Opinion filed April 17, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00117-CV
                                   __________

                       CITY OF MIDLAND, Appellant
                                        V.
              M.T.D. ENVIRONMENTAL, L.L.P., Appellee


                 On Appeal from the County Court at Law No. 2
                               Midland County, Texas
                          Trial Court Cause No. CC-14,397



                                   OPINION
       M.T.D. Environmental, L.L.P. sued the City of Midland for breach of a
written contract. The City filed a motion for summary judgment, and the trial
court granted it. M.T.D. appealed that ruling to this court. Because we held that
contractual waivers upon which the trial court relied were void, we reversed and
remanded the case to the trial court. Basically, we invited the parties to further
develop the issue of governmental immunity in the trial court. 1 On remand, the
trial court denied a plea to the jurisdiction that the City had filed.                           This
interlocutory appeal followed, and the issue of governmental immunity is squarely
before us. We reverse and render in part and affirm in part, and we remand the
case to the trial court for further proceedings consistent with this opinion.
           On May 9, 2007, the City and M.T.D. entered into a one-year contract
whereby M.T.D. agreed to grind yard waste (tree limbs and other yard waste) into
mulch. Some grinding took place at the City’s landfill, and the mulch was stored
there. Some grinding occurred off premises, and M.T.D. was to haul that mulch to
the City landfill. The City agreed to pay M.T.D. by the ton for those services.
During the course of the year, a dispute arose as to the amount that M.T.D. billed
the City. The City paid two of three invoices that M.T.D. sent but refused to pay
the last one based upon the belief of City personnel that M.T.D., in the three
invoices, had overcharged the City by a substantial amount. M.T.D. ultimately
sued the City for $100,609.25, the amount of the last invoice, as well as for interest
and attorney’s fees under the Prompt Payment Act. 2
           In the City’s plea to the jurisdiction, it challenged the trial court’s subject-
matter jurisdiction over M.T.D.’s attorney’s fee and interest claims under the
Prompt Payment Act; the City based that challenge on a claim of governmental
immunity from suit and from liability. As we have noted, the trial court disagreed,
and it denied the plea to the jurisdiction.
           A plea to the jurisdiction is a proper vehicle by which to challenge a trial
court’s subject-matter jurisdiction. Tex. Natural Res. Conservation Comm’n v. IT-
Davy, 74 S.W.3d 849, 855 (Tex. 2002). A claim of governmental immunity is a

           1
               M.T.D. Envtl., L..L.P. v. City of Midland, 315 S.W.3d 606 (Tex. App.—Eastland 2010, pet.
denied).
           2
               TEX. GOV’T CODE ANN. ch. 2251 (West 2008).

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challenge to a trial court’s subject-matter jurisdiction. 3 This court has jurisdiction
to review a district court’s interlocutory order denying or granting a plea to the
jurisdiction filed by a governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8) (West Supp. 2013).
        In a claim against a governmental entity, the claimant has the burden to
affirmatively establish that the trial court has subject-matter jurisdiction over the
claim. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464
(Tex. App.—Dallas 2009, pet. denied). Because the existence of a trial court’s
subject-matter jurisdiction is a question of law, our review of a challenge to it is
de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When we review a
trial court’s ruling on a challenge to subject-matter jurisdiction, we consider only
the pleadings and evidence relevant to the question of that jurisdiction; we do not
consider the merits of the claim. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). If evidence relevant to jurisdiction negates the
existence of jurisdiction, then the trial court must grant the plea to the jurisdiction.
Holland, 221 S.W.3d at 643. We will proceed to determine whether, then, M.T.D.
has met its burden in the face of the City’s claim of governmental immunity.
        There are two components to governmental immunity: immunity from suit
and immunity from liability. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.
2006). Immunity from suit deprives a court of subject-matter jurisdiction. Cnty. of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Governmental immunity
from suit is a bar to a suit against a governmental entity altogether, unless the State
has consented to it. Tooke, 197 S.W.3d at 332. On the other hand, governmental


        3“Courts often use the terms sovereign immunity and governmental immunity interchangeably.”

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). While both concepts refer to
immunity from suit and liability, sovereign immunity refers to the State and “the various divisions of state
government, including agencies, boards, hospitals, and universities,” and governmental immunity
“protects political subdivisions of the State, including counties, cities, and school districts.” Id.
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immunity from liability bars enforcement of a judgment against a governmental
entity. Id. A governmental entity waives immunity from liability when it enters
into a contract and binds itself to the terms of the contract. Id. But even though a
governmental entity might acknowledge liability or waive immunity from liability
by entering into a contract, immunity from suit is not waived until the legislature
consents to it. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political
Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). In
its sole issue on appeal, the City contends that it is immune from suit as well as
immune from liability under the Prompt Payment Act.
      Waiver of immunity is a matter for the legislature. Tooke, 197 S.W.3d at
332. Because legislative control over waiver of immunity is not to be lightly
disturbed, any waiver must be clear and unambiguous. See TEX. GOV’T CODE
ANN. § 311.034 (West 2013) (waiver must be by clear and unambiguous
language); Ben Bolt, 212 S.W.3d at 324.
      In its live pleading, M.T.D. alleged that it was “entitled to recover its
reasonable attorney fees incurred in collection of this invoice payment and interest
due under Section 2251.043, Texas Government Code [the Prompt Payment Act].”
It also alleged a claim under Chapter 271 of the Texas Local Government Code.4
The legislature has waived immunity, and the trial court has jurisdiction over the
breach of contract claims. See TEX. LOC. GOV’T CODE ANN. § 271.152 (West
2005). The City counters that, although the Prompt Payment Act might contain a
waiver of immunity from liability, there is no provision in the Act whereby the
State waived governmental immunity from suit.                 It is M.T.D.’s position that,
“[o]nce it is determined that governmental immunity has been waived by the City
under §271.152, the issue becomes whether MTD has the right to collect attorneys


      4   TEX. LOC. GOV’T CODE ANN. ch. 271 (West 2005 & Supp. 2013).
                                                4
fees and interest as provided in the Prompt Payment Act once the dispute is
resolved.”
      Section 271.152 of the Texas Local Government Code provides:
             A local governmental entity that is authorized by statute or the
      constitution to enter into a contract and that enters into a contract
      subject to this subchapter waives sovereign immunity to suit for the
      purpose of adjudicating a claim for breach of the contract, subject to
      the terms and conditions of this subchapter.

      By the terms of the Prompt Payment Act, political subdivisions are required
to make timely payment for the purchase of certain services made pursuant to a
contract. GOV’T §§ 2251.001–.055. The Act contains provisions for the payment
of interest and attorney’s fees under defined circumstances. However, the Act
does not contain any express provision that indicates that the legislature waived
immunity from suit. Id. Any waiver of governmental immunity must be clear and
unambiguous. Ben Bolt, 212 S.W.3d at 327. Neither party to this appeal contends
that the Prompt Payment Act in itself contains such a waiver. In fact, M.T.D.
states that “all of the discussion over whether immunity is waived under the
Prompt Payment Act is immaterial.” M.T.D.’s argument is based upon the premise
that, when the City entered into the contract with M.T.D., it waived immunity from
suit under Chapter 271 of the Texas Local Government Code and that that is all
that is jurisdictionally required for it to recover under the Prompt Payment Act.
Thus, the question to be determined in this appeal is: Does Chapter 271 of the
Texas Local Government Code waive immunity from suit and from liability for
remedies contained in the Prompt Payment Act?
      When we construe a statute, our main goal is to determine and give effect to
the legislature’s intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25
(Tex. 2003). To determine that intent, we look to the statute as a whole, as
opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.
                                        5
2002).   Our construction begins with the plain language of the statute under
review, and we apply its common meaning. City of San Antonio, 111 S.W.3d at
25. If the statutory text is unambiguous, we adopt a construction that is supported
by the plain language of the statute, unless that construction would lead to an
absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.
1999).
      The courts of appeals that have considered this issue have disagreed with
M.T.D.’s position. Those courts have held that, before one can bring suit seeking
the benefits of the Prompt Payment Act, the Act must contain a waiver of
immunity from suit and that there is no such waiver in the Prompt Payment Act.
See City of San Antonio v. KGME, Inc., 340 S.W.3d 870 (Tex. App.—San Antonio
2011, no pet.) (Prompt Payment Act contains waiver of immunity from liability,
but not from suit); Harris Cnty. Flood Control Dist. v. Great Am. Ins. Co., 309
S.W.3d 614 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (Prompt Payment Act
does not contain a waiver of immunity from suit); Port Neches-Groves Indep. Sch.
Dist. v. Pyramid Constructors, L.L.P., 281 S.W.3d 142, 147 (Tex. App.—
Beaumont 2009, pet. denied) (“Chapter 2251 does not waive governmental
immunity for resolving a disputed payment.”); McMahon Contracting, 277 S.W.3d
at 465 (there are no provisions in the Prompt Payment Act that discuss or address
governmental or sovereign immunity; the Act does not include language to indicate
that such immunity is waived).
      M.T.D.’s approach is somewhat different from the approach taken in the
above-cited cases in that M.T.D. claims that immunity is waived, not under the
Prompt Payment Act, but rather under Chapter 271. M.T.D. refers us to State v.
Mid-South Pavers, Inc., 246 S.W.3d 711 (Tex. App.—Austin 2007, pet. denied), in
support of its position.    We find that case to be distinguishable and, in its
differences, find it to be supportive of the position taken by the City.
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      In Mid-South Pavers, TxDOT and Mid-South had entered into a highway
construction contract. 246 S.W.3d at 714. Ultimately, a dispute arose under the
agreement. After administrative procedures were exhausted, Mid-South sought
review from the district court. On appeal of the district court’s ruling to the Austin
Court of Appeals, the appellate court was called upon to consider, among other
things, TxDOT’s assertion that it was immune from suit as well as from liability by
virtue of its sovereign immunity. Id. at 728–31.
      The statutes under review by the Austin court, and under which waiver of
immunity from suit was found to exist, are not like those involved in this appeal.
Section 201.112 of the Texas Transportation Code provides the exclusive remedy
for contract claims against TxDOT. Id. at 729. In that statute, the legislature
waived immunity from suit when the suit was one to resolve “a claim arising out of
a contract.” Id. (quoting TEX. TRANSP. CODE ANN. § 201.112(a) (West 2011)).
      After applying the rules of statutory construction, the Austin Court of
Appeals construed the language “arising out of” to require a nexus or connection
between the claim and the attorney’s fees and interest, and it concluded that the
fees and interest “stem or result from the contract.” Id. It reasoned that, “[w]ithout
the contract . . . Mid-South would have no claims for attorney’s fees or interest.”
Id. The court found a sufficient nexus and concluded that the claims for attorney’s
fees and interest arose out of the contract within the meaning of Section 201.112
of the Transportation Code and that Section 201.112 waived immunity from suit on
those claims. Id. at 730. Although the court held that the Prompt Payment Act
contained a waiver of governmental immunity from liability, the court held that it
was the language of Section 201.112 of the Texas Transportation Code that
resulted in a waiver of immunity from suit. The court wrote: “Therefore, we
conclude that Mid-South’s claims for attorney’s fees and interest are claims


                                          7
‘arising out of a contract’ within the meaning of section 201.112 and that section
201.112 necessarily waives sovereign immunity from suit on those claims.” Id.
      Because          the    claim     in    Mid-South        Pavers      was      brought        under
Section 201.112(a) of the Texas Transportation Code with its “arising from”
language, the Dallas court in McMahon concluded that it was distinguishable. We
agree. McMahon “turn[ed] on the discreet provisions of Chapter 271 of the local
government code.” McMahon, 277 S.W.3d at 466. Chapter 271 was not part of
the analysis in Mid-South Pavers, and Chapter 271 does not contain similar
“arising from” language as did the Transportation Code provision relied upon
there. Mid-South informs us that the legislature knew how to include language in a
statute in order to waive governmental immunity from suit.
      We also note the legislative history that surrounds Section 271.159 of the
Texas Local Government Code. At the time that the City and M.T.D. entered into
the contract, Section 271.159 barred the recovery of attorney’s fees unless
provisions for the recovery were expressly provided for in the agreement by
specific reference to Section 271.159.5 The contract in this case did not provide
for the recovery of attorney’s fees. When the legislature repealed Section 271.159
in 2009, it also added Section 271.153(a)(3) to allow for the recovery of attorney’s
fees.6 An amendment to Section 271.153 in 2011 included a change regarding the
recovery of interest. Since its enactment in 2005, Section 271.153 has provided for
the recovery of “interest as allowed by law.” 7 In 2011, the section was amended to
provide for the recovery of “interest as allowed by law, including interest as



      5   Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 1, 2005 Tex. Gen. Laws 1548.

      6   Act of May 31, 2009, 81st Leg., R.S., ch. 1266, §§ 8, 16, 2009 Tex. Gen. Laws 4006–08.

      7   Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 1, 2005 Tex. Gen. Laws 1548.


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calculated under Chapter 2251” of the Texas Government Code.8 The amendment
was effective September 1, 2011, and applied prospectively only. 9 These changes
in the law further convince us that, at the time the contract was entered into in this
case, Chapter 271 of the Texas Local Government Code did not constitute a waiver
of governmental immunity from suit in connection with Chapter 2251 of the Texas
Government Code.
       For all of the foregoing reasons, we agree with our sister courts of appeals
that have addressed the subject. We hold that, under the facts of this case, the City
was immune from suit in connection with the Prompt Payment Act claims made by
M.T.D. The trial court erred when it denied that portion of the City’s plea to the
jurisdiction in which it asserted governmental immunity from suit in connection
with the Prompt Payment Act claims.                      The City’s single issue on appeal is
sustained as to the Prompt Payment Act claims. Otherwise, the issue is overruled.
       We reverse the order of the trial court in part and render judgment
dismissing the claims made in this lawsuit by M.T.D. under the Prompt Payment
Act. We affirm as to the trial court’s jurisdiction to hear M.T.D.’s claims under
Chapter 271, and we remand that portion of this case to the trial court for further
proceedings consistent with this opinion.


April 17, 2014                                                   JIM R. WRIGHT
Panel consists of: Wright, C.J.,                                 CHIEF JUSTICE
Bailey, J., and McCall.10

Willson, J., not participating.

       8   Act of May 19, 2011, 82nd Leg., R.S., ch. 226, § 1, 2011 Tex. Gen. Laws ___.

       9   Id. §§ 2–3.

       10
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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