                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-15-00773-CV

                                AECOM USA, INC. and TCB, Inc.,
                                        Appellants

                                                 v.

 Jose Maria MATA, Individually, as Next Friend of Monica Gabriel Mata, and on behalf of the
 Estate of Martha Alicia Jimenez-Mata; Juan Gil Mata, Individually, and as Next Friend of Juan
            Gilardo Mata, Gilberto Mata, Jose M. Mata Jimenez, and Saira Moreno,
                                          Appellees

                   From the 293rd Judicial District Court, Maverick County, Texas
                                Trial Court No. 14-09-30070-MCV
                           Honorable Cynthia L. Muniz, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: September 21, 2016

DISMISSED FOR LACK OF JURISDICTION

           AECOM USA, Inc. and TCB, Inc. (collectively, “AECOM”) appeal from an interlocutory

order denying their motion for summary judgment based on sovereign immunity. AECOM, a

private engineering company, contracted with the Texas Department of Transportation (TxDOT)

to provide services related to the design and construction of a multi-lane roadway in Maverick

County, Texas. After a fatal traffic accident took place on the roadway, the individuals involved

in the accident and their family members sued AECOM for negligence. AECOM moved for
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summary judgment, arguing it was “immune from suit under the principles of derivative sovereign

or official immunity.” The trial court ultimately denied the motion. Because we conclude we lack

jurisdiction to consider the merits of this interlocutory appeal, we dismiss for lack of jurisdiction.

                                                BACKGROUND

        Martha Mata was driving in Eagle Pass, Texas, when her car left the roadway and struck a

steel pole located on a concrete traffic island. Mata sustained fatal injuries in the accident. The two

passengers in Mata’s car also sustained injuries, but they survived the accident. One of the adults

involved in the accident and other family members (“the Matas”) filed suit against AECOM,

claiming the engineering firm was negligent in designing the intersection where the accident took

place. AECOM filed an answer in which it denied the allegations in the Matas’ petition. Thereafter,

AECOM filed a motion for summary judgment, arguing it was immune from suit based on

sovereign or official immunity. The Matas filed a response, asserting AECOM failed to meet its

burden to establish, as a matter of law, that it was shielded from suit by immunity. The trial court

initially granted the summary judgment motion. However, the Matas filed a motion for new trial

and, after a hearing, the trial court denied the summary judgment motion. 1 AECOM appealed.

                                           SOVEREIGN IMMUNITY

        Sovereign immunity bars suits against the state and its governmental units absent

legislative consent. Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 119 (Tex. 2015).

Because sovereign immunity deprives a trial court of subject-matter jurisdiction, it is properly

asserted in a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

225-26 (Tex. 2004). However, the absence of subject-matter jurisdiction may also be raised in



1
 The Honorable Ron Carr granted the motion for summary judgment. The Honorable Cynthia Muniz granted the
motion for new trial, vacated the order granting the motion for summary judgment, and denied the motion for summary
judgment.

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other procedural vehicles, such as a motion for summary judgment. Bland Ind. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). The term “plea to the jurisdiction” refers to the substance of the

immunity argument and not to a particular procedural vehicle. Texas Dep’t of Criminal Justice v.

Simons, 140 S.W.3d 338, 349 (Tex. 2004).

                                    APPELLATE JURISDICTION

        Shortly after AECOM filed its notice of appeal, we issued an order questioning our

jurisdiction over this appeal. In response, AECOM filed a jurisdictional brief in which it asserted

this court had jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(8) of the

Texas Civil Practice and Remedies Code. We made a preliminary determination that we had

appellate jurisdiction and retained the appeal on our docket. Thereafter, AECOM and the Matas

filed briefs on the merits.

        We may not address the merits of an appeal absent jurisdiction. State v. Ninety Thousand

Two Hundred Thirty-Five Dollars and No Cents in U.S. Currency ($90,235), 390 S.W.3d 289,

291-92 (Tex. 2013). Therefore, we begin our analysis by reconsidering our appellate jurisdiction.

        The general rule is that only final judgments and orders are appealable. Bally Total Fitness

Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). “A party may not appeal an interlocutory order

unless authorized by statute.” Id. at 352. Section 51.014 of the Texas Civil Practice and Remedies

Code authorizes immediate appeals from certain interlocutory orders. TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a) (West Supp. 2016). In this case, AECOM contends this court has

jurisdiction over this appeal under section 51.014(a)(8), which authorizes an immediate appeal

from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit

as that term is defined in Section 101.001.” Id. § 51.014(a)(8). Section 101.001(3) of the Texas

Civil Practice and Remedies Code defines “governmental unit” as:



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               (A) this state and all the several agencies of government that
                   collectively constitute the government of this state, including
                   other agencies bearing different designations, and all
                   departments, bureaus, boards, commissions, offices, agencies,
                   councils, and courts;

               (B) a political subdivision of this state, including any city, county,
                   school district, junior college district, levee improvement
                   district, drainage district, irrigation district, water improvement
                   district, water control and improvement district, water control
                   and preservation district, freshwater supply district, navigation
                   district, conservation and reclamation district, soil conservation
                   district, communication district, public health district, and river
                   authority;

               (C) an emergency service organization; and

               (D) any other institution, agency, or organ of government the status
                   and authority of which are derived from the Constitution of
                   Texas or from laws passed by the legislature under the
                   constitution.

Id. § 101.001(3).

       Section 51.014 is a narrow exception to the general rule that only final judgments and

orders are appealable. Jackson, 53 S.W.3d at 355. For this reason, section 51.014 is strictly

construed. Id. In order to fall under section 51.014(a)(8), the party raising immunity must be a

“governmental unit” as that term is defined in section 101.001(3).

       Here, none of the definitions in section 101.001(3) apply to AECOM. AECOM is a private

company that contracted with TxDOT to provide services related to the design and construction of

a roadway. AECOM is not the state or an agency of government that constitutes the government

of the state. Nor is AECOM a political subdivision of this state or an emergency service

organization. Finally, AECOM is not an institution, agency, or organ of government the status of

which is derived from the state constitution or laws passed by the legislature. Thus, AECOM is

not a “governmental unit” as that term is defined in section 101.001(3).



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        AECOM does not contend that any of the four definitions of “governmental unit” applies

to it. Instead, AECOM argues “[a]ppellate [c]ourts have jurisdiction over an interlocutory appeal

based upon the denial of a private entity’s plea to the jurisdiction if that entity is the equivalent of

a ‘state official’ and sued in that capacity.” To support its argument, AECOM cites Ross v.

Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736 (Tex. App.—Houston [1st Dist.]

2010, no pet.). In Ross, the plaintiff sued a law firm when her real property was sold at a tax sale

after she failed to pay her taxes. Id. at 739. The law firm filed a plea to the jurisdiction, arguing

that it was immune from suit because its clients, the taxing entities, were protected by

governmental immunity. Id. at 740. The law firm further asserted its employees were likewise

protected, under the doctrine of official immunity, from claims related to their activities in the

collection of taxes for the taxing governmental entities. Id. The trial court agreed, granting the law

firm’s plea to the jurisdiction. Id. at 741. The plaintiff appealed the order, which was interlocutory

because it failed to dispose of all of the parties in the suit. Id. The appellate court concluded it had

jurisdiction to review the trial court’s grant of the law firm’s plea to the jurisdiction under section

51.014(a)(8). Id. at 744.

        In Ross, the appellate court did not rely on the definitions of governmental unit set out in

section 101.001(3) of the Texas Civil Practice and Remedies Code in determining its jurisdiction

over the interlocutory appeal. Id. at 742. Instead, the appellate court relied on Texas A&M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007), a case in which the Texas Supreme Court held that

the appellate court had jurisdiction to consider a government official’s appeal of the denial of his

plea to the jurisdiction based on sovereign immunity. Ross, 333 S.W.3d at 742 (“The Texas

Supreme Court has also held that ‘a state official sued in his official capacity’ should be treated

identically to ‘his employing governmental entity’ under section 51.014(a)(8).”).



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        In Koseoglu, the Texas Supreme Court explained that construing section 51.014(a)(8) to

exclude state officials would draw an artificial distinction between pleas filed by governmental

entities and pleas filed by state officials asserting the entities’ sovereign immunity from suit. 233

S.W.3d at 844. The Texas Supreme Court further explained that “[a] suit against a state official in

his official capacity is not a suit against the official personally, for the real party in interest is the

[governmental] entity.” Id. (internal quotations omitted; emphasis in original).

        In Ross, the appellate court extended Koseoglu to the situation before it and applied an

alternative test to determine whether it had jurisdiction over the appeal under section 51.014(a)(8).

333 S.W.3d at 742-44. Under this test, the appellate court considered whether the law firm was (1)

the equivalent of a state official, and (2) the capacity in which the law firm was sued. Id. at 742.

Importantly, in Ross, the plaintiff’s pleadings alleged that the law firm and its employees were

agents of various governmental units, and that under an applicable statute, agents in the paid

service of a governmental unit were considered employees. Id. The appellate court concluded that,

in light of these pleadings, the law firm stood “as the equivalent of a state official or employee.”

Id. Additionally, the appellate court concluded that because every allegation in the plaintiff’s

petition related to actions taken in the process of collecting taxes on behalf of the taxing entities,

the true nature of the plaintiff’s claims was against the law firm in its official capacity as an agent

of the governmental entities. Id. at 743. For these reasons, the appellate court in Ross concluded

that the law firm was the equivalent of a state official. Id. at 744. And, because the party asserting

sovereign immunity was the equivalent of a state official, the appellate court further concluded

that it had jurisdiction over the appeal. Id.

        The present case is distinguishable from Ross. In Ross, the plaintiff pled that the law firm

was an agent of the governmental units involved in that case, and the appellate court relied on

these pleadings to support its conclusions that the law firm was the equivalent of a state official,
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that all of the plaintiff’s claims related to actions taken in the process of collecting taxes on behalf

of the governmental entities, and that it had jurisdiction over the appeal. Ross, 333 S.W.3d at 742-

44. In this case, however, the Matas did not plead that AECOM was TxDOT’s agent, and nothing

in the record establishes that AECOM was TxDOT’s agent.

            AECOM encourages us to apply the test articulated in Ross to determine our jurisdiction

over this appeal. AECOM argues that it is the equivalent of a state official because of the control

TxDOT exercised over it and its work on the project, and because AECOM was sued by the Matas

in that capacity. To support its argument, AECOM directs our attention to the affidavit of Keith

Wetzig, AECOM’s associate vice-president. 2 In this affidavit, Wetzig explains his understanding

of the contractual relationship between AECOM and TxDOT. Specifically, Wetzig states that

TxDOT retained AECOM to assist in developing the plans, specifications, and estimate (“the

P,S,&E”) related to the construction of the roadway where the accident took place. The contract

required AECOM to perform the work by using the funding categories, design speed, functional

classifications, roadway class and any other criteria set forth in TxDOT’s Roadway Design

Manual, Bridge Design Manual, Hydraulic Design Manual, and other state-approved manuals.

AECOM prepared drawings, specifications, and details for all intersections using the TxDOT

standard specifications and, whenever possible, TxDOT standard drawings. Wetzig notes that the

contract required AECOM to submit the P,S,&E to TxDOT for its review and approval at the 30%,

60%, 90%, and final stages. And, according to Wetzig, the contract provided that TxDOT was

“responsible for the coordination, review, and the quality submission of the PS&E packages

prepared by” AECOM. Wetzig further states that AECOM’s actions and designs were all subject

to governance, oversight, and approval by TxDOT. Finally, Weitzig states that after the PS&E was



2
    The affidavit as well as the parties’ contract are included in the summary judgment record.

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completed and approved by TxDOT, AECOM performed little additional work on the project, and

that TxDOT performed the construction management services for the intersection where the

accident occurred.

       Even if we assume that the test articulated in Ross is a proper mechanism to determine our

jurisdiction over this appeal, Wetzig’s affidavit fails to establish that AECOM is the equivalent of

a state official or employee. First, the right to control the details of a person’s work determines

whether an employment or an independent contractor relationship exists. Weidner v. Sanchez, 14

S.W.3d 353, 373 (Tex. App.—Houston [14th Dist.] 2000, no pet.). A written contract expressly

providing for an independent contract relationship is generally determinative of the parties’

relationship. Id. Therefore, the first step in determining the nature of AECOM’s relationship with

TxDOT calls for an examination of the parties’ contract. Second, the type of control exercised by

an employer typically includes when and where to begin and stop work, the regularity of hours,

the amount of time spent on particular aspects of the work, the tools and appliances used to perform

the work, and the physical method or manner of accomplishing the end result. Thompson v.

Travelers Indem. Co., 789 S.W.2d 277, 278-79 (Tex. 1990). Wetzig’s affidavit does not address

these aspects of AECOM’s relationship with TxDOT.

       Here, the parties’ contract indicates that AECOM was an independent contractor, not an

employee. The contract did not identify AECOM as a TxDOT employee. The contract expressly

provided that AECOM was “doing business with” TxDOT, and prohibited AECOM from

providing gifts to any TxDOT employees. The contract also provided that AECOM was

responsible for furnishing the necessary equipment and the necessary personnel. Finally, the

contract required AECOM to maintain its own insurance and to indemnify TxDOT. See Olivares,

461 S.W.3d at 119-20 (noting similar factors supporting the conclusion that a private company

was an independent contractor and not an employee of a governmental entity).
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       We conclude that AECOM is not a governmental unit entitled to bring an interlocutory

appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Therefore, the

trial court’s order denying AECOM’s summary judgment motion is not an appealable interlocutory

order, and we have no jurisdiction over this appeal.

                                          CONCLUSION

       This appeal is dismissed for lack of jurisdiction.

                                                       Karen Angelini, Justice




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