gregg, 106 S.W.3d 803, 816 (Tex. App.—Texarkana 2003,
no pet.); Tex. Att’y Gen Op. No. GA-0247 (2004).
       5
        See, e.g., Sefzik, 355 S.W.3d at 621; Sawyer Tr., 354 S.W.3d at 388; City of El Paso
v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009).
                                             7
       We conclude that Lerner failed to plead a UDJA claim over which the trial

court had jurisdiction; thus, the trial court erred by denying the County’s plea to the

jurisdiction directed to Lerner’s UDJA-based claims arising from alleged CPA

violations. We sustain the County’s first issue.

                                 III. CONCLUSION

       The CPA’s limited waiver of immunity does not extend to Lerner’s UDJA-

based claims. Based on this conclusion, we need not address the County’s alternative

argument in its second issue that if sovereign immunity does not bar Lerner’s UDJA-

based claims, the redundant-remedies doctrine does. See Tex. R. App. P. 47.1. We

also need not determine whether Lerner’s injunctive-relief claim is now moot based

on the expiration of the fiscal year 2019 contract after the trial court’s denial of a

temporary injunction. Not only is the record insufficient for us to make such a

determination in light of the mootness exceptions asserted by Lerner, but the County

did not seek the dismissal of Lerner’s request for a permanent injunction in its plea to

the jurisdiction.6 Accordingly, the injunctive-relief claim is not at issue in this appeal.

We reverse that portion of the trial court’s September 12, 2019 order denying the

County’s plea to the jurisdiction and remand to that court for entry of an order

granting the plea and for further, consistent proceedings. See Tex. R. App. P. 43.2(d),

43.3(a).


       6
        Again, Lerner did not appeal the denial of his request for a temporary
injunction.
                                            8
                                 /s/ Lee Gabriel

                                 Lee Gabriel
                                 Justice

Delivered: January 9, 2020




                             9
