Affirm; Reverse and Remand and Opinion Filed March 20, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00278-CV

                     REBECCA AMADOR, Appellant
                                 V.
                  THE CITY OF IRVING, TEXAS, Appellee

                On Appeal from the 14th Judicial District Court
                            Dallas County, Texas
                     Trial Court Cause No. DC-18-02425

                        MEMORANDUM OPINION
           Before Justices Osborne, Partida-Kipness, and Pedersen, III
                         Opinion by Justice Pedersen, III
      Rebecca Amador appeals an order that granted a plea to the jurisdiction in

favor of the City of Irving, Texas, the appellee, on governmental immunity grounds.

The central issue in this appeal is whether a legislative waiver of immunity applies

to Amador’s claims. We affirm in part and reverse and remand in part.
                                                 I.
                                             Background

        In 2016, Amador enrolled in a Housing Restoration Program (the program)

offered through the City1 and funded by a grant awarded by the United States

Department of Housing and Urban Development. The program provides loans to

low-income homeowners to refurbish their homes using City-approved contractors

under City supervision.

        The responsibilities of Amador, the City, and her contractor under the

program are defined by several documents, which we will refer to collectively as

“the subject contract.” Namely, on February 23, 2016, Amador signed a copy of the

City’s Policies and Procedures (the policies) given to her by a City representative.2

The policies explain the program in detail, including the processes for selecting

contractors and the responsibilities of the homeowner, the City, and the contractor

with respect to a given restoration project. Pertinent to this case, the policies require

the City to “ensure that all work is completed at the highest quality level and [in the]

most workmanlike manner possible.”




    1
     Participants in the program include (i) the City’s Planning and Community Development Department,
and (ii) the Housing and Human Services Board, which is authorized and appointed by the Irving City
Council. In this opinion, we will refer to these entities collectively as “the City.”
    2
      Amador was allegedly given two versions of the policies, one dated 2010 and the other dated 2014.
She claims that the underlying obligations of the City and the contractor are substantively the same in both
versions.
                                                   –2–
        On May 17, 2016, Amador signed a loan agreement with the City in the

principal amount of $50,657.00 to finance Amador’s obligation under the program.

Of this amount, $20,262.80 is non-deferred and interest bearing, resulting in 180

payments of $121.27, or a total of $21,828.92. The remaining $30,394.20 is a

deferred, non-interest bearing loan, forgiven at a rate of 1/15th per year. However,

Amador must repay this portion of the loan in full should she move out of her home

or choose to sell it.

        The program utilizes a list of preferred contractors who have been vetted by

the City and have agreed to its terms, practices, and construction standards. All

preferred contractors are provided a “Work Write Up” for a given project and are

invited to bid on the project. Upon its receipt and review of the bids, the City presents

all eligible bids to the homeowner. The homeowner may then choose a contractor

from any of the eligible bids. Should the homeowner wish to utilize a contractor who

is not on the preferred contractor list, the contractor must agree to become a preferred

contractor and agree to all fees and requirements.

        On May 17, 2016, Amador executed a Housing Rehabilitation Mechanic’s

Lien Contract (the HR Contract) with Javier Villagomez, the contractor that she

selected to restore her home. Villagomez immediately transferred the lien to the City,

and Amador alleges on information and belief that the City continues to hold the

lien.



                                          –3–
      Amador is not satisfied with Villagomez’s restoration of her home. She claims

that he performed substandard work on the foundation, leaving the home unleveled

and causing its wood floors, walls, and doors to crack, buckle, and/or tilt off-level.

According to Amador, Villagomez also painted the home’s exterior with a dark gray

paint that is inappropriate for use on siding, particularly on siding frequently exposed

to hot weather. As a result, the siding on the east and west sides of Amador’s home

melted, resulting in a contortion and shrinkage. In sum, Amador claims that

Villagomez’s restoration work in many ways left her home in a worse condition than

it was before the supposed “repairs” were performed.

      Amador alleges on information and belief that the City was aware, or should

have been aware, that Villagomez was not competent, licensed, bonded, or insured.

She also claims that she informed the City of the problems with Villagomez’s work

and that, in response, the City’s “staff . . . repeatedly told [her] that some aspects of

the work would be corrected.” Notwithstanding these assurances, the City allegedly

paid Villagomez in full and did nothing to help fix the damage.

      On February 20, 2018, Amador sued the City and Villagomez. Her original

petition asserts: (i) against both defendants, claims for breach of contract and

negligence, and (ii) against the City, claims for fraudulent inducement and violations

of the Deceptive Trade Practices Act (DTPA). See TEX. BUS. & COM. CODE ANN. §§

17.41–.63. Amador sought damages and a declaratory judgment that the subject

agreements be declared void or voidable at her election. See TEX. CIV. PRAC. & REM.
                                          –4–
CODE ANN. §§ 37.001–.011 (Uniform Declaratory Judgments Act). She also sought to

recover the attorney’s fees that she incurred while prosecuting her contract claim,

see id. § 38.001(8), and her DTPA claim, see BUS. & COM. § 17.50(d).

       The City and Villagomez both denied Amador’s allegations. The City’s

answer also included a plea to the jurisdiction. This plea was based on governmental

immunity, and it asserted that Amador had not met her burden to plead facts invoking

the district court’s jurisdiction.

       On June 15, 2018, the district court held a hearing on the City’s plea and then

signed an order that granted the plea and dismissed the City from Amador’s suit. A

little over three months later, Villagomez filed a third-party petition against Brothers

Foundation LLC and Everardo Anguiano d/b/a/ All Electrical Services, who were

subcontractors retained by Villagomez to assist with Amador’s restoration project.

Amador also filed an amended petition, her current live petition, which added a gross

negligence claim against Villagomez.

       In January 2019, Amador reached a settlement with Villagomez. She then

filed a motion to non-suit her claims against Villagomez with prejudice, and

Villagomez also sought to non-suit his third party claims without prejudice. The

district court signed orders granting the motions to non-suit. These orders rendered

the court’s June 15 order final, and Amador perfected this appeal.




                                          –5–
                                        II.
                                      Analysis

      The City’s plea to the jurisdiction urged that it is immune from Amador’s suit.

Political subdivisions of the State possess governmental immunity from suit unless

the Legislature has waived that immunity. Byrdson Servs., LLC v. Se. Tex. Reg’l

Planning Comm’n, 516 S.W.3d 483, 485 (Tex. 2016). A legislative waiver of

immunity must be undertaken “‘by clear and unambiguous language,’” and thus

“statutory waivers of immunity are to be construed narrowly.” Texas Adjutant

General’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (quoting TEX. GOV’T

CODE ANN. § 311.034).

      One such waiver is found in section 271.152 of the Local Government Code,

which states:

      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.

TEX. LOC. GOV’T CODE ANN. § 271.152. “According to its plain terms, the statute

by clear and unambiguous language waives a governmental entity’s immunity from

suit for breach of written contract.” City of Houston v. Williams, 353 S.W.3d 128,

134 (Tex. 2011).

      Amador asserts two reasons that, in her view, the district court erred in

granting the City’s plea to the jurisdiction. In her first issue, she contends that the

                                         –6–
subject contract waived the City’s governmental immunity pursuant to section

271.152. In her second issue, Amador argues that, even if the City’s immunity was

not waived, she may still seek a declaration of her prospective, as opposed to her

retrospective, contract obligations. The City disagrees with Amador’s assertions and

also asserts that it is immune from Amador’s breach of contract claim because there

is no “balance due and owed” by the City under the contract. See id. § 271.153(a)(1).

A.    Standard of Review

      An assertion of governmental immunity implicates a court’s subject matter

jurisdiction, and this immunity is properly asserted in a plea to the jurisdiction.

Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). In such a plea, a defendant

may challenge the plaintiff’s pleadings, the existence of jurisdictional facts, or both.

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

      1.     Challenging the pleadings

      The plaintiff bears the initial burden to allege facts demonstrating jurisdiction.

Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010); Texas

Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Whether a plaintiff has met this burden is a question of law that we review de novo.

Miranda, 133 S.W.3d at 226. We must construe the pleadings liberally in the

plaintiff’s favor and look to the pleader’s intent. Hayes, 327 S.W.3d at 116; Miranda,

133 S.W.3d at 226. If the pleadings affirmatively negate the existence of jurisdiction,



                                          –7–
then a plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend. Miranda, 133 S.W.3d at 227.

      On the other hand, if the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, then the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226–

27. However, this right has its limits. “If a plaintiff has been provided a reasonable

opportunity to amend after a governmental entity files its plea to the jurisdiction, and

the plaintiff’s amended pleading still does not allege facts that would constitute a

waiver of immunity, then the trial court should dismiss the plaintiff’s action.” Harris

Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).

      2.     Challenging the existence of jurisdictional facts

      When a plea to the jurisdiction challenges the existence of jurisdictional facts,

we must consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues presented. Miranda, 133 S.W.3d at 227. Under this

scenario, the standard of review mirrors that of a traditional motion for summary

judgment. Clark, 544 S.W.3d at 771; Miranda, 133 S.W.3d at 228. In other words,

the defendant has the burden to establish that it is a governmental entity entitled to

governmental immunity. Lubbock Cty. Water Control and Improvement Dist. v.

Church & Akin, L.L.C., 442 S.W.3d 297, 305 (Tex. 2014). If it satisfies that burden,

the burden then shifts to the plaintiff to establish, or at least to raise a fact issue on,
                                           –8–
a waiver of immunity. Id. In determining whether a material fact issue exists, we

must take as true all evidence favorable to the plaintiff, indulging every reasonable

inference and resolving any doubts in the plaintiff’s favor. Clark, 544 S.W.3d at 771;

Miranda, 133, S.W.3d at 228. However, our analysis cannot disregard evidence

necessary to show context, and we cannot disregard evidence and inferences

unfavorable to the non-movant if reasonable jurors could not. Clark, 544 S.W.3d at

771.

       When the evidence of jurisdictional facts is undisputed, our determination of

whether such evidence establishes a trial court’s jurisdiction is a question of law that

we review de novo. Miranda, 133 S.W.3d at 226. In some cases, disputed evidence

of jurisdictional facts that also implicate the merits of the case may require resolution

by the finder of fact. Id.

       3.     Application

       Here, the City’s plea challenged the sufficiency of Amador’s petition to

invoke the district court’s jurisdiction. Accordingly, we must determine whether

Amador met her pleading burden to establish a legislative waiver of governmental

immunity. As discussed below, Amador met this burden with respect to her breach

of contract claim, but she did not meet this burden as to her other claims.

       The City also offered exhibits in support of its plea, including a copy of the

HR Contract and copy of the transfer of lien. Although the City’s initial burden was

only to establish that it is a governmental entity entitled to governmental immunity,
                                          –9–
see Church & Akin, L.L.C., 442 S.W.3d at 305, the foregoing exhibits demonstrate

a legislative waiver of immunity with respect to Amador’s breach of contract claim,

as explained below.

B.    Breach of Contract Claim

      1.     Goods or services

      Section 271.152 applies to “a contract subject to this subchapter,” LOC. GOV’T

§ 271.152, which the statute elsewhere defines as including “a written contract

stating the essential terms of the agreement for providing goods or services to the

local governmental entity that is properly executed on behalf of the local

governmental entity,” id. § 271.151(2)(A). Amador’s first issue contends that the

subject contract meets the foregoing definition, and thus, the City’s immunity has

been waived. The City does not dispute that the contract “stat[ed] the essential terms

of the agreement” and “[was] properly executed on behalf of the [City].’ Id. Thus,

the central issue that we must determine is whether the contract was an “agreement

for providing goods or services to the [City].” Id.

      The term “service” in Chapter 271 “includes generally any act performed for

the benefit of another under some arrangement or agreement whereby such act was

to have been performed.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320

S.W.3d 829, 839 (Tex. 2010). “The services provided need not be the primary

purpose of the agreement.” Id. However, Chapter 271 does not extend to “‘contracts

in which the benefit that the local governmental entity would receive is an indirect,
                                         –10–
attenuated one.’” Id. (quoting Berkman v. City of Keene, 311 S.W.3d 523, 527 (Tex.

App.—Waco 2009, pet. denied)).

                a. Amador’s arguments

        Amador notes that the City owns an interest in her property in the form of the

lien transferred by Villagomez. See Sec. State Bank & Tr. v. Bexar Cty., 397 S.W.3d

715, 721 (Tex. App.—San Antonio 2012, pet. denied) (“A lienholder possesses a

legally protected property interest.”).3 Moreover, in the event of a default by

Amador, the lien gives the City authority to sell the property at auction and receive

a commission. Based on these facts, in Amador’s view, the City directly benefitted

from the services that Villagomez performed on the property pursuant to the

contract. Under this reasoning, when Villagomez performed services on Amador’s

home, those services were provided to both Amador and the City.

        Amador claims that the City’s direct benefit is further enhanced by its receipt

of interest on a portion of the loan’s principal amount, cf. Schoffstall v. City of

Corpus Christi, No. 13-13-00531-CV, 2014 WL 4249801, at *5 (Tex. App.—

Corpus Christi–Edinburg Aug. 25, 2014, no pet.) (mem. op.) (concluding that “zero

interest” loan agreement did not involve provision of goods or services directly to



    3
      See also John Deloach Enters., Inc. v. Telhio Credit Union, Inc., 582 S.W.3d 590, 596 (Tex. App.—
San Antonio 2019, no pet.) (“[A] first lienholder generally has sufficient interest in the property to sue a
third party for conversion.”); State Bank of Omaha v. Means, 746 S.W.2d 269, 272 (Tex. App.—Texarkana
1988, writ denied) (“A mortgage is a substantial property interest that is entitled to the constitutional
protection of due process.”); cf. Flag-Redfern Oil Co. v. Humble Expl. Co., 744 S.W.2d 6, 8 (Tex. 1987)
(“The mortgagor retains the legal title and the mortgagee holds the equitable title.”).
                                                   –11–
city), and by the fact that the City’s lien was protected by the insurance that the

contract required Amador to obtain on the property.

              b. The City’s response

       The City counters that it was only a conduit for the federal funds used to

rehabilitate Amador’s home. Under this logic, Amador, not the City, directly

benefitted from Villagomez’s goods and services, and the City received merely an

indirect, attenuated benefit.

              c. Sister court cases

       The City cites two sister court cases to support its position that section 271.152 does not

apply here.

       In East Houston Estate Apartments, L.L.C. v. City of Houston, a city loaned

federal and private funds to a property owner to rehabilitate an apartment complex

within the city. 294 S.W.3d 723, 726, 736–37 (Tex. App.—Houston [1st Dist.] 2009,

no pet.). While the city might benefit in a general way from refurbished apartments

and low-income housing, our sister court concluded that nothing in the contract

obligated the property owner to provide any municipal service directly to the city.

Id. at 736. Rather, the city was simply a conduit of federal funds and a facilitator of

the project. Id.

       In San Antonio Housing Authority v. Serento Apartments, LLC, an apartment

complex owner and the San Antonio Housing Authority (SAHA) entered into a

written federal Housing Assistance Program contract under the Section 8 Moderate

                                              –12–
Rehabilitation Program, which provides rental assistance for low-income families.

478 S.W.3d 820, 822 (Tex. App.—San Antonio 2015, no pet.). Under this program,

SAHA would refer to Serento eligible families from a waiting list, and Serento

would screen and select from those eligible families. Id. The selected family and

Serento would then enter into a separate apartment lease contract. Id. SAHA would

pay a sliding scale portion of the family’s monthly rent directly to Serento. Id.

      Serento asserted that the foregoing contract “provid[ed] a service providing

and operating low-income housing so that SAHA d[id] not have to build more

housing courts.” See id. at 825. Our sister court disagreed. The court applied the

reasoning from East Houston and concluded that SAHA was merely the conduit of

federal funds and did not directly benefit from the services provided by Serento. Id.

at 826. Under this circumstance, Serento did not meet its burden of showing that

SAHA had waived its governmental immunity under section 271.152. Id.

      The City asserts that the foregoing cases support its position that the subject

contract provided the City with only an indirect benefit. In contrast, Amador argues

that these cases are distinguishable. According to Amador, they “did not consider

whether repairs to property in which the governmental entity held a valid legal

interest constituted a service to the [entity], particularly where the entity enjoyed the

right to collect interest or foreclose on the property” and the right to “require[ ] that

insurance be maintained on the property to protect the [entity’s] interests.”



                                          –13–
       The City also acknowledges City of El Paso v. High Ridge Construction, Inc.,

442 S.W.3d 660 (Tex. App.—El Paso 2014, pet. denied). In that case, the City of El

Paso entered into a contract with High Ridge to provide weatherization services “on

behalf of the City”—including the installation of emergency-efficient appliances—

in qualified low-income residential properties. Id. at 663–64, 669. Our sister court held

that High Ridge’s services did not provide a direct benefit to the City, and therefore, section

271.152 did not apply. Id. at 669–70. This did not end the court’s inquiry, however, because the

weatherization contract also required High Ridge to provide a one-year warranty to the client and

to the City for the work completed and to indemnify and defend the City from any claims arising

from High Ridge’s activities under the contract. Id. at 670. The warranty and indemnity term

provided a direct benefit to the City that qualified as the provision of services under section

271.152. Id. (citing Kirby Lake, 320 S.W.3d at 839 (agreement between residential developers and

city water control and improvement district authority entailed the provision of goods or services

under Section 271.152 where developers agreed to construct, develop, lease, and bear all risk of

loss or damage to water and sewer facilities)).

       In the City’s view, City of El Paso is distinguishable because, unlike in this

case, the High Ridge contract expressly stated that its services were provided “on

behalf of the City.” Id. at 669. Amador replies that the foregoing contract language

was not the basis of the court’s decision and that requiring such language for section

271.152 to apply would contravene the rule that “[t]he services provided . . . need

not be the primary purpose of the agreement.” Kirby Lake, 320 S.W.3d at 839.

Amador also notes that the court’s holding in City of El Paso rested on the warranty

                                                  –14–
and indemnification term, id. at 670, and she urges that a similar term is present in this case.

Thus, Amador views City of El Paso as supporting her position that section 271.152 applies here.

              d. Analysis

       Amador’s petition alleges that the subject contract provides a service to the

City in the form of (i) the lien assigned by Villagomez, and (ii) the obligation

undertaken by Amador to pay interest on her loan from the City. Stated another way,

Villagomez’s service of repairing Amador’s home was also a service to the City by

virtue of its property interest in the home. Moreover, Amador’s payment of interest

to the City provided it with a direct benefit. See Kirby Lake Dev., Ltd., 320 S.W.3d

at 839. The City cannot be considered a mere conduit of federal funds because it is

also earning interest on these funds. The foregoing allegations were sufficient to

invoke the district court’s jurisdiction pursuant to section 271.152.

       In addition, the City’s evidence established that section 271.152 applies to this

case. Specifically, the HR Contract contains an indemnity term under which

Villagomez agreed to indemnify, release, and hold the City harmless from all claims

for injury or death to any person, or for damage to any property, arising out of, or in

connection with, Villagomez’s activities related to the contract. This term, as well

as the terms referenced above, provided the City with a direct benefit. Kirby Lake,

320 S.W.3d at 839; City of El Paso, 442 S.W.3d at 670. Accordingly, the subject

contract was an agreement for providing services to the City. See LOC. GOV’T

§§ 271.151(2)(A), 271.152.

                                             –15–
      2.    Balance Due and Owed

      Section 271.152 is “subject to the terms and conditions of this subchapter,”

LOC. GOV’T § 271.152, and such “terms and conditions” incorporate the limitations

set forth in section 271.153, id. § 271.153; Zachry Constr. Corp. v. Port of Houston

Auth. of Harris Cty., 449 S.W.3d 98, 108–109 (Tex. 2014). Thus, section 271.152’s

waiver of immunity from suit does not extend to claims for damages not recoverable

under section 271.153. Zachry, 449 S.W.3d at 110.

      Based on the foregoing, the City invokes section 271.153 as an additional

ground to support the district court’s grant of its jurisdictional plea. Under this

section:

      [T]he total amount of money awarded in an adjudication brought
      against a local governmental entity for breach of a contract subject to
      this subchapter is limited to . . . (1) the balance due and owed by the
      local governmental entity under the contract.

LOC. GOV’T § 271.153.

      A “balance due and owed” is “simply the amount of damages for breach of

contract payable and unpaid.” Zachry, 449 S.W.3d at 111. “Direct damages for

breach—the necessary and usual result of the defendant’s wrongful act—certainly

qualify.” Id. (citation and internal quotation marks omitted)); see also Arthur

Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997) (“Direct

damages compensate . . . for the loss that is conclusively presumed to have been

foreseen by the defendant from his wrongful act.”). Such damages need not be set

                                       –16–
out in the contract to be “due and owed.” Zachry, 449 S.W.3d at 113. In contrast,

consequential damages—“damages that result naturally, but not necessarily, from

the defendant’s wrongful acts”4—are not recoverable barring an exception not

applicable here. LOC. GOV’T § 271.153(b)(1); Zachry, 449 S.W.3d at 112, 114 &

n.71.5

         The City asserts that Amador has not alleged a balance due and owed. We

disagree. Amador alleges that the contract obligated the City to “ensure that all work

performed is completed in the highest quality and most workmanlike manner.” Her

petition claims that the repairs performed by Villagomez were incomplete and

“utterly deficient.” Moreover, according to Amador’s allegations, the City “fail[ed]

to ensure that necessary warranty work was completed” and made no effort to

remedy Villagomez’s poor workmanship. The unfinished work purportedly includes

(i) an unleveled foundation that will cost $7,725 to repair, (ii) a master bathroom

still in disrepair, and (iii) several items that need to be replaced, such as the windows

and the carpet in the master bedroom. In addition, the improper work purportedly

includes (i) siding that suffered $18,482 in damage, and (ii) several incorrectly




    4
     See Zachry, 449 S.W.3d at 114 n.71 (quoting Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc.,
348 S.W.3d 894, 901 (Tex. 2011)).
    5
      Section 271.153(b)(1) prohibits recovery of consequential damages “except as expressly allowed
under Subsection (a)(1).” Id. Subsection (a)(1), in turn, defines the “balance due and owed” to include “any
amount owed as compensation for the increased cost to perform the work as a direct result of owner-caused
delays or acceleration.” Id. § 271.153(a)(1). This case does not involve such delays or acceleration.
                                                   –17–
installed items, such as light switches wired in an unsafe manner and vinyl flooring

that was not properly glued down. Amador seeks damages to remedy these defects.

         The foregoing harms directly and necessarily resulted from the City’s breach

of the contract. See Zachry, 449 S.W.3d at 111. As such, Amador has alleged a

“balance due and owed.” See LOC. GOV’T § 271.153.

         Accordingly, we reverse the district court’s order granting the City’s plea to

the jurisdiction insofar as that order dismissed Amador’s breach of contract claim.

C.       Non-Contract Claims

         Amador does not cite any legislative waiver of immunity regarding her

fraudulent inducement6 or DTPA claims,7 nor does she argue that the legislative

waiver of immunity for negligence claims8 applies here. See also LOC. GOV’T §

271.157 (providing that subchapter I of Chapter 271 does not waive immunity for

negligent or intentional torts).

         She instead urges that, because section 271.152 waived immunity with respect

to her breach of contract claim, the district court need not separately determine


     6
      Cf. CIV. PRAC. & REM. § 101.057(2) (providing that Tort Claims Act does not apply to a claim arising
out of an intentional tort).
     7
      Cf. City of Wylie v. Taylor, 362 S.W.3d 855, 864–65 (Tex. App.—Dallas 2012, no pet.) (“After
analyzing [Business and Commerce Code section 17.45(3)], we conclude the Legislature has not therein
expressed a clear and unambiguous waiver of governmental immunity.” (citation and internal quotation
marks omitted)); Kojo Wih Nkansah v. Univ. of Tex. at Arlington, No. 02-10-00322-CV, 2011 WL 4916355,
at *4 (Tex. App.—Fort Worth Oct. 13, 2011, pet. denied) (mem. op.) (“The DTPA does not clearly and
unambiguously provide for a waiver of immunity from suit for governmental units.”).
     8
     See CIV. PRAC. & REM. § 101.021 (waiving immunity in a negligence suit if the action involves (i)
property damage, personal injury, or death arising from the operation or use of a motor vehicle, or (ii)
personal injury or death caused by a condition or use of tangible personal or real property).
                                                  –18–
whether it has subject-matter jurisdiction over her non-contract claims. See Harris

Cty. Flood Control Dist. v. PG & E Tex. Pipeline, L.P., 35 S.W.3d 772, 773 (Tex.

App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (“When the trial court has

jurisdiction over any claim against a governmental entity, the court should deny that

entity’s plea to the jurisdiction.”), abrogated on other grounds by City of Houston v.

Northwood Mun. Util. Dist. No. 1, 74 S.W.3d 183, 184–85 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (per curiam); Blum v. Restland of Dallas, Inc., 971 S.W.2d 546,

549 (Tex. App.—Dallas 1997, pet. denied) (because trial court had jurisdiction over

at least part of case, overruling cross-point that asserted such court erred in denying

plea to jurisdiction). More recently, the Texas Supreme Court held that “[a] trial

court is not required to deny an otherwise meritorious plea to the jurisdiction . . .

based on a jurisdictional challenge concerning some claims because the trial court

has jurisdiction over other claims.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex.

2006); see also id. at 338 (“[I]t is proper for a trial court to dismiss claims over which

it does not have subject matter jurisdiction but retain claims in the same case over

which it has jurisdiction.”).9

       Amador interprets the phrase “not required” in Long to mean that a trial court

may, in its discretion, deny a plea to the jurisdiction as to one claim based on the fact

that it has jurisdiction over another claim. Since Long, however, the Supreme Court


   9
     The Long court also disapproved of the First Court of Appeals’ decision in PG & E to the extent PG
& E had held otherwise. See id. at 339.
                                                –19–
has made clear that “a plaintiff must demonstrate that the court has jurisdiction over

. . . each of his claims; the court must dismiss those claims (and only those claims)

over which it lacks jurisdiction.” Heckman v. Williamson Cty., 369 S.W.3d 137,

152–53 (Tex. 2012); see also id. at 153 (“[T]he court must assess standing plaintiff

by plaintiff, claim by claim.”). Accordingly, we reject Amador’s interpretation of

Long.

        In short, Amador’s petition affirmatively establishes that the City is immune

with respect to her fraudulent inducement, DTPA, and negligence claims. Thus, she

need not be allowed an opportunity to amend her petition with respect to these

claims. Miranda, 133 S.W.3d at 227. We affirm the district court’s order granting

the City’s plea to the jurisdiction insofar as that order dismissed these non-contract

claims.

D.      Declaratory Judgment Claim

        Amador’s petition also requested a declaration that the subject contract “be

declared void or voidable at her election due to the City fraudulently inducing her

into the contract.” See CIV. PRAC. & REM. §§ 37.001–.011 (Uniform Declaratory

Judgments Act). Amador’s purpose in asserting this claim is to relieve her from the

obligation of making prospective loan payments. Her second issue urges that the

City is not immune from her Uniform Declaratory Judgments Act (UDJA) claim

even it is immune from her breach of contract claim.



                                         –20–
      As an initial matter, Amador’s UDJA claim, which seeks to void the contract,

appears inconsistent with her claim for damages resulting from the City’s breach of

the contract. See Sharifi v. Steen Automotive, LLC, 370 S.W.3d 126, 149 (Tex.

App.—Dallas 2012, no pet.) (“Remedies are inconsistent when one of the remedies

results from affirming the transaction and the other results from disaffirming the

transaction.”). However, Amador may simultaneously pursue both claims at this

stage of the litigation. Cf. id. (“A party is entitled to sue and seek damages on

alternative theories but is not entitled to recover on both theories.” (citation and

internal quotation marks omitted)). Accordingly, our determination that the district

court possesses jurisdiction over Amador’s breach of contract claim does not moot

our consideration of whether the court also has jurisdiction over her UDJA claim.

See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion

that . . . addresses every issue raised and necessary to final disposition of the

appeal.”).

      Amador contends that “[p]rivate parties may seek declaratory relief against

state officials who allegedly act without legal or statutory authority,” Texas Nat. Res.

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (plurality op.),

and that “[a] party can maintain a suit to determine its rights without legislative

permission,” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997),

superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little–

Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001); see also City of Seagoville v.
                                         –21–
Lytle, 227 S.W.3d 401, 410 (Tex. App.—Dallas 2007, no pet.) (“Texas courts

distinguish suits to determine a party’s right against a governmental unit from a suit

seeking damages.”).10

         More recently, the Texas Supreme Court examined the intersection of the

foregoing principles with the doctrine of governmental immunity, holding that such

immunity (i) bars suits for retrospective money relief but (ii) does not preclude

prospective injunctive remedies in official capacity suits against government actors

who violate statutory or constitutional provisions. City of El Paso v. Heinrich, 284

S.W.3d 366, 368–69 (Tex. 2009).11 To fall within the “ultra vires” exception set forth

in (ii) above, a suit “cannot be brought against the state, which retains its immunity,

but must be brought against the state actors in their official capacity.” Heinrich, 284

S.W.3d at 373; see also Southwestern Bell Telephone, L.P. v. Emmett, 459 S.W.3d

578, 587 (Tex. 2015) (“For the ultra vires exception to immunity to apply, it must

be proved that the state actor either failed to perform a ministerial task or acted




    10
       In Lytle, we also said that “[a] declaratory judgment action against the government seeking a
declaration of a party’s rights and status under a statute is not barred by governmental immunity.” Id. This
statement was subsequently contradicted by the Texas Supreme Court’s decision in City of El Paso v.
Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009), which we discuss below. See also City of McKinney v.
Hank’s Restaurant Grp., L.P., 412 S.W.3d 102, 111–112 (Tex. App.—Dallas 2013, no pet.) (discussing
such contradiction).
    11
      See also Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 393 (Tex. 2011) (“In Heinrich,
the Court affirmed the rule that suits for declaratory or injunctive relief against a state official to compel
compliance with statutory or constitutional provisions are not suits against the State.”); Hank’s Restaurant
Grp., 412 S.W.3d at 112 (“[I]mmunity does not bar a suit for prospective injunctive relief against
government actors in their official capacity for violating the law.”).
                                                    –22–
without legal authority.”). Since Amador’s claims are brought against the City, not

its officials in their official capacity, the ultra vires exception does not apply.

      Amador also relies on Labrado v. County of El Paso, which declined to apply

governmental immunity to a declaratory judgment action that sought to void

contracts made in violation of Texas competitive bidding laws. See 132 S.W.3d 581,

593–94 (Tex. App.—El Paso 2004, no pet.) (noting that requests for declaratory relief

“[were] not merely disguised attempts to confer jurisdiction over a breach-of-

contract claim”). Unlike in this case, Labrado involved a statute that expressly

waived governmental immunity to enjoin performance of a contract made in

violation of the foregoing laws. See id. (citing LOC. GOV’T. §§ 262.027(a), 262.033).

In addition, at the time of the Labrado decision, governmental immunity was

generally considered waived with respect to UDJA claims. See 132 S.W.3d at 592

(noting that appellee had acknowledged same). Since Labrado, the Texas Supreme

Court has made clear that the UDJA does not contain a general waiver of

governmental immunity, Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d

384, 388 (Tex. 2011), though the statute does provide a limited waiver in particular

cases, such as suits that challenge the validity of an ordinance or statute, Town of

Shady Shores v. Swanson, 590 S.W.3d 544, 552–53 (Tex. 2019); Texas Dept. of

Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011); Heinrich, 284 S.W.3d at 373

n.6 (citing CIV. PRAC. & REM. § 37.006(b)).



                                          –23–
      In response to Amador’s argument, the City notes that “governmental entities

. . . generally are immune from UDJA claims seeking to void contracts.” City of New

Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163, 171 (Tex. App.—Austin 2017,

pet. denied); accord Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d

426, 431–32 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); Mustang Special

Util. Dist. v. Providence Vill., 392 S.W.3d 311, 316–17 (Tex. App.—Fort Worth

2012, no pet.); see also City of Austin v. Util. Assocs., Inc., 517 S.W.3d 300, 312

(Tex. App.—Austin 2017, pet. denied) (“The Texas Supreme Court has historically

regarded these immunity principles as also barring suits to cancel or nullify a

contract made for the benefit of the state.” (citing W.D. Haden Co. v. Dodgen, 158

Tex. 74, 308 S.W.2d 838, 841 (1958))). Based on these authorities, and construing

Amador’s pleadings liberally in her favor, see Hayes, 327 S.W.3d at 116, we

conclude that she has not alleged a UDJA claim for which governmental immunity

has been waived.

      We next consider whether Amador should be given an opportunity to amend

her petition. See Miranda, 133 S.W.3d at 226–27. As explained previously, the UDJA

waives immunity in particular cases, see Sefzik, 355 S.W.3d at 622, and immunity also

does not apply to declaratory or injunctive remedies in official capacity suits against

government actors who violate statutory or constitutional provisions, see Sawyer Tr.,

354 S.W.3d at 393; Heinrich, 284 S.W.3d at 368–69. Amador’s UDJA claim, as

currently pled, does not foreclose the possibility that she could amend her petition
                                         –24–
to cure the jurisdictional defect with respect to this claim. However, the City’s

jurisdictional plea has already notified Amador that her request for declaratory relief

did not “pierce” the City’s governmental immunity. Amador’s amended petition,

filed several months later, alleged no additional facts to support a waiver of

immunity with respect to her UDJA claim. Accordingly, the district court acted

appropriately in dismissing this claim. See Sykes, 136 S.W.3d at 639.

      We affirm the district court’s order granting the City’s plea to the jurisdiction

insofar as it dismissed Amador’s UDJA claim.

                                        III.
                                     Conclusion

      We affirm the district court’s order granting the City’s plea to the jurisdiction

and dismissing Amador’s claims for negligence, fraudulent inducement, and DTPA.

      We likewise affirm the district court’s order granting the City’s plea to the

jurisdiction and dismissing Amador’s claim under the UDJA.

      We reverse the district court’s order granting the City’s plea to the jurisdiction

and dismissing Amador’s claims for breach of contract and related attorney’s fees.

See LOC. GOV’T § 271.153(a)(3) (allowing for “reasonable and necessary attorney’s

fees that are equitable and just” in a breach of contract claim). We remand these

claims for further proceedings consistent with this opinion.

                                            /Bill Pedersen, III//
                                            BILL PEDERSEN, III
190278f.p05                                 JUSTICE

                                         –25–
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                    JUDGMENT

 REBECCA AMADOR, Appellant                       On Appeal from the 14th Judicial
                                                 District Court, Dallas County, Texas
 No. 05-19-00278-CV           V.                 Trial Court Cause No. DC-18-02425.
                                                 Opinion delivered by Justice
 THE CITY OF IRVING, TEXAS,                      Pedersen, III. Justices Osborne and
 Appellee                                        Partida-Kipness participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court’s judgment granting appellee’s plea to the jurisdiction with
respect to (i) appellant’s breach of contract claim, and (ii) appellant’s claim for
attorney’s fees related to her breach of contract claim. In all other respects, the trial
court’s judgment is AFFIRMED. We REMAND this cause to the trial court for
further proceedings consistent with this Court’s opinion.


Judgment entered this 20th day of March 2020.




                                          –26–
