                                          NO. 12-18-00108-CV

                                IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                              TYLER, TEXAS

 PAUL A. ROBBINS AND THE LAW                                §        APPEAL FROM THE 145TH
 OFFICE OF PAUL A. ROBBINS,
 APPELLANTS

 V.                                                         §        JUDICIAL DISTRICT COURT

 NICOLE D. LOSTRACCO, IN HER
 OFFICIAL CAPACITY AS DISTRICT
 ATTORNEY FOR NACOGDOCHES                                   §        NACOGDOCHES COUNTY, TEXAS
 COUNTY,
 APPELLEE

                                          MEMORANDUM OPINION
         Paul A. Robbins and The Law Office of Paul A. Robbins appeals the trial court’s judgment
granting Nacogdoches County’s plea to the jurisdiction.1 Robbins raises three appellate issues for
our consideration. We modify and affirm.


                                                   BACKGROUND
         The Nacogdoches County District Attorney’s Office (NCDA) and the Nacogdoches County
Sheriff’s Office (NCSO) have an interlocal agreement governing seized and forfeited property or
proceeds from the seizure and forfeiture of property under Chapter 59 of the Texas Code of Criminal
Procedure. Pursuant to the agreement, the NCDA receives fifty percent of all seized property and
proceeds from contested forfeiture cases.




          1
            Robbins sued Lostracco in her official capacity as the elected District Attorney of Nacogdoches County,
Texas. A suit against a government official in her official capacity seeks to impose liability only upon the governmental
entity the official represents, and any judgment in this type of suit is collectible only against the governmental entity,
which in this case is Nacogdoches County. See, e.g., Morris v. Copeland, 944 S.W.2d 696, 698 (Tex. App.—Corpus
Christi 1997, no writ).
        In September 2014, Nicole D. Lostracco, the elected District Attorney, hired Robbins, a
licensed attorney, to prosecute civil forfeiture cases on a contingency fee basis.                         Lostracco
memorialized the terms of the contract in an email, which stated that Robbins would receive (1) one
hundred percent of the NCDA’s fifty percent if the amount forfeited was valued under $5,000; (2)
two thirds of the NCDA’s fifty percent if the amount forfeited was more than $5,000 but less than
$10,000; and (3) fifty percent of the NCDA’s fifty percent if the amount forfeited was more than
$10,000. Thereafter, Robbins was sworn in as a special district attorney and began prosecuting
forfeiture cases. At the conclusion of each case, Robbins submitted an invoice and was paid in
accordance with the contract.
        In late 2015, the NCSO seized approximately $1,150,650 after an investigation.                              In
accordance with the contract, Robbins successfully prosecuted the forfeiture. Thereafter, Lostracco
and Jason Bridges, the Nacogdoches County Sheriff, met with Robbins and informed him they could
not pay his fee for the forfeiture because doing so would cause unfavorable publicity. After the
meeting, the parties agreed to postpone discussion on the dispute until after the primary election on
March 1, 2016. On March 2, 2016, Robbins submitted an invoice for $287,662.50 for his work on
the seizure. The Nacogdoches County Commissioner’s Court refused to pay the invoice, and in May
2017, Robbins sued Lostracco, in her official capacity as District Attorney, for breach of contract.2
        In June 2017, the County filed a plea to the jurisdiction claiming governmental immunity
from Robbins’ claims, and maintaining that its immunity has not been waived. In September,
Robbins requested jurisdictional discovery, which the trial court limited to requests for admissions.
Robbins requested expanded jurisdictional discovery, but in January 2018, the trial court granted the
County’s plea to the jurisdiction and dismissed Robbin’s suit with prejudice. This appeal followed.


                                          PLEA TO THE JURISDICTION
        In Robbins’s first issue, he argues that the trial court erred in granting the County’s plea to
the jurisdiction. Robbins argues that Lostracco’s egregious conduct waived the County’s immunity.
Standard of Review and Applicable Law
        A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. City of Waco v.
Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). When reviewing whether a plea to the jurisdiction was


        2
         Robbins initially asserted fraud, negligence, negligent misrepresentation, gross negligence, and declaratory
judgment claims, but later amended his pleadings to allege only claims for breach of contract and equitable alternative
claims.


                                                          2
properly granted, we first look to the pleadings to determine if jurisdiction is proper, construing them
liberally in favor of the plaintiff and looking to the pleader’s intent. Id. If the pleadings neither
affirmatively demonstrate nor negate jurisdiction, the plaintiff should be given an opportunity to
amend the pleadings. Id. at 622. If a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, even when those facts may implicate the merits of the cause of action.
Id. (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). If the
evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to decide and the plea
should be denied. See Kirwan, 298 S.W.3d at 622. However, if the relevant evidence is undisputed
or fails to raise a fact question on jurisdiction, the trial court rules on the plea to the jurisdiction as a
matter of law. Id. In considering this evidence, we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.
Id.
        The doctrine of sovereign immunity provides that “no state can be sued in her own courts
without her consent, and then only in the manner indicated by that consent.” Tooke v. City of Mexia,
197 S.W.3d 325, 331 (Tex. 2006). Governmental immunity operates like sovereign immunity to
afford similar protection to subdivisions of the State, including counties, cities, and school districts.
Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). That same immunity extends to persons
sued in their official capacities as employees of the governmental unit, because a suit against a
government official in her official capacity is just another way of pleading a suit against a
governmental entity of which the official is an agent. See City of Hempstead v. Kmiec, 902 S.W.2d
118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ). “Simply described, sovereign immunity
generally shields our state government’s ‘improvident acts’—however improvident, harsh, unjust,
or infuriatingly boneheaded these acts may seem—against the litigation and judicial remedies that
would be available if the same acts were committed by private persons.” Bacon v. Tex. Historical
Comm’n, 411 S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.) (citing Tooke, 197 S.W.3d at
331–32).
        When a governmental unit contracts with a private citizen, it retains its immunity from suit
even though it waives immunity from liability. See Tooke, 197 S.W.3d at 332. Thus, in order to
bring suit against a governmental entity for breach of contract, a plaintiff must establish legislative
consent to sue by bringing suit pursuant to a special statute or by obtaining a legislative resolution.



                                                     3
Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). Otherwise,
governmental immunity from suit defeats a trial court’s subject matter jurisdiction. Id. at 855.
Analysis
       Robbins concedes that no statute or legislative resolution grants him permission to sue in this
case, but he argues that Lostracco’s conduct was sufficiently egregious to waive the County’s
immunity from suit on the contract. He contends that the trial court erred by granting the County’s
plea to the jurisdiction because the supreme court has never precluded the possibility that a
governmental entity can engage in conduct related to a contract that is sufficiently egregious to waive
its immunity from suit.
       The supreme court has long recognized that it is the Legislature’s sole province to waive or
abrogate sovereign immunity. E.g., IT-Davy, 74 S.W.3d at 853; Fed. Sign v. Tex. S. Univ., 951
S.W.2d 401, 409 (Tex. 1997), superseded by statute on other grounds as stated in Gen. Servs.
Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 595 (Tex. 2001). Legislative consent
to sue by statute or resolution must be expressed in “clear and unambiguous language.” TEX. GOV’T
CODE ANN. § 311.034 (West 2013); Univ. of Texas Med. Branch at Galveston v. York, 871 S.W.2d
175, 177 (Tex. 1994). This deference allows the Legislature to protect its policymaking function
and preserve its interest in managing state fiscal matters through the appropriations process. IT-
Davy, 74 S.W.3d at 854. Further, subjecting the government to liability may hamper governmental
functions by shifting tax resources away from their intended purposes toward defending lawsuits
and paying judgments. Id. “Accordingly, the Legislature is better suited than the courts to weigh
the conflicting public policies associated with waiving immunity and exposing the government to
increased liability, the burden of which the general public must ultimately bear.” Id. (citing Fed.
Sign, 951 S.W.2d at 414 (Hecht, J., concurring)).
       In Federal Sign, the supreme court held that the state does not waive its immunity by simply
executing a contract, but a footnote in the opinion left open the possibility that “there may be other
circumstances where the State may waive its immunity by conduct other than simply executing a
contract so that it is not always immune from suit when it contracts.” 951 S.W.2d at 408 n.1. After
Federal Sign issued, the supreme court had several occasions to consider circumstances that
allegedly constituted a waiver by conduct, but declined to apply equitable waiver in each instance.
See Travis Cty. v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002); see also IT-Davy, 74
S.W.3d at 856-57; Little-Tex, 39 S.W.3d at 595.



                                                  4
       Most recently, the supreme court rejected any possible waiver by conduct exception in a
unanimous opinion. In Sharyland Water Supply Corp. v. City of Alton, the supreme court stated as
follows:


       Finally, Sharyland asserts that a party can waive immunity by conduct. It points to a footnote in
       Federal Sign v. Texas Southern University, 951 S.W.2d 401, 408 n. 1 (Tex.1997), in which we
       observed that there may be circumstances “where the State may waive its immunity by conduct other
       than simply executing a contract.” Five years after Federal Sign, however, we rejected the invitation
       to recognize such a waiver, holding that it was generally the Legislature’s province to waive immunity.
       Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 857 (Tex. 2002). We noted that
       “[c]reating a waiver-by-conduct exception would force the State to expend its resources to litigate the
       waiver-by-conduct issue before enjoying sovereign immunity’s protections—and this would defeat
       many of the doctrine’s underlying policies.” Id. We also emphasized that the Legislature had enacted
       comprehensive schemes that allow contracting parties to resolve breach-of-contract claims against the
       government. Id. By providing these avenues for redress, the Legislature has balanced competing
       private and public interests—a balance that would be thwarted if we allowed waiver-by-conduct
       exceptions in breach-of-contract actions against the government.
       IT-Davy is dispositive here. As in that case, we reject the invitation to recognize a waiver by conduct
       exception in a breach of contract suit against a governmental entity.


354 S.W.3d 407, 414 (Tex. 2011). Robbins acknowledges the decision in Sharyland, but argues the
supreme court’s reference to IT-Davy, a plurality opinion, signifies the court’s intent to limit its
holding to the facts of the case. We disagree. The court’s holding in Sharyland is clear and
forecloses the possibility of a waiver by conduct exception in breach of contract cases against the
government. 354 S.W.3d at 414; see also Cty. of Hidalgo v. Palacios, No. 13-17-00447-CV, 2018
WL 6627323, at *3 (Tex. App.—Corpus Christi Dec. 19, 2018, no pet. h.) (mem. op.); Dallas/Fort
Worth Int’l Airport Bd. v. Vizant Techs., LLC, 565 S.W.3d 69, 75 (Tex. App.—Dallas 2017, pet.
granted); City of Austin v. Util. Assocs., Inc., 517 S.W.3d 300, 313 (Tex. App.—Austin 2017, pet.
denied); Alts. Unlimited, Inc. v. Raymondville Indep. Sch. Dist., No. 13-13-00363-CV, 2014 WL
3737973, at *6 (Tex. App.—Corpus Christi Mar. 20, 2014, no pet.) (mem. op.).
       Robbins further argues that the supreme court’s holding in Sharyland was influenced by the
fact that claims were asserted against a city, for which the Legislature has created a comprehensive
scheme allowing contacting parties to resolve their claims. See TEX. LOC. GOV’T CODE ANN. §§
271.151-271.158; 271.160 (West 2016). Because Robbins’s claims are against a county, and
counties are specifically excluded from the scheme, he argues that Sharyland is distinguishable. See
id. § 271.151 (3). We disagree. As previously discussed, Sharyland forecloses the possibility of a
waiver by conduct exception to immunity for breach of contract claims. Moreover, the supreme
court’s rationales that it is the “Legislature’s province to waive immunity” and an “exception would



                                                         5
force the State to expend its resources to litigate the…issue” are equally applicable regardless of
whether the suit is against a city or a county. Sharyland, 354 S.W.3d at 414.
         For the foregoing reasons, we hold that there is no waiver by conduct exception to the
doctrine of governmental immunity in breach of contract cases. Accordingly, the trial court correctly
granted the County’s plea to the jurisdiction. We overrule Robbins’s first issue and need not address
his second, alternative issue.3 See TEX. R. APP. P. 47.1


                                          DISMISSAL WITH PREJUDICE
         In Robbins’s third issue, he challenges the trial court’s dismissal of his suit with prejudice.
He contends that the jurisdictional defect in his pleadings can be cured by obtaining a resolution
from the legislature.
         A dismissal “with prejudice” acts as a final determination on the merits. Black v. Jackson,
82 S.W.3d 44, 56 (Tex. App.—Tyler 2002, no pet.). Generally, a dismissal with prejudice is
improper when the plaintiff can remedy the jurisdictional defect. Sykes, 136 S.W.3d at 639.
         In reliance on Sykes, the County argues that the trial court properly dismissed Robbins’s
claims with prejudice. However, in Sykes, the supreme court reasoned that dismissal with prejudice
was appropriate because otherwise, the plaintiff, who previously had an opportunity to amend his
pleadings, could continue to amend his pleadings to craft a claim that would fall within the Texas
Tort Claims Act, resulting in endless litigation. See id. at 639. Here, however, Robbins cannot allege
any additional facts that would confer jurisdiction. The only cure for the jurisdictional defect in this
case is a legislative resolution granting him permission to sue. Thus, it would be illogical to dismiss
Robbins’s lawsuit with prejudice because it has neither definitively accrued, nor definitively failed
for lack of legislative consent. See Hirczy de Mino v. Univ. of Houston, No. 03-03-00311-CV,
2004 WL 2296131, at *7 (Tex. App.—Austin Oct. 14, 2004, pet. denied) (mem. op.) (“Unlike Sykes,
this is not a case involving potentially endless amendments to the pleadings that ultimately cannot
change the underlying facts asserted to support the cause of action…Hirczy de Mino has no cause
of action for breach of contract unless he can secure legislative consent”).4 For this reason, we
sustain Robbins’s third issue.

         3
           In Robbins’s second issue, he alternatively argues the trial court abused its discretion by denying his request
for expanded jurisdictional discovery to develop the facts with regard to his waiver by conduct argument.
         4
           At oral argument, Robbins confirmed that he would not bring another suit against Nacogdoches County unless
he first obtains consent to sue via a legislative resolution.


                                                            6
                                                   CONCLUSION
         Having overruled Robbins’s first issue and sustained his third issue, we modify the trial
court’s judgment by deleting “with prejudice” and replacing it with “without prejudice.” We affirm
the trial court’s judgment as modified.

                                                                  BRIAN HOYLE
                                                                     Justice



Opinion delivered March 29, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



                                                              7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 29, 2019


                                         NO. 12-18-00108-CV


          PAUL A. ROBBINS AND THE LAW OFFICE OF PAUL A. ROBBINS,
                                 Appellants
                                    V.
            NICOLE D. LOSTRACCO, IN HER OFFICIAL CAPACITY AS
              DISTRICT ATTORNEY FOR NACOGDOCHES COUNTY,
                                  Appellee


                                Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. C1732788)

                       THIS CAUSE came on to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being inspected, it is the opinion of the Court that the
judgment of the trial court below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified by deleting “with prejudice” and replacing it with “without
prejudice,” and as modified, the trial court’s judgment is affirmed; all costs of court shall be
assessed against the party incurring same; and that this decision be certified to the trial court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
