                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS

                                                            §
    CHRISTOPHER L. GAY AND
    STEVEN L. CARROLL,                                      §                   No. 08-13-00028-CV

                              Appellants,                   §                        Appeal from

    v.                                                      §                    30th District Court

    THE CITY OF WICHITA FALLS,                              §                of Wichita County, Texas
    TEXAS,
                                                            §                     (TC # 177,392A)
                              Appellee.
                                                            §


                                                    OPINION

         Christopher L. Gay and Steven L. Carroll challenge the trial court’s order granting the

City of Wichita Falls’ plea to the jurisdiction based on governmental immunity. The underlying

controversy arises from the denial of Gay’s and Carroll’s claims for long-term disability benefits

under insurance provided to them by their former employer, the City of Wichita Falls. Because

we conclude that the City is immune from suit, we affirm the trial court’s order.1


1
  This appeal proceeded on an unaccelerated basis until June 7, 2013, when the City, in a motion seeking a briefing
extension, first asserted that it was accelerated pursuant to Section 51.014 of the Texas Civil Practice and Remedies
Code. In its brief, the City contends that Gay and Carroll’s notice of appeal, filed thirty days after the trial court
granted the City’s plea to the jurisdiction, was untimely pursuant to TEX.R.APP.P. 26.1(b)(requiring notice in an
accelerated appeal to be filed within twenty days after judgment or order signed). The City contends that any order
granting or denying a governmental unit’s plea to the jurisdiction is interlocutory pursuant to Section 51.014(a)(8).
See TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(8)(West Supp. 2013). We disagree. The grant or denial of a
governmental plea is interlocutory only if it fails to dispose of all claims or parties before the trial court. Id.; Fox v.
Wardy, 318 S.W.3d 449, 452 (Tex.App.--El Paso 2010, pet. denied). The trial court’s order disposed of all parties
                          FACTUAL AND PROCEDURAL BACKGROUND

         Prior to their retirement in 2011, Gay and Carroll were police officers for the Wichita

Falls Police Department. Before the officers retired, the City of Wichita Falls sought and

obtained group long-term disability insurance for its employees through a private insurer, Sun

Life Assurance Company of Canada. More specifically, a trust organized by the City, the “City

of Wichita Falls Employee Benefits Trust,” obtained the group insurance. The insurance policy,

which the City stipulates is contractual in nature, is between the trust and Sun Life. The City is

not a party to the contract and the trust is not a party to this action.

         Once the trust obtained the insurance, the City paid the monthly premiums for its

employees, including Officers Gay and Carroll. The officers’ coverage began on January 1,

2011, shortly before they retired. After their retirement, both officers filed claims seeking

disability benefits. Sun Life informed the officers that because their claims were filed less than

twelve months after coverage began, they would be subjected to a pre-existing condition review.

Ultimately, Sun Life denied their claims. The officers filed suit against the City of Wichita Falls

on August 1, 2012, alleging breach of contract, promissory estoppel, negligent misrepresentation




and claims and was thus final. The cases relied upon by the City involved orders leaving parties or issues
remaining in the trial court, and are thus inapposite. Denton County v. Huther, 43 S.W.3d 665, 666 (Tex.App.--Fort
Worth 2001, no pet.); Allen v. Havens, No. 2-05-318-CV, 2007 WL 805477, at *2 (Tex.App.--Fort Worth 2007, no
pet.)(mem. op.); and Payne, et al v. City of Frisco, No. 02-13-00264-CV, 2013 WL 5303584, at *1 (Tex.App.--Fort
Worth 2013, no pet.)(mem. op.). In a supplemental letter of authorities filed on January 8, 2014, the City urges that
the Fort Worth court’s citation in Payne of a Corpus Christi case, Vallejo v. Cameron Cnty., supports its argument.
See Payne, 2013 WL 5303584, at *1, citing Vallejo v. Cameron Cnty., No. 13-13-00181-CV, 2013 WL 2367992, at
*1 (Tex.App.--Corpus Christi May 30, 2013, no pet.)(mem. op.). Although parties in Payne clearly remained
before the trial court, the City asserts that Vallejo involved a “dismissal of all claims by all parties.” We reject this
argument. First, even if the City is correct about the procedural state of Vallejo, Paynes’ citation of Vallejo does
not establish that it is the precedent of the Fort Worth Court of Appeals to treat all orders granting or denying a
governmental plea to the jurisdiction as interlocutory, regardless of remaining parties or issues. See id. Further, it
is not clear that Vallejo indeed stemmed from an order dismissing all claims and parties. While the Vallejo opinion
notes that the trial court “dismissed the cause,” it does not elaborate about the state of all parties or issues before the
trial court. Vallejo, 2013 WL 2367992, at *1. Additionally, the appellant in Vallejo failed to respond to the
appellate court’s notice that the appeal “appeared” to be interlocutory and thus untimely filed. Id.

                                                             2
and fraud. The pleading does not specifically identify the agreement or agreements that are the

subject of these causes of action, other than to allege generally that:

         Plaintiffs were promised and informed by City of Wichita Falls employees and/or
         agents that they both would received [sic] long term disability benefits for life.
         The Plaintiffs were promised and informed by City of Wichita Falls employees
         and/or agents that the City will take care of the Plaintiffs.

The City responded with a plea to the jurisdiction asserting governmental immunity.                                    It

produced evidence that it does not administer the insurance policy at issue, does not make any

decisions concerning coverage, and has no discretion as to how benefits are administered by Sun

Life. The City also introduced evidence that neither it nor any of its employees made any

decisions regarding the officers’ disability claims, coverage eligibility, or entitlement to benefits.

On November 5, 2012, the trial court granted the City’s plea to the jurisdiction and dismissed

the suit with prejudice. This appeal follows. We perceive the officers’ brief to present a single

issue for review concerning the trial court’s error in granting the plea. We will address it by

subparts relating to specific claims alleged.

                                          STANDARD OF REVIEW

         Governmental immunity protects municipalities like the City of Wichita Falls from

lawsuits for damages and from liability.2 Ben Bolt-Palito Blanco Consolidated Independent

School District v. Texas Political Subdivisions Property/Casualty Joint Self-Insurance Fund,

212 S.W.3d 320, 323-24 (Tex. 2006). Municipalities have governmental immunity from suit

unless the Legislature has expressly waived immunity by statute. City of Houston v. Williams,

353 S.W.3d 128, 134 (Tex. 2011). It is the Legislature’s sole province to waive or abrogate

governmental immunity. Texas Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 353

2
   Sovereign immunity, as distinguished from governmental immunity, protects the State of Texas and its agencies
and officials from lawsuits and liability. Ben Bolt, 212 S.W.3d at 324. Governmental immunity refers to the
protection afforded to political subdivisions such as counties, cities, school districts, and others. Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

                                                            3
(Tex. 2013), quoting Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d 653, 660

(Tex. 2008) and Texas Nat’l Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002). There is a “heavy presumption” in favor of immunity. City of Galveston v. State, 217

S.W.3d 466, 469 (Tex. 2007).

       Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and

thus is properly asserted in a plea to the jurisdiction. Texas Dept. of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). To invoke a trial court’s jurisdiction, a plaintiff

suing a municipality must allege a valid waiver of governmental immunity and plead sufficient

facts demonstrating jurisdiction. Id. at 226. In reviewing a ruling on a plea to the jurisdiction,

we do not consider the merits of the cause of action, but examine only the plaintiff’s pleadings

and any evidence relevant to the jurisdictional inquiry. Id. at 227; County of Cameron v. Brown,

80 S.W.3d 549, 555 (Tex. 2002). Pleadings must be construed liberally in the plaintiffs’ favor.

Miranda, 133 S.W.3d at 227. The existence of subject matter jurisdiction is a question of law

that we review de novo. IT-Davy, 74 S.W.3d at 855. If the suit is barred by governmental

immunity, dismissal with prejudice is mandatory. Harris County v. Sykes, 136 S.W.3d 635, 637

(Tex. 2004).

               BREACH OF CONTRACT AND PROMISSORY ESTOPPEL

       The officers contend that the City is not immune from their contract and promissory

estoppel claims because it provided insurance to its employees, which the officers contend was a

proprietary rather than governmental act. The common law distinction between proprietary and

governmental acts (sometimes referred to as the proprietary/governmental “dichotomy”) arose

almost 130 years ago. City of Galveston v. Posnainsky, 62 Tex. 118 (1884). Under the

dichotomy, governmental immunity exists when a municipality exercises powers “as the agent


                                                4
of the State in furtherance of general law for the interest of the public at large.” Gates v. City of

Dallas, 704 S.W.2d 737, 738-39 (Tex. 1986). Conversely, when a municipality acts at its own

discretion and primarily for the benefit of those within its corporate limits, it performs a

proprietary function and has no immunity. Id. In 1987, the Texas Constitution was amended to

give the Legislature authority to define governmental and proprietary functions, including the

authority to reclassify definitions already existing in the common law. TEX.CONST. art. XI, §

13. The Legislature utilized this authority when it enacted Section 101.0215 of the Texas Civil

Practice and Remedies Code. TEX.CIV.PRAC.&REM.CODE ANN. § 101.0215 (West Supp. 2013)

(defining several governmental and proprietary functions for purposes of the Texas Tort Claims

Act).

        In 2005, the Legislature enacted Section 271.152 of the Local Government Code, which

unambiguously waives immunity for certain contractual claims against qualifying governmental

entities. TEX.LOC.GOV’T CODE ANN. § 271.152 (West 2005). For this limited waiver to apply,

three elements must be established: (1) the party against whom waiver is asserted must be a

“local governmental entity,” (2) authorized to enter into contracts, and (3) the entity must have

in fact entered into a “contract subject to this subchapter.” Williams, 353 S.W.3d at 134;

TEX.LOC.GOV’T CODE ANN. § 271.152. To qualify as a “contract subject to this subchapter,”

the contract must satisfy five additional elements: (1) it must be in writing, (2) state the essential

terms of the agreement, (3) provide for goods or services, (4) to the local governmental entity,

and (5) be executed on behalf of the local governmental entity. Id. at 135; TEX.LOC.GOV’T

CODE ANN. § 271.151 (West Supp. 2013).

        The issue presented in this appeal is whether the City’s entitlement to immunity is

determinable    under    Section    271.152     of       the   Local   Government   Code     or   the


                                                     5
proprietary/governmental dichotomy. In support of their argument that the dichotomy controls,

the officers rely on a line of cases holding that a city’s provision of insurance to employees is a

proprietary function, thereby subjecting the city to suit on contractual claims. Gates, 704

S.W.2d at 739; Temple v. City of Houston, 189 S.W.3d 816, 819 (Tex.App.--Houston [1st Dist.]

2006, no pet.); Bailey v. City of Austin, 972 S. W.2d 180, 192 (Tex. App.--Austin 1998, pet.

denied); Casso v. City of McAllen, No. 13-08-00618-CV, 2009 WL 781863, at *5-7 (Tex.App.--

Corpus Christi Mar. 26, 2009, pet. denied)(mem. op.). According to the officers, these cases

establish that the City does not have immunity in the first instance such that there is no

immunity to be waived.        The City counters that the absence of any mention of the

proprietary/governmental dichotomy in Chapter 271 means the Legislature decided to abandon

application of the dichotomy to contract-based claims.

       Our sister courts in San Antonio and Austin have recently addressed the continuing

applicability of the dichotomy following the enactment of Chapter 271 and reached opposite

conclusions. See City of San Antonio ex rel. City Public Service Board v. Wheelabrator Air

Pollution Control, Inc., 381 S.W.3d 597, 603-05 (Tex.App.--San Antonio 2012, pet. denied);

and City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803, 811 (Tex.App.--

Austin 2013, pet. dism’d). In Wheelabrator, the San Antonio court analyzed the issue in the

context of a quasi-contractual quantum meruit claim asserted against a city in relation to its

operation of a public utility. Wheelabrator, 381 S.W.3d at 599. The city hired the plaintiff,

Wheelabrator, to design and build emission control equipment at a coal-fired power station, but

thereafter refused to release retained funds. Id. In response to Wheelabrator’s suit, the city

asserted that it was immune from quasi-contractual claims pursuant to Chapter 271. Id. at 600.

Wheelabrator argued that operating the utility was a proprietary act, and thus, that the city had



                                                 6
no immunity in the first instance. Id. at 603. The San Antonio court rejected Wheelabrator’s

argument, holding that the proprietary/governmental dichotomy is not applicable to claims

sounding in contract. Id. at 603-06. Unlike the Texas Tort Claims Act, which specifically

incorporates the dichotomy into its framework, Chapter 271 does not. See TEX.LOC.GOV’T

CODE ANN. §§ 271.151-271.160 (West 2005 & West Supp. 2013). The court observed that the

Legislature “easily could have included the proprietary/governmental dichotomy it used in the

tort-claims context in the contract-claims scheme, but chose not to do so.” Wheelabrator, 381

S.W.3d at 605. Courts must defer to the Legislature to waive immunity from contract claims so

as to protect the Legislature’s policy-making function. Tooke v. City of Mexia, 197 S.W.3d 325,

332 (Tex. 2006).

       In City of Georgetown v. Lower Colorado River Authority, a divided panel of the Austin

Court of Appeals considered an identical argument in relation to a contract to sell electricity to a

city acting as a municipal utility. City of Georgetown, 413 S.W.3d at 803. The majority

analyzed the history of the proprietary/governmental dichotomy and concluded that there was no

principled reason why the dichotomy should apply to tort claims but not contract claims under

the common law. Id. at 811. “Without such a principled reason,” the court explained, it was

“reluctant to overturn our own precedent or disagree with persuasive authority from the majority

of our sister courts on the issue.” Id. at 811. The court took Chapter 271’s silence regarding the

dichotomy to mean that the Legislature may not have intended to abandon it: “Given that

chapter 271 does not mention the proprietary-governmental dichotomy in any respect, there is

no plain statutory text from which we can determine whether the legislature intended to abandon

the dichotomy for contract claims.” Id. at 812. This is where we differ with the Austin court’s

approach.   It is the Legislature’s sole province to waive immunity, and absent “clear and



                                                 7
unambiguous” statutory language, courts are to assume that it has not done so. TEX.GOV’T

CODE ANN. § 311.034 (West 2013); Williams, 353 S.W.3d at 134.

        We do not consider the cases cited in City of Georgetown to be persuasive in light of the

fact that they predate both Section 271.152 and the Supreme Court’s opinion in Tooke v. City of

Mexia.3 See Tooke, 197 S.W.3d at 325. Although some of these cases acknowledged that the

proprietary/governmental dichotomy was originally a tort doctrine, they “mostly assumed,

without explanation,” that the dichotomy was equally applicable to contractual claims. City of

Georgetown, 2013 WL 4516110, at *5. We believe that this assumption must be reexamined in

light of Tooke and Section 271.152.4

        The Supreme Court clarified in Tooke that it has never held the proprietary/governmental

dichotomy to be determinative of immunity from suit in contractual claims. Tooke, 197 S.W.3d

at 343.     As both the City of Georgetown and Wheelabrator opinions acknowledge, this

pronouncement, at a minimum, calls Gates into doubt. See Gates, 704 S.W.2d at 739 (noting

that, “[c]ontracts made by municipal corporations in their proprietary capacity have been held to

be governed by the same rules as contracts between individuals”); see also Wheelabrator, 381

S.W.3d at 604, and City of Georgetown, 413 S.W.3d at 810.

3
   See City of Georgetown, 413 S.W.3d at 810 n.4, citing Temple v. City of Houston, 189 S.W.3d 816, 819-20
(Tex.App.--Houston [1st Dist.] 2006, no pet.); City of Roman Forest v. Stockman, 141 S.W.3d 805, 811 (Tex.App.--
Beaumont 2004, no pet.); City of Mexia v. Tooke, 115 S.W.3d 618, 624-25 (Tex.App.--Waco 2003), aff’d, 197
S.W.3d 325, 347 (Tex. 2006); Williams v. City of Midland, 932 S.W.2d 679, 683-84 (Tex.App.--El Paso 1996, no
writ); City of Houston v. Southwest Concrete Constr., Inc., 835 S.W.2d 728, 732-33 (Tex.App.--Houston [14th
Dist.] 1992, writ denied); City of Dallas v. Moreau, 718 S.W.2d 776, 779-80 (Tex.App.--Corpus Christi 1986, writ
ref’d n.r.e.); International Bank of Commerce of Laredo v. Union Nat. Bank of Laredo, 653 S.W.2d 539, 546
(Tex.App.--San Antonio 1983, writ ref’d n.r.e.); Blythe v. City of Graham, 287 S.W.2d 527, 530 (Tex.App.--Fort
Worth 1956, writ ref’d n.r.e.); Boiles v. City of Abilene, 276 S.W.2d 922, 925 (Tex.App.--Eastland 1955, writ ref’d);
City of Crosbyton v. Texas-New Mexico Util. Co., 157 S.W.2d 418, 420-21 (Tex.App.--Amarillo 1941, writ ref’d
w.o.m.); and Texas One P’ship v. City of Dallas, No. 05-92-01097-CV, 1993 WL 11621, at *3 (Tex.App.--Dallas
Jan. 15, 1993, writ denied)(not designated for publication). While Temple did not predate the enactment of
Section 271.152, the case does not consider the proprietary/governmental dichotomy in light of Section 271.152.
See Temple, 189 S.W.3d at 819-20.
4
  Cases relied upon by Gay and Carroll likewise predate Tooke and/or Section 271.152. See Temple, 189 S.W.3d at
819; Bailey, 972 S.W.2d at 192.

                                                         8
          While Tooke did not detail the reasons for its dissociation from Gates, it is now certain

that our Supreme Court has not endorsed application of the proprietary/governmental dichotomy

as the first step in determining a municipality’s entitlement to immunity from contract-based

claims.     This comports with the court’s instruction that “the distinction between waiving

immunity and finding it nonexistent is a fine one that yields the same effect and, ‘[d]ue to the

risk that the latter could become a ruse for avoiding the Legislature, courts should be very

hesitant to declare immunity nonexistent in any particular case.’”         Nueces County v. San

Patricio County, 246 S.W.3d 651, 652 (Tex. 2008), quoting City of Galveston, 217 S.W.3d at

471. “We can avoid basing today’s decision on our personal inferences only by adhering to the

traditional rule that requires unambiguous legislation before setting immunity aside.” City of

Galveston, 217 S.W.3d at 474.

          We recognize that cases decided after Tooke have entertained arguments for application

of the proprietary/governmental dichotomy in contract-based suits, but these opinions did not

squarely address the issue inasmuch as they determined that the municipality was engaged

in a governmental function. See, e.g., City of San Antonio v. Reed S. Lehman Grain, Ltd., No.

04-04-00930-CV, 2007 WL 752197, at *3 (Tex.App.--San Antonio Mar. 14, 2007, pet.

denied); East Houston Estate Apartments, L.L.C. v. City of Houston, 294 S.W.3d 723, 731-32

(Tex.App.--Houston [1st Dist.] 2009, no pet.); City of Emory v. Lusk, 278 S.W.3d 77, 83

(Tex.App.--Tyler 2009, no pet.); City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350,

355-56 (Tex.App.--Houston [14th Dist.] 2008, no pet.); City of Weslaco v. Borne, 210 S.W.3d

782, 790-93 (Tex.App.--Corpus Christi 2006, pet. denied). The only post-Tooke case that has

applied the dichotomy to waive governmental immunity in a contract-based suit is Casso. See

Casso, 2009 WL 781863, at *4-7. Nonetheless, Casso does not consider Section 271.152, and it



                                                  9
does not analyze Tooke in terms of its impact on Gates. See id.

       Thus, we find ourselves in agreement with Wheelabrator. If the Legislature intended to

have the proprietary/governmental dichotomy continue to be the first step in determining a

municipality’s entitlement to immunity from suit, thereby destroying immunity in the context of

proprietary functions, it could have incorporated the dichotomy into Chapter 271. Because it did

not, we presume that the Legislature did not intend to eradicate governmental immunity from

suit for contract-based claims stemming from proprietary acts. Wheelabrator, 381 S.W.3d at

599. “[T]his Court presumes the Legislature deliberately and purposefully selects words and

phrases it enacts, as well as deliberately and purposefully omits words and phrases it does not

enact.” Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430, 451 (Tex. 2012), citing Tex.

Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Having

determined that the dichotomy does not apply, we do not reach the issue of whether the City of

Wichita Falls acted in a proprietary or governmental capacity by providing insurance to its

employees.

       The officers’ quasi-contractual promissory estoppel claim, based upon oral

representations and promises made by the City’s agents and/or employees, falls outside of the

limited scope of waiver contained in Section 271.152 of the Local Government Code.

TEX.LOC.GOV’T CODE ANN. § 271.152.          The waiver applies only to a “written contract.”

TEX.LOC.GOV’T CODE ANN. § 271.151. Because an implied contract is not a written contract,

the City is immune from the promissory estoppel claim. Somerset Independent School District

v. Casias, No. 04-07-00829-CV, 2008 WL 1805533, at *3 (Tex.App.--San Antonio Apr. 23,

2008, pet. denied)(mem. op.). We must now determine what constitutes the written contract that

forms the basis of the breach of contract claim. The officers do not tell us. Their brief makes


                                               10
reference to a 2011 pamphlet entitled, “Employee Benefits Summary,” which Gay and Carroll

refer to alternately as the City’s “contract with Sun Life” and the “benefits policy.” This

document specifies, however, that it is not a contract: “This is a brief summary and not intended

to be a contract.” It also states that while it is intended to “highlight or summarize” certain

aspects of the disability insurance provided by the City, it is not “an official plan document,”

and it explains that the employees’ “rights and obligations under the program(s) are set forth in

the official plan documents.” To the extent that Gay and Carroll rely on the actual insurance

policy (although neither their pleadings nor their brief takes that position), immunity is

nonetheless preserved.

       As we have already noted, the trust organized by the City obtained the group insurance.

The policy is between the trust and Sun Life. The City is not a party to it. Consequently, the

City did not “enter into a contract” subject to Subchapter I of Chapter 271 of the Local

Government Code. TEX.LOC.GOV’T CODE ANN. § 271.152. The officers do not allege that the

City can be subjected to suit on a contract to which only the trust is a party. The City is thus

immune from the breach of contract claim.

                           NEGLIGENT MISREPRESENTATION

       With regard to their negligent misrepresentation claim, the officers complain that the

City “represented and promised to [the officers] that they both would receive long term

disability benefits. . . . [The officers] justifiably relied on [the City’s] representation when

[they] made financial decisions to retire and plan for their financial future.” More detail

regarding this matter is provided elsewhere in the petition:


       [The officers] became medically disabled during their employment with the City
       of Wichita Falls. During the period in which [the officers] were making their
       decisions to take early retirement, [the City] promised and represented to [them]

                                                11
       that they would receive upon retirement disability benefits from the City of
       Wichita Falls for life.

       To establish a cause of action for negligent misrepresentation, a plaintiff must

demonstrate, among other things, that the defendant supplied “false information” for the

guidance of others in their business. Airborne Freight Corp. v. C.R. Lee Enter., Inc., 847

S.W.2d 289, 295 (Tex.App.--El Paso 1992, writ denied). “Significantly, the sort of ‘false

information’ contemplated in a negligent misrepresentation case is a misstatement of existing

fact,” as opposed to false information about a “promise of future conduct.” [Emphasis in

original]. Id. at 295, 298. When a negligent misrepresentation claim is based upon allegedly

false information about a future promise rather than an existing fact, the claim sounds not in tort,

but in contract. See id.; see also Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 674-75

(Tex.App.--Houston [1st. Dist.] 1996, no writ).

       Through reference to the pleadings alone, it is clear that the negligent misrepresentation

claim is duplicative of the contract-based claims. The claim sounds in contract, not tort. The

officers have not identified a waiver of immunity and the City is entitled to immunity.

                                             FRAUD

       The officers also advance common law fraud and fraud by nondisclosure claims. These

claims, like their negligent misrepresentation claim, are premised on the breach of a future

promise rather than the misrepresentation or nondisclosure of an existing fact. A fraud claim is

duplicative of a breach of contract claim “[i]f the defendant’s conduct would give rise to liability

only because it breaches the parties’ agreement.”           Farah, 927 S.W.2d at 674, citing

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). We look to the

substance of the cause of action rather than the manner in which it was pleaded. Jim Walter

Homes, Inc. v. Reed, 711 S.W.2d 617, 617 (Tex. 1986). Regardless of which cause of action is

                                                  12
considered, the claims center exclusively on the City’s promise of long term disability benefits

and the subsequent denial of those benefits. As such, the claims fall under the purview of

Sections 271.152 of the Local Government Code.            But Section 271.157 specifies that

Subchapter I of Chapter 271 does not waive immunity for negligent or intentional torts.

TEX.LOC.GOV’T CODE ANN. § 271.157.

        Because the Legislature’s limited waiver of governmental immunity from suit in Chapter

271 does not waive the City’s immunity for the officers’ claims, and because the proprietary-

governmental distinction does not apply in the context of contract-based claims, the City is

immune from suit. We overrule the sole point and affirm the trial court’s order granting the

City’s plea to the jurisdiction.


August 13, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




                                               13
