                             NUMBER 13-18-00544-CV

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


CAMERON COUNTY REGIONAL
MOBILITY AUTHORITY,                                                                Appellant,

                                               v.

DAVID GARZA AND DIANE GARZA,                                                      Appellees.


                      On appeal from the 444th District Court
                           of Cameron County, Texas.


                             MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellees David and Diane Garza (the Garzas) sued appellant, the Cameron

County Regional Mobility Authority (CCRMA), asserting claims for inverse condemnation

and breach of contract. 1 CCRMA appeals the trial court’s order denying its plea to the


      1   The Garzas also sued HNTB Corporation and Pete Sepulveda Jr., asserting various claims.
jurisdiction.    In two issues, CCRMA argues the trial court erred in denying its plea

because CCRMA is protected by governmental immunity from the Garzas’ claims. We

reverse, render in part, and remand in part for further proceedings.

                                          I.       BACKGROUND 2

        The West Rail Relocation Project, a joint project between CCRMA and other

governmental and private entities, called for the relocation of railroad lines in Brownsville,

Texas and Matamoros, Mexico. The United States Army Corps of Engineers (the COE)

determined that the new lines would result in permanent impact to .39 acres of United

States waters, including the Resaca del Rancho Viejo 3 and adjacent wetlands. As a

prerequisite to the new construction, the COE required CCRMA to sponsor environmental

mitigation activities to offset the project’s environmental impact.

        Due to the narrow, linear nature of the project, on-site mitigation efforts were not

viable. Therefore, CCRMA pursued off-site mitigation opportunities through its retained

engineer, HNTB Corporation (HNTB), and with the assistance of the Valley Land Fund

(the VLF), a non-profit organization. CCRMA proposed to conduct mitigation activities

on 1.17 acres of property owned by the Garzas, who were seeking to protect and

safeguard the wetland ecosystem on their property. The proposed mitigation site was

located within a portion of the Resaca del Rancho Viejo.                         The Garzas donated a


However, those parties are not before us in this appeal.

        2 The following factual allegations are taken from the Garzas’ live pleading and the exhibits
attached thereto.

         3 “Resacas are former channels of the Rio Grande found in the southern half of Cameron County.”

Charles M. Robinson III, “RESACAS,” HANDBOOK OF TEX. ONLINE, http://www.tshaonline.org/handbook
/online/articles/rbrnp (last visited Sept. 9, 2019). “They are naturally cut off from the river, having no inlet
or outlet.” Id.

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“Permanent Conservation Easement” for the site to the VLF.

      The COE approved CCRMA’s mitigation plan and issued a permit authorizing

construction of the new rail line. The mitigation plan stated that representatives of the

COE, the VLF, and HNTB previously visited the site and “verified sufficient water

availability and the presence of invasive species to merit enhancement activities.” The

required “enhancement activities” consisted of the “removal of invasive [plant] species

and planting of desirable native wetland vegetation to supplement the existing wetland

vegetation.” The plan provided for the following “success criteria”:

      A plant survival survey will be completed 3 months following the completion
      of planting activities. Planting will have been considered successful if 50%
      of the plantings have survived after 3 months. If the target of 50% survival
      is not reached, then the mitigation site will be replanted to the original
      density.

      The success criteria for the mitigation site are as follows: 1) 75% or greater
      areal cover of desirable wetland vegetation with an indicator status of
      facultative (FAC) or wetter, and 2) less than 25% areal cover of invasive
      plant species. The above stated success criteria will be monitored and
      maintained through the 5-year monitoring period as well as at the end of the
      5-year period.

      Following the initial survival survey, the mitigation site will be monitored
      semi-annually for a minimum of 5 years, with monitoring visits conducted
      during the spring and fall seasons. . . . [CCRMA] will submit monitoring
      reports within 30 days of the monitoring visit to the [COE]. . . .

      The mitigation requirement will be considered to be complete when the site
      has met the success criteria 5 years after the initial planting. Should
      mitigation be determined to be unsuccessful by [COE] personnel at the end
      of the monitoring period, [CCRMA] will be required to take necessary
      corrective measures, as approved by the [COE]. Once the corrective
      measures are completed, [CCRMA] will notify the [COE] and a
      determination will be made regarding success of the mitigation.




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CCRMA contracted with HNTB to carry out the work detailed in the mitigation plan and to

prepare the required status reports.

        In their petition, the Garzas allege they were third-party beneficiaries to the

mitigation plan and CCRMA breached the plan by ignoring and failing to perform the

required enhancement activities—the removal of invasive plant species and planting of

native vegetation. They claim CCRMA’s failure in this regard resulted in damage to the

mitigation site and adjoining property, including the killing of fish, destruction of wildlife

habitats, and damage to wetland vegetation. The Garzas further allege that CCRMA did

not comply with the plan’s reporting requirements. The Garzas claim that CCRMA’s

actions constituted a taking of their property without adequate compensation in violation

of the Texas Constitution. Specifically, the Garzas allege that CCRMA failed to perform

a number of actions which would have ensured the success of the mitigation project. 4

        CCRMA filed a plea to the jurisdiction, 5 challenging whether the Garzas’ pleadings

demonstrated the trial court’s subject matter jurisdiction. In particular, CCRMA argued

that the Garzas did not establish a valid inverse condemnation or breach of contract claim;

therefore, CCRMA’s governmental immunity remained intact.                         The Garzas filed a



         4 In particular, the Garzas allege that CCRMA took their property by failing to:       perform due
diligence with respect to selecting the site; perform or ensure the performance of adequate hydrology
studies; perform or ensure the performance of adequate soil and water studies; secure a water/hydrology
plan; provide water to the mitigation site; retain reputable and qualified contractors; properly monitor the
actions taken by HNTB and the contractors; properly monitor the project; ensure proper removal of invasive
species both within and outside the mitigation site; control the spreading of the invasive species; monitor
the property outside the mitigation site to ensure that it was not damaged; and remedy the destruction and
damage caused to the mitigation site when the mitigation plan was unsuccessful.

         5 CCRMA filed a pleading entitled “Cameron County Regional Mobility Authority’s Second

Amended Plea to the Jurisdiction, Motion to Dismiss, Special Exceptions, and Original Answer.” Only the
trial court’s denial of the plea to the jurisdiction is at issue in this appeal.


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response, CCRMA a reply, and the Garzas a sur-reply. Following a hearing, the trial

court denied CCRMA’s plea to the jurisdiction. This interlocutory appeal followed. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

                                    II.      STANDARD OF REVIEW

        A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject

matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). CCRMA’s plea to the jurisdiction is based

on governmental immunity. 6 Governmental immunity deprives a trial court of jurisdiction

over lawsuits in which the State’s political subdivisions have been sued, unless their

immunity from suit is waived by the Legislature. Id.; Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 636 (Tex. 2012). Therefore, governmental immunity is properly

asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225–26. Whether the trial

court has subject matter jurisdiction is a question of law we review de novo. Id. at 226.

        It is the plaintiff’s burden to plead facts affirmatively demonstrating the trial court’s

subject matter jurisdiction. Id. When a plea to the jurisdiction challenges the pleadings,

we determine if the plaintiff has alleged facts that affirmatively demonstrate the court's

jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852




         6 Governmental immunity is a common law doctrine protecting governmental entities from suit,

similar to sovereign immunity. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011).
While sovereign immunity protects the State and its various agencies from suit, governmental immunity
protects the State’s political subdivisions from suit. Id. As a political subdivision of the state, CCRMA is
generally protected from suit by governmental immunity. See TEX. TRANSP. CODE ANN. § 370.032(a).

                                                     5
S.W.2d 440, 446 (Tex. 1993)).           We construe the pleadings liberally in favor of the

plaintiffs and look to the pleaders’ intent. Id. If the pleadings do not contain sufficient

facts to affirmatively demonstrate jurisdiction but do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff

should be afforded the opportunity to amend.                 Id. at 226–27.       If the pleadings

affirmatively negate jurisdiction, then the plea may be granted without affording the

plaintiff this opportunity. Id. at 227.

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

consider the relevant evidence submitted by the parties to determine if a fact issue exists.

Id. A defendant challenging a jurisdictional fact must satisfy the same initial burden as

in a “traditional” summary judgment, and judgment is proper in such instance only if the

plaintiff cannot present controverting evidence raising a genuine issue of material fact.

Id. at 227–28.

       CCRMA’s plea to the jurisdiction exclusively challenged whether the Garzas

pleaded facts affirmatively demonstrating the trial court’s subject-matter jurisdiction. The

plea was not supported by evidence. However, CCRMA raises various evidentiary-

based arguments for the first time on appeal. 7 While jurisdictional issues generally can

be raised sua sponte or for the first time on appeal, a defendant appealing the denial of

a plea to the jurisdiction may not urge an evidentiary challenge for the first time on appeal.

See Hendee v. Dewhurst, 228 S.W.3d 354, 375 (Tex. App.—Austin 2007, pet. denied)



       7 For instance, CCRMA argues that the Garzas “failed to establish that any action taken by

[CCRMA] caused any taking or damage to the property,” citing evidence indicating that external factors
caused the mitigation site to dry up.

                                                  6
(explaining that permitting a challenge to jurisdictional evidence to be raised for the first

time on appeal would circumvent the procedural safeguards established by Miranda).

       We also observe that CCRMA’s evidentiary arguments cite primarily to the record

associated with its no-evidence motion for summary judgment and the response thereto,

which remain pending below.          A trial court’s subject-matter jurisdiction cannot be

challenged in a no-evidence summary judgment motion because this practice improperly

shifts the evidentiary burden to the plaintiff to fully marshal their evidence simply to

establish jurisdiction. Thornton v. Ne. Harris Cty. Mun. Util. Dist. 1, 447 S.W.3d 23, 40

(Tex. App.—Houston [14th Dist.] 2014, pet. denied). Other record references relate to

filings which are not relevant to the jurisdictional challenge, such as an exhibit attached

to a response to a motion to exclude expert testimony. For these reasons, we limit our

review to the adequacy of the Garzas’ pleadings.

                              III.     INVERSE CONDEMNATION

       By its first issue, CCRMA argues that the Garzas’ pleadings do not establish a

cognizable inverse condemnation claim. As a result, CCRMA maintains that the Garzas’

pleadings fail to affirmatively demonstrate a waiver of its immunity from suit.

A.     Applicable Law

       Article I, § 17 of the Texas Constitution waives governmental immunity for valid

inverse condemnation claims.         Gen. Servs. Comm’n v. Little–Tex Insulation Co., 39

S.W.3d 591, 598 (Tex. 2001); City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex. App.—

Dallas 2006, no pet.). Inverse condemnation occurs when property is taken for public

use without proper condemnation proceedings and the property owner attempts to



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recover compensation for that taking. Blanton, 200 S.W.3d at 271 (citing City of Abilene

v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971)). An inverse condemnation may

occur when a governmental entity physically appropriates or invades the property, or

when it unreasonably interferes with the landowner’s right to use and enjoy the property,

such as by restricting access or denying a permit for development. See Westgate, Ltd.

v. State, 843 S.W.2d 448, 452 (Tex. 1992).

       To properly assert an inverse-condemnation claim against a governmental entity,

a party must plead facts establishing the following elements: (1) the governmental entity

intentionally performed an act in the exercise of its lawful authority; (2) that resulted in the

taking, damaging, or destruction of the party’s property; (3) for public use. Little–Tex, 39

S.W.3d at 598. Whether particular facts are sufficient to allege a constitutional taking is

a question of law. Id.; Blanton, 200 S.W.3d at 272. A plaintiff must allege a valid inverse

condemnation claim to demonstrate a waiver of a governmental entity’s immunity from

suit. Blanton, 200 S.W.3d at 272.

B.     Analysis

       CCRMA argues that the Garzas’ pleadings fail to establish that CCRMA intended

to take the Garzas’ property.

       A governmental entity cannot be liable for a taking if it committed no intentional

acts. Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 800 (Tex. 2016). The

Garzas’ inverse-condemnation claim is premised entirely on allegations that CCRMA

failed to take certain actions. See supra note 5. Many of the alleged failures concern

actions required by the mitigation plan, such as removing invasive plant species or



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planting native vegetation. Other allegations implicate CCRMA’s failure to take actions

that might have ensured the success of the mitigation project, but were not otherwise

required by the plan, such as ensuring adequate hydrology studies for the site. The

Garzas, however, allege no affirmative action by CCRMA that resulted in damage to their

property. “Only affirmative conduct by the government will support a takings claim.”

Kerr, 499 S.W.3d at 799. In other words, governmental inaction is not enough. City of

Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); City of Socorro v. Campos, 510 S.W.3d

121, 127 (Tex. App.—El Paso 2016, pet. denied).

       The Texas Supreme Court analyzed an alleged taking by government inaction in

Kerr. 499 S.W.3d at 795. In that case, four hundred homeowners sued Harris County

and the Harris County Flood Control District asserting a takings claim.             Id.   The

homeowners alleged the flooding of their homes was caused by the County’s approval of

upstream development and its failure to fully implement a flood-control plan known as the

Pate Plan, which the County approved, and authorized the District to implement, over

fifteen years before the lawsuit was filed. Id. at 796–97. Regarding the County’s failure

to implement the Pate Plan, the Texas Supreme Court explained, “the law does not

recognize takings liability for a failure to complete the Pate Plan, despite the homeowners’

attempt to somehow bundle that inaction with the affirmative conduct of approving

development.” Id. at 800. The Court further stated, “Because inaction cannot give rise

to a taking, we cannot consider any alleged failure to take further steps to control flooding,

such as the failure to complete the Pate Plan.” Id. at 805.




                                              9
       In the present case, the Garzas’ inverse-condemnation claim rests entirely on

CCRMA’s alleged failure to do what was required by the mitigation plan or to take other

actions which would have ensured the plan’s success. 8 The Garzas do not allege an

intentional act by CCRMA, a necessary element for their inverse condemnation claim.

See id.; see also Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no

pet.) (concluding that the plaintiff’s allegation that property was damaged by the city’s

failure to maintain and repair faulty pipes did not demonstrate a valid takings claim

because it was based only on “negligent omissions”).                        Because an inverse-

condemnation claim cannot be premised on governmental inaction, we conclude that the

Garzas’ pleadings fail to affirmatively demonstrate the trial court’s jurisdiction.               See

Miranda, 133 S.W.3d at 226. We sustain CCRMA’s first issue.

       We must now decide whether the Garzas should be afforded an opportunity to

amend their pleadings as to the takings claim. Generally, “‘a plaintiff may stand on his

pleadings in the face of a plea to the jurisdiction unless and until a court determines that

the plea is meritorious.’” Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex.

2007) (quoting lower court’s opinion). Where, as here, a trial court denies a plea to the

jurisdiction, but an appellate court holds that the plaintiff’s pleadings are deficient, the

plaintiff is entitled to a remand if the defects are curable. Id. at 839–40. We have

concluded that the Garzas’ pleadings do not allege sufficient facts to demonstrate a valid

inverse-condemnation claim. However, the pleadings do not affirmatively demonstrate



         8 The Garzas maintain on appeal that CCRMA acted affirmatively in abandoning the mitigation

project. However, such an allegation is simply another way of claiming that CCRMA failed to perform the
actions required by the mitigation plan.

                                                  10
incurable defects in jurisdiction. Therefore, on remand, the trial court must afford the

Garzas the opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226–27.

                               IV.    BREACH OF CONTRACT

       By its second issue, CCRMA argues that the Garzas’ pleadings do not establish

the statutory waiver of immunity for breach-of-contract actions found in § 271.152 of the

Texas Local Government Code.

A.     Applicable Law

       Texas Local Government Code § 271.152 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.

TEX. LOC. GOV’T CODE ANN. § 271.152.         A “[c]ontract subject to this subchapter” is

defined as: “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). According to its plain terms, the

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

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

134 (Tex. 2011). For a contract to be subject to § 271.152’s waiver of immunity, the

contract must: (1) be in writing, (2) state the essential terms of the agreement, (3) be for

the provision of goods or services to the local governmental entity, and (4) be executed

on behalf of the local governmental entity. Id. at 135.




                                            11
B.      Analysis

        We first address CCRMA’s contention that the mitigation plan does not constitute

a contract for “goods or services” as required to invoke the statutory waiver of immunity. 9

The Garzas respond that the mitigation plan was a contract for services because the plan

provided CCRMA “a means by which CCRMA could compensate [the Garzas] for its

disturbance of land in constructing its railroad.”

        Chapter 271 does not define “services,” but the supreme court has interpreted the

term in this context as “broad enough to encompass a wide array of activities.” Kirby

Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010); City of

Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 566 (Tex. App.—Houston [14th Dist.]

2015, pet. denied). “The term ‘includes generally any act performed for the benefit of

another under some arrangement or agreement whereby such act was to have been

performed.’” Lubbock Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C.,

442 S.W.3d 297, 303 (Tex. 2014) (quoting Kirby Lake, 320 S.W.3d at 839). In other

words, “there must be some obligation to perform.” Kirby Lake, 320 S.W.3d at 839.

Further, the services must be provided directly to the governmental entity. See id. at

838. The waiver of immunity does not extend to contracts in which the governmental

entity received only an indirect, attenuated benefit. Church & Akin, 442 S.W.3d at 303

(citing Kirby Lake, 320 S.W.3d at 839).



        9 We assume arguendo that the Garzas are third-party beneficiaries to the mitigation plan. See
Galveston Indep. Sch. Dist. v. Clear Lake Rehabilitation Hosp., L.L.C., 324 S.W.3d 802, 810 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (“[W]hen a governmental entity and a contracting party enter into a
contract subject to subchapter I and denominate a third-party beneficiary of that contract, the third-party
beneficiary’s claim for breach of contract falls within the waiver of immunity authorized under section
271.152.”).

                                                   12
       Here, the purported contract for goods or services is the mitigation plan. The plan,

which is attached to the Garzas’ pleadings, see TEX. R. CIV. P. 59, details the

enhancement activities for which CCRMA is responsible.                   However, the plan

contemplates no services which are to be provided to CCRMA. Furthermore, the plan

contains no language supporting the Garzas’ contention that it was intended as “a means

by which CCRMA could compensate [the Garzas] for its disturbance of land in

constructing its railroad.” And even if the plan could be construed in such a way, the

contract would still not require the provision of goods or services to CCRMA. To qualify

as a contract under § 271.152, the plan must have given CCRMA a right to receive

services because otherwise the benefits incidentally accruing to it would be too “indirect”

and “attenuated” to bring the contract under the Act. See Church & Akin, 442 S.W.3d at

303; Kirby Lake, 320 S.W.3d at 839. Accordingly, we conclude that the mitigation plan

does not constitute a contract for goods or services as contemplated by Chapter 271 of

the local government code. See Church & Akin, 442 S.W.3d at 303 (holding that the

plaintiff’s operation of a marina on property leased from the county provided only an

indirect benefit to the water district); see also Partners Dewatering Int’l, L.C. v. City of Rio

Hondo, No. 13-13-00340-CV, 2015 WL 3637853, at *1–2 (Tex. App.—Corpus Christi–

Edinburg June 11, 2015, pet. denied) (mem. op.) (holding that, where the contract

allowing the plaintiff to operate a liquid dewatering facility on the premises of a city-owned

wastewater-treatment plant also required plaintiff to construct a road on the city’s

premises to permit plaintiff’s trucks to access facility, the road provided only an indirect

and attenuated benefit to the city and did not waive immunity).



                                              13
       Unlike the defects for the Garzas’ inverse-condemnation claim, the nature of the

contract presents an incurable defect, which affirmatively negates jurisdiction.       See

Richardson Hosp. Auth. v. Duru, 387 S.W.3d 109, 113 (Tex. App.—Dallas 2012, no pet.)

(concluding that the plaintiff’s pleadings affirmatively negated jurisdiction where a breach

of contract action was premised on an agreement by which the plaintiff received services

from the governmental entity, but no services were provided to the governmental entity).

Therefore, the trial court erred in not granting CCRMA’s plea to the jurisdiction for this

claim. See Miranda, 133 S.W.3d at 227. We sustain CCRMA’s second issue.

                                    V.     CONCLUSION

       We reverse the trial court’s order denying CCRMA’s plea to the jurisdiction, render

judgment dismissing the Garzas’ breach-of-contract claim for want of subject matter

jurisdiction, and remand the case to the trial court for further proceedings consistent with

this memorandum opinion.

                                                               LETICIA HINOJOSA
                                                               Justice

Delivered and filed the
10th day of October, 2019.




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