Reversed and Remanded and Opinion filed April 25, 2013.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-12-00198-CV

      ZULEIMA OLIVARES. INDIVIDUALLY AND AS THE
REPRESENTATIVE OF THE ESTATE OF PEDRO OLIVARES, JR., AND
               PEDRO OLIVARES, Appellants

                                         V.

        BROWN & GAY ENGINEERING, INC., AND MIKE STONE
                 ENTERPRISES, INC., Appellees

                    On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2008-19417

                                  OPINION
      Appellants Zuleima Olivares, individually and as the representative of the
estate of Pedro Olivares, Jr., and Pedro Olivares appeal the trial court’s granting of
appellees Brown & Gay Engineering, Inc.’s (Brown & Gay) and Mike Stone
Enterprises, Inc.’s (MSE) pleas to the jurisdiction.       In their pleas, appellees
asserted that they are immune from suit based on their status as governmental
employees, as defined in the Texas Tort Claims Act (TTCA), sued in their official
capacity. Appellants argue that the trial court erred in granting appellees’ pleas to
the jurisdiction because appellees have not shown that they meet the statutory
definition of governmental employees. We reverse and remand for proceedings
consistent with this opinion.

                  I.       FACTUAL AND PROCEDURAL BACKGROUND

      On January 1, 2007, Pedro Olivares, Jr. and his wife were traveling
westbound on the Westpark Tollway near Dairy Ashford Road in Harris County
when they were struck by a vehicle driven by Michael Ladson. According to
appellants, Ladson was traveling on the Tollway in the wrong direction after
entering the westbound lanes near Gaston Road in Fort Bend County,
approximately eight and one-half miles from the accident scene. Pedro Olivares,
Jr. sustained severe bodily injuries resulting in death.

      Appellants asserted negligence and premises defect claims against multiple
defendants. These claims involved allegations that the various defendants failed to
design and install proper signs, warning flashers, and traffic-control devices near
the area where Ladson entered the Tollway. This court previously addressed the
trial court’s denial of two other co-defendants’ (Fort Bend County Toll Road
Authority (FBCTRA) and Texas Department of Transportation) pleas to the
jurisdiction. Fort Bend Cty. Toll Rd. Auth. v. Olivares, 316 S.W.3d 114 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (reversing and remanding in part, and
reversing and rendering in part)1; Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89
(Tex. App.—Houston [14th Dist.] 2010, no pet.) (affirming in part, reversing and
remanding in part, and reversing and rendering in part). After remand, those
defendants were non-suited.2           The only remaining defendants in the case are

      1
          We cite this case as “Olivares 1.”
      2
          Defendants Fort Bend County, Harris County, and Harris County Toll Road Authority
                                               2
Brown & Gay and MSE.

       In their third amended petition, appellants allege that Brown & Gay, a Texas
engineering company that performed the design work on the Tollway pursuant to
agreements with, among others, FBCTRA, failed to properly design signs and
traffic layouts in accordance with the Texas Manual on Uniform Traffic Control
Devices and breached the engineering standard of care. Appellants also allege that
MSE, a private Texas company (also d/b/a Professional Project Management
Services) that contracted with FBCTRA to operate the Tollway, negligently
delayed and denied safety recommendations and requests from professional
engineers to install lights that would have improved safety.

       Both Brown & Gay and MSE filed pleas to the jurisdiction based on
governmental immunity, arguing that they constitute governmental employees, as
defined in the TTCA, sued in their official capacity. The trial court granted Brown
& Gay’s and MSE’s jurisdictional pleas. Appellants now appeal the trial court’s
granting of appellees’ pleas.

                         II.       GOVERNMENTAL IMMUNITY

       Generally, in Texas, a governmental unit is immune from tort liability and
suit unless the Legislature has waived immunity. City of Galveston v. State, 217
S.W.3d 466, 468 (Tex. 2007); MBP Corp. v. Bd. of Trustees of Galveston Wharves,
297 S.W.3d 483, 487 (Tex. App.—Houston [14th Dist.] 2009, no pet.).3 FBCTRA


also were non-suited.
       3
         The TTCA provides a limited waiver of governmental immunity for “personal injury
and death so caused by a condition or use of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant according to Texas
law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2012). One exception to waiver
is where a claim arises from a governmental unit’s discretionary act. Id. § 101.056; Tex. Dept. of
Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). Similarly, the TTCA does not waive
governmental immunity as to claims arising from the initial failure to place a traffic sign if the
                                                3
is a local government corporation and, therefore, a governmental unit for purposes
of the TTCA. Olivares 1, 316 S.W.3d at 127–28.4

       When a governmental employee files a plea to the jurisdiction, he invokes
the immunity from suit held by the government itself.                See Texas A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). The TTCA defines an
“employee” for purposes of governmental immunity:

       [A] person, including an officer or agent, who is in the paid service of
       a governmental unit by competent authority, but does not include an
       independent contractor, an agent or employee of an independent
       contractor, or a person who performs tasks the details of which the
       governmental unit does not have the legal right to control.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (West 2012).

       Under the TTCA, a person is not an employee of a governmental unit if the
person is an independent contractor or “performs tasks the details of which the
governmental unit does not have the legal right to control.” See Murk v. Scheele,
120 S.W.3d 865, 866 (Tex. 2003) (quoting TEX. CIV. PRAC. & REM. CODE ANN. §
101.001(2)). The statutory definition requires both “control and paid employment
to invoke the [TTCA]’s waiver of immunity.” See Adkins v. Furey, 2 S.W.3d 346,


failure is tied to a discretionary decision, or claims arising from the condition of a traffic sign
unless the condition is not corrected within a reasonable time after notice. TEX. CIV. PRAC. &
REM. CODE ANN. § 101.060(a)(1–2); State ex rel. State Dep’t of Highways and Pub. Transp. v.
Gonzalez, 82 S.W.3d 322, 326–27 (Tex. 2002). However, “[a] governmental unit’s negligence
in implementing a formulated policy . . . is not a discretionary function.” Olivares 1, 316 S.W.3d
at 122.
       4
          In Olivares 1, we concluded that appellants’ pleadings against FBCTRA with regard to
traffic-control device deficiencies neither affirmatively demonstrated nor affirmatively negated
subject-matter jurisdiction where they “do not specify whether the traffic-control devices were
inadequate, or the warning signs were negligently located, because of FBCTRA’s negligent
implementation of the construction plans.” 316 S.W.3d at 124. Therefore, we reversed the
denial of FBCTRA’s plea to the jurisdiction and remanded to allow amendment of the pleadings.
Id.

                                                4
348 (Tex. App.—San Antonio 1999, no pet.) (emphasis in original).

      In determining whether a person is an employee or an independent
contractor, the focus is on who has the right to control the details of the work.
Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002)
(citing Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990));
Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.—Houston [14th Dist.] 2000,
no pet.). An independent contractor is one who, in pursuit of an independent
business, undertakes specific work for another using his own means and methods
without submitting to the control of the other person as to the details of the work.
Indus. Indem. Exch. v. Southard, 160 S.W.2d 905, 907 (Tex. 1942). In contrast, an
“employer controls not merely the end sought to be accomplished, but also the
means and details of its accomplishment.” Limestone, 71 S.W.3d at 312 (citing
Thompson, 789 S.W.2d at 278).

      A party can prove right to control in two ways; first, by evidence of a
contractual agreement that explicitly assigns a right to control; and second, in the
absence of such contractual agreement, by evidence of actual control over the
manner in which the work was performed. Dow Chem. Co. v. Bright, 89 S.W.3d
602, 606 (Tex. 2002). A written contract expressly providing for an independent-
contract relationship is determinative of the parties’ relationship in the absence of
extrinsic evidence indicating the contract was subterfuge, the hiring party exercised
actual control in a manner inconsistent with the contract, or if the written contract
has been modified by a subsequent agreement. Weidner, 14 S.W.3d at 373.

      Courts may consider several “right to control” factors in determining
whether someone is an independent contractor, including: (1) the independent
nature of the person’s business; (2) the person’s obligation to furnish necessary
tools, supplies, and material to perform the job; (3) the right to control progress of

                                          5
the work, except as to final results; (4) the time for which the person is employed;
and (5) the method of payment, whether by time or by the job. Texas A & M Univ.
v. Bishop, 156 S.W.3d 580, 584–85 (Tex. 2005) (citing Southard, 160 S.W.2d at
906) (concluding as matter of law that director of university play and wife were
independent contractors, not employees, per TTCA).          “[T]he type of control
normally exercised by an employer include[s] 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, 789 S.W.2d at 278–79.
Exercise of the right to control is ordinarily a question of fact, but whether a
contract gives the right to control is generally a question of law. See Bright, 89
S.W.3d at 606. However, if the controlling facts are undisputed, whether the
relationship is that of an employee or of an independent contractor is a question of
law. Bishop, 156 S.W.3d at 585.

                      III.     PLEA TO THE JURISDICTION

      Governmental immunity from suit defeats a trial court’s subject matter
jurisdiction and thus properly is asserted in a plea to the jurisdiction. Johnson v.
City of Bellaire, 352 S.W.3d 260, 263 (Tex. App.—Houston [14th Dist.] 2011, pet.
filed) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999)). A
plea challenging the trial court’s jurisdiction raises a question of law that we
review de novo. Id. (citing State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007)).
In a plea to the jurisdiction, a party may challenge the pleadings or the existence of
jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226–27 (Tex. 2004).

      When, as here, a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties. Id. at

                                          6
227. The standard of review for a jurisdictional plea based on evidence “generally
mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”
Id. at 228.   Under this standard, we credit as true all evidence favoring the
nonmovant and draw all reasonable inferences in the nonmovant’s favor. Id. The
movant must assert the absence of subject-matter jurisdiction and present
conclusive proof that the trial court lacks subject-matter jurisdiction. Id. (“By
requiring the state to meet the summary judgment standard of proof in cases like
this one, we protect the plaintiffs from having to put on their case simply to
establish jurisdiction.” (internal quotation marks and citation omitted)). If the
movant discharges this burden, the nonmovant must present evidence sufficient to
raise a material issue of fact regarding jurisdiction, or the plea will be sustained.
Id. However, as with a traditional motion for summary judgment, if the movant
fails to present conclusive proof of facts negating subject-matter jurisdiction, the
burden does not shift to the nonmovant to establish the existence of an issue of
material fact. See id. Thus, as the movants here, MSE and Brown & Gay have the
burden to establish their entitlement to governmental immunity as governmental
employees. See id.
                              IV.       ANALYSIS
      A. Whether MSE is an independent contractor or FBCTRA’s employee
      In support of its plea, MSE attached the consulting agreement between
FBCTRA and Michael E. Stone d/b/a Professional Management Services.
According to the consulting agreement, FBCTRA retained MSE “as an
independent contractor, and not as an employee.” MSE agreed to “devote his best
efforts to his position as an independent consultant.” MSE also agreed to act as
FBCTRA’s “representative in construction management activities” for the Tollway
project, and assist FBCTRA in coordinating consultant and contractor services “to
protect the best interest of” FBCTRA in the construction of the Tollway project.
                                         7
The scope of MSE’s consulting services included: coordinating and facilitating
communications among the various entities involved; monitoring, reviewing, and
reporting to FBCTRA on construction management-related activities; and
recommending actions to FBCTRA for construction management-related activities.
FBCTRA agreed to pay MSE “at the rate of $135.00 per hour payable monthly, but
only if services are actually rendered hereunder.” Per the contract, MSE was not
entitled to participate in any benefit programs for FBCTRA employees, such as
medical and disability benefits, pension, profit-sharing, or other fringe benefits.
         MSE also attached Michael Stone’s affidavit to its plea. In his affidavit,
Stone, the President of MSE d/b/a Professional Project Management Services,
described how MSE entered into the consulting agreement with FBCTRA, and its
terms.        Stone also stated that because FBCTRA did not have any full-time
employees, only a board of directors, FBCTRA “delegated the responsibilities of
overseeing the construction and management of the Tollway to MSE.” Stone
further stated that “[a]ll decisions made or actions performed in connection with
MSE’s work on the Tollway had to be approved by FBCTRA’s board,” “MSE’s
activities and work concerning the Tollway were controlled and directed by
FBCTRA,” and “MSE did not have any independent autonomy or control over the
Tollway.” Finally, Stone stated that all of MSE’s work occurred in the course and
scope of the contract, in FBCTRA’s paid service, and under FBCTRA’s control.
         To their response, appellants attached an excerpt from Stone’s deposition in
which Stone indicated that he was not an employee of FBCTRA or an agent for
Fort Bend County or FBCTRA.
         Relying on Farlow v. Harris Methodist Fort Worth Hospital,5 appellants
argue that the statement in the consulting agreement between FBCTRA and MSE

         5
             284 S.W.3d 903, 911 (Tex. App.—Fort Worth 2009, pet. denied).

                                                 8
that MSE is retained as an independent contractor is determinative of the parties’
relationship.    Appellants also argue that nothing in the consulting agreement
reflects any retention by FBCTRA of the right to control the details of MSE’s
work, and that MSE’s attempt to show actual control by FBCTRA based on
Stone’s conclusory affidavit “should be discarded and given no weight.” Further,
appellants contend that, during Stone’s deposition, Stone stated he was not an
employee of FBCTRA or an agent of Fort Bend County or FBCTRA, which
statements qualify as judicial admissions and thus conclusively disprove that MSE
is entitled to governmental immunity.6
       MSE asserts that, despite its use of the “label” of independent contractor, the
parties’ contract “places control over the work squarely in the hands of FBCTRA.”
MSE contends that, per the contract, MSE is to act as FBCTRA’s “representative”
in construction management activities; “coordinate and facilitate communications
between [FBCTRA]” and engineers, designers, and contractors; “monitor, review
and report to [FBCTRA] and recommend actions”; and “protect the best interest of
[FBCTRA]” in the construction of the Tollway. MSE argues the contract gives
MSE no authority to make decisions, and alleges in Stone’s affidavit that all
control over the decisions for which MSE was providing consulting services
remained with FBCTRA’s board of directors, and all the work performed by MSE
was controlled by FBCTRA.
       We conclude that MSE did not discharge its burden to show that MSE was
an employee of FBCTRA, and thus did not present conclusive proof that the trial

       6
          Although Stone stated that he was not an employee or agent of FBCTRA, the deposition
excerpt relied on by appellants does not show that Stone specifically admitted he served as an
independent contractor under the contract. Nor does the excerpt address any contractual right to
control by FBCTRA or any instances where FBCTRA actually controlled the details of MSE’s
work. However, because we conclude MSE has not met its burden to show that it was a
governmental employee of FBCTRA, we need not decide whether Stone’s statements qualify as
judicial or quasi-judicial admissions to finally dispose of this issue. See TEX. R. APP. P. 47.1.

                                               9
court lacks subject-matter jurisdiction.       In section 1 titled “Consulting
Relationship,” the consulting agreement between MSE and FBCTRA expressly
provides that Stone d/b/a Professional Project Management Services is an
independent contractor:

      Authority hereby retains Consultant, and Consultant hereby agrees to
      be retained by Authority, as an independent contractor, and not as an
      employee.

(Emphasis added).     Such express language is ordinarily determinative of the
parties’ relationship unless “other contract language evidences such a right of
control that the relationship is actually that of employer/employee.” Farlow, 284
S.W.3d at 911; see Weidner, 14 S.W.3d at 374.          Here, none of the contract
language relied on by MSE supports an employment relationship. Although the
contract outlines what consulting services MSE is obligated to perform, FBCTRA
does not retain any right to control the details of how MSE performs its various
consulting services. Compare Farlow, 284 S.W.3d at 913–17 (considering various
contractual obligations imposed on doctor by hospital, and concluding no fact issue
was raised on whether contract stating that doctor was independent contractor of
hospital was sham), with Weidner, 14 S.W.3d at 374–75 (concluding, despite
independent contractor status expressly outlined in initial contract, that subsequent
contract modified relationship to one of employment where it “quite rigidly
dictated the ‘who,’ ‘what[,]’ ‘where,’ ‘when,’ as well as other material details of
[the] work”).

      While the nature of MSE’s work appears to involve recommending
decisions and actions on the Tollway project, instead of ultimately making or
approving those decisions and actions, this does not amount to FBCTRA’s
retention or exercise of any right to control the progress or methods of MSE’s


                                         10
work as an “independent consultant.” At the most, this indicates that FBCTRA
had control over the end results of MSE’s consulting work on the Tollway. See
Bishop, 156 S.W.3d at 584–85 (concluding director of university play and wife
were independent contractors, not university employees, where university’s
“approval of the script did not go beyond dictating the final result of [their]
work”); Limestone, 71 S.W.3d at 312 (concluding driver was independent
contractor; although limestone distributor dictated where to pick up and drop off
loads, driver “had broad discretion in how to do everything else”). For the same
reason, the allegations in Stone’s affidavit that FBCTRA’s board had to approve all
the Tollway project decisions and that MSE did not have “independent autonomy
or control over the Tollway” do not raise a fact issue. And Stone’s deposition
testimony indicates that Stone, president of MSE, did not view himself as an
employee or agent of FBCTRA.

      With regard to Stone’s statements in his affidavit that “[a]t all times, MSE’s
activities and work concerning the Tollway were controlled and directed by
FBCTRA” and that “[a]ll of the work performed by MSE in connection with the
Tollway occurred . . . under the control of the FBCTRA,” these are conclusory
statements because they do not provide the underlying facts to support the
conclusion that FBCTRA controlled all of MSE’s work.             See Dolcefino v.
Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied). Other than repeating the contractual terms and stating that FBCTRA’s
board had to approve final decisions with regard to Tollway work, Stone states no
facts—such as describing specific instances or examples of conduct by FBCTRA
whereby FBCTRA exercised actual control over the details of MSE’s work during
the Tollway project—upon which he based his conclusion that all of MSE’s work
was controlled by FBCTRA. See CA Partners v. Spears, 274 S.W.3d 51, 64 (Tex.


                                        11
App.—Houston [14th Dist.] 2008, pet. denied). “Nowhere does [Stone] provide
readily controvertible facts personally known to him, much less link his conclusion
to these facts.” See id. Conclusory affidavit testimony is substantively defective,
is not sufficient to raise fact issues, and amounts to no evidence.7 See Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232–33 (Tex.
2004); Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Thus, MSE has
provided no extrinsic evidence of instances of actual control by FBCTRA
sufficient to show that the parties’ true agreement was one of employment. See
Weidner, 14 S.W.3d at 373.

       Finally, the only “right to control” factor arguably weighing in MSE’s favor
is that MSE was to be paid hourly. However, the terms of MSE’s compensation
also indicated that MSE would be paid “only if services are actually rendered”
within the given month. Further, the contract expressly prohibited MSE from
participating in or receiving any benefits under any programs for FBCTRA
employees. See Limestone, 71 S.W.3d at 312–13 (considering that driver held to
be independent contractor received no pay if there was no work and did not receive
employee benefits).

       After reviewing the record evidence in the light most favorable to appellants
and drawing all reasonable inferences in their favor, we conclude that MSE has not
met its burden to present conclusive proof of facts regarding FBCTRA’s right to
control the details of MSE’s work sufficient to negate subject-matter jurisdiction
here. See Miranda, 133 S.W.3d at 227–28. In addition, because the controlling
facts are undisputed and only one reasonable conclusion can be inferred, we

       7
          Although appellants did not object below, objections to substantive defects can be
raised for the first time on appeal and are not waived by the failure to obtain a ruling from the
trial court. See McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied).

                                               12
conclude as a matter of law that MSE’s relationship with FBCTRA is that of an
independent contractor. See Bishop, 156 S.W.3d at 585. Therefore, we sustain
appellants’ first issue.

         B. Whether Brown & Gay is an independent contractor or FBCTRA’s
            employee

         In support of its plea, Brown & Gay attached the engineering services
agreement between FBCTRA and Brown & Gay. Pursuant to the agreement,
Brown & Gay was to perform professional engineering services as the general
engineering consultant on the Tollway extension project. Brown & Gay agreed to
function as FBCTRA’s representative solely and exclusively for its benefit. The
contract provided that “[a]ll services rendered by the Engineer under this
Agreement shall be performed under the supervision of the FB[C]TRA.” Brown &
Gay further agreed to render its services in accordance with generally accepted
professional engineering standards. The scope of services was outlined in an
attachment to the contract; the work generally consisted of “providing program
management; design management engineering services for the planning and design
of the Project; plans, specifications and estimates for various engineering tasks;
and Construction Phase Services for observing and reporting construction
activities.” One of Brown & Gay’s specific tasks was to “prepare drawings,
specifications and details for all signs” for the Tollway project. FBCTRA agreed
to compensate Brown & Gay based on project cost estimates and hourly billing
rates for various levels of Brown & Gay personnel, up to a maximum of just over
$4 million for the Tollway project. The contract outlined the timetable for Brown
& Gay’s performance of its services in three phases, plus a “Contract Closeout”
phase.     Brown & Gay agreed to “furnish and maintain, at its own expense,
adequate and sufficient personnel and equipment,” “transportation, supplies, and

                                       13
materials” to perform its services. Pursuant to the contract, Brown & Gay agreed
to remove any of its employees “who, in the opinion of the FB[C]TRA, is
incompetent or by his conduct becomes detrimental to the Project.” Brown & Gay
also agreed to obtain and maintain various types of insurance, and to indemnify
FBCTRA for certain third-party claims.

      Brown & Gay also attached to its plea the affidavit of Gary Gehbauer, who
was the Deputy Program Manager on the Tollway project.              In his affidavit,
Gehbauer described how Brown & Gay entered into the engineering services
contract and its terms. Gehbauer stated that because FBCTRA did not have any
full-time employees, only a board of directors, FBCTRA “delegated the
responsibilities of . . . designing road signs and traffic striping in connection with
the Westpark Toll Road Project” to Brown & Gay. Gehbauer further stated that
“[a]ll decisions made or actions performed in connection with [Brown & Gay’s]
work on the [Tollway] Project had to be approved by FBCTRA’s Board,” “[Brown
& Gay’s] activities and work concerning the [Tollway] Project were controlled by
the FBCTRA,” and “[Brown & Gay] did not have any independent autonomy or
control over the Project.” Finally, Gehbauer stated that all Brown & Gay’s work
occurred in the course and scope of the contract, in FBCTRA’s paid service, and
under FBCTRA’s “control and supervision.”

      To their response, appellants attached excerpts from Gehbauer’s deposition.
In his deposition, Gehbauer indicated that only Brown & Gay employees were
responsible for traffic engineering and signage on the Tollway project. One Brown
& Gay employee, Federico Mendoza, was the lead of Brown & Gay’s traffic group
and “the engineer responsible for the striping and the signing.” It was Mendoza’s
responsibility to make sure that the design was “done correctly.” Gehbauer
reviewed the work that Mendoza prepared for this particular project. Gehbauer

                                         14
indicated that he and Mendoza only worked for, and were employees of, Brown &
Gay.

       Appellants argue that the engineering services agreement between Brown &
Gay and FBCTRA at most indicates FBCTRA’s general control and supervision
over the Tollway project, not the right to control the details of Brown & Gay’s
Tollway project work. See EPGT Tex. Pipeline, L.P. v. Harris Cty. Flood Control,
176 S.W.3d 330, 337 (Tex. App.—Houston [1st Dis.] 2004, no pet.). Appellants
contend that Gehbaurer testified at his deposition that only Brown & Gay
employees were responsible for traffic engineering and signage, and that he and
Federico Mendoza (the lead engineer of the traffic group) were solely employees
of Brown & Gay. In other words, appellants assert that Brown & Gay did not meet
its burden to prove that FBCTRA had a right to control the details of the traffic
engineering work performed by Brown & Gay.

       Brown & Gay argues that this court previously held that selecting and
designing signs are discretionary decisions for which FBCTRA is entitled to
governmental immunity.           See Olivares 1, 316 S.W.3d at 123–24; supra n.4.
Brown & Gay contends that it selected and designed traffic signs on behalf of
FBCTRA pursuant to their contract, and Gehbauer’s affidavit confirms that Brown
& Gay was performing the FBCTRA-delegated tasks of designing road signs and
traffic striping. Essentially, Brown & Gay’s theory is that as the engineering firm
acting as an agent for FBCTRA to select and design traffic signs it is shielded from
suit by the same governmental immunity that protects FBCTRA, without any need
to prove right to control—relying on City of Houston v. First City8 and Ross v.
Linebarger, Goggan, Blair and Sampson, LLP.9 Further, even if it is subject to the

       8
           827 S.W.2d 462 (Tex. App.—Houston [1st Dist.] 1992, writ denied).
       9
           333 S.W.3d 736 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

                                               15
“right to control” test, Brown & Gay argues that the undisputed evidence proves
FBCTRA’s control here because the contract provides that Brown & Gay would
serve as FBCTRA’s “representative solely and exclusively for the benefit of
FB[C]TRA” and would perform “under the supervision of the FB[C]TRA,” and
according to Gehbauer, all decisions related to Brown & Gay’s work on the
Tollway had to be approved by FBCTRA’s board, and FBCTRA controlled all of
Brown & Gay’s Tollway project work.10

            1. Brown & Gay’s assertion that it should be treated as FBCTRA’s
               governmental agent fails.11
       Brown & Gay’s reliance on First City and Ross is misplaced; thus, its

       10
           Brown & Gay also relies on federal cases applying the government-contractor defense,
also called the military-contractor defense. See Boyle v. United Techs. Corp., 487 U.S. 500
(1988); Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940); Ackerson v. Bean Dredging LLC,
589 F.3d 196 (5th Cir. 2009). Brown & Gay argues that it is shielded from suit because it was
involved in discretionary design decisions pursuant to a government contract to perform the
government’s authorized public works project. However, Texas courts only have recognized this
affirmative, federal common-law defense in the context of federal government contracts
involving military procurement. See, e.g., Torrington Co. v. Stutzman, 46 S.W.3d 829, 846–47
(Tex. 2000) (in manufacturing defect case brought against manufacturer of military helicopter
part, disagreeing that refusal to submit defense to jury was reversible error); Augustine v. Bell
Helicopter Textron, Inc., 922 S.W.2d 287, 291 (Tex. App.—Fort Worth 1996, writ denied) (in
design defect case brought against designer of military helicopter part, concluding fact issues
existed precluding summary judgment on defense); Feldman v. Kohler Co., 918 S.W.2d 615, 620
(Tex. App.—El Paso 1996, writ denied) (“[T]he government contractor defense . . . is predicated
upon the notion that state law tort actions can significantly conflict with the federal government’s
unique role as the procurer of weapons systems.”). Moreover, Brown & Gay did not argue
immunity based on this defense in its plea, and in Ackerson, the Fifth Circuit held that the
government-contractor defense does not sound in governmental immunity and is not
jurisdictional in nature. 589 F.3d at 207–08.
       11
           Both MSE and Brown & Gay presented a variant of this argument in their pleas,
relying on Ross for the proposition that Texas courts hold private entities such as MSE and
Brown & Gay to be governmental employees. However, MSE failed to include any discussion
of Ross in its appellate brief and, unlike Brown & Gay, did not argue that because MSE
functioned as a governmental agent, it thus should share FBCTRA’s governmental immunity. In
any event, the same analysis would preclude MSE from relying on Ross to bypass its
requirement to show that FBCTRA had the legal right to control its work per the TTCA’s
definition of governmental employee.

                                                16
contention that it need not meet the “right to control” test fails. In First City, the
City of Houston and Houston Independent School District (HISD) brought a
delinquent property tax collection suit against the record property owner and the
bank holding a lien on the property. The bank filed a counterclaim against the
City, HISD, and the law firm representing the City and HISD, seeking compliance
with the terms of an accord and satisfaction. The First Court of Appeals addressed
whether the private law firm was liable for the bank’s attorney’s fees. 827 S.W.2d
462, 479 (Tex. App.—Houston [1st Dist.] 1992, writ denied).                    The court
determined that the fees were not recoverable as a matter of public policy because
the law firm as the government’s agent was performing the governmental function
of collecting tax revenue. Id. at 481 (discussing section 101.05512 of TTCA). That
is, the firm was acting as a “delinquent collecting agent of the taxing units,” legally
authorized to prosecute suits on behalf of the City and HISD. Id. at 480–81
(discussing TEX. TAX CODE ANN. § 33.41 and TEX. R. CIV. P. 7).
      In Ross, after a final judgment had been rendered against it for delinquent
property taxes, taxpayer plaintiff brought suit against Fort Bend County, Fort Bend
Independent School District, the City of Sugar Land, and the law firm representing
the taxing units for claims in connection with the tax collection process. The law
firm filed a plea to the jurisdiction and motion for summary judgment based on
governmental immunity. The plaintiff argued that the firm failed to prove it was
an employee rather than an independent contractor under the TTCA. However, in
her petition, the plaintiff alleged that the law firm and its employees were “agents”
of the governmental units. 333 S.W.3d 736, 742 (Tex. App.—Houston [1st Dist.]
      12
         TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(1) (West 2012 ) (“This chapter does not
apply to a claim arising: (1) in connection with the assessment or collection of taxes by a
governmental unit[.]”).




                                            17
2010, no pet.). Nor did she assert facts to otherwise show the taxing entities had
the legal right to control the details of the firm’s tax collection work.          Id.
Ultimately, the court concluded that, just as in First City, imposing liability on the
law firm for actions taken while performing the governmental function of
collecting taxes would offend public policy. Ross, 333 S.W.3d at 746–47.
      Neither First City nor Ross stands for the proposition that Brown & Gay can
bypass its requirement to prove it meets the statutory definition of “employee”
under section 101.001(2).     Moreover, First City and Ross are distinguishable
because they involved situations where private law firms were representing
governmental taxing units in statutorily-authorized court proceedings for the
collection of delinquent property taxes. There was no question that the firms were
acting as disclosed agents on behalf of the taxing entities. Further, in Ross, the
plaintiff herself pleaded that the law firm was a governmental agent. In contrast,
this case does not involve any actions taken in connection with delinquent property
tax collection. And unlike in First City and Ross, where the firms and attorneys
were prosecuting governmental tax collection pursuant to section 33.41 of the Tax
Code, Brown & Gay has not asserted, and we have not located, any “legal
authorization” for engineering firms to perform any governmental functions as
governmental agents. Nor did appellants allege that Brown & Gay was acting as
FBCTRA’s agent. Rather, appellants pleaded that engineering company Brown &
Gay was negligent in performing its design work and breached its engineering
standard of care.

         2. Application of the “right to control” test to Brown & Gay
      Aside from the narrow context of governmental agents prosecuting tax
delinquency suits, Texas courts have applied the traditional “right to control”
factors to determine whether a worker is an employee or an independent contractor

                                         18
in the context of the TTCA. Bishop, 156 S.W.3d at 584–85 (concluding play
director and wife were independent contractors, not employees, such that
university did not waive immunity per section 101.021(2)); EPGT Pipeline, 176
S.W.3d at 336–37 (concluding third-party contractor was independent contractor,
not employee, such that flood control district did not waive immunity per section
101.021(1)13). Thus, to meet the statutory definition of governmental employee
under the TTCA, Brown & Gay must show that it is in the paid service of a
governmental unit14 and that it is not an independent contractor, agent or employee
of an independent contractor, or someone who performs tasks the details of which
the governmental unit does not have a legal right to control. TEX. CIV. PRAC. &
REM. CODE ANN. § 101.001(2).
       When we apply the right-to-control test to the evidence here, we conclude
that it conclusively shows Brown & Gay to be an independent contractor for
FBCTRA.
              a. Independent nature of business

       Here, Brown & Gay, a private Texas engineering firm, was to perform the
“specialized task” of providing engineering services for the Tollway project—
adhering to professional engineering standards—under its contract with FBCTRA.
See Bishop, 156 S.W.3d at 585.

              b. Obligation to furnish tools, supplies, and material


       13
           TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (West 2012) (“A governmental unit
in the state is liable for: (1) property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting within his scope of
employment if: (A) the property damage, personal injury, or death arises from the operation or
use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be
personally liable to the claimant according to Texas law[.]”).
       14
         Appellants do not dispute that FBCTRA paid both MSE and Brown & Gay for work
performed under their respective contracts.

                                               19
      The engineering services contract provides that Brown & Gay would supply
its own personnel, equipment, supplies, and materials,15 and its own insurance,16
including worker’s compensation, commercial general liability, business
automobile liability, umbrella excess liability, and professional liability. Brown &
Gay also had to represent that it presently had, or could obtain, adequate qualified
employees to work on the project. While FBCTRA could remove Brown & Gay
engineers from the Tollway project, this power was narrowly limited to removal of
those engineers who are “incompetent or by [their] conduct become[] detrimental
to the Project.” See Bishop, 156 S.W.3d at 585 (concluding that university’s
ability to terminate play director and wife if they “refused to comply with a
demand demonstrates only a minimal degree of control that exists in any working
relationship and is no evidence of a level of control detailed enough to indicate
employee status”); EPGT Pipeline, 176 S.W.3d at 337 (“[T]he fact that the
[county] engineer reserved the right to ask [contractor] to remove an objectionable
worker does not mean that [flood control district] controlled the details of
[contractor’s] work.”).

                c. Right to control progress of the work

      The contract provides that Brown & Gay would perform its services under
FBCTRA’s “supervision,” but this “indicate[s] control over the general
requirements of the project, and its proper completion,” rather than the right to
control the details of Brown & Gay’s engineering work. See EPGT Pipeline, 176
S.W.3d at 337.         Gehbauer testified that Brown & Gay employees held sole
responsibility for the traffic engineering and signage for the Tollway project; and

      15
           See Bishop, 156 S.W.3d at 585 (director and wife furnished own props); EPGT
Pipeline, 176 S.W.3d at 336 (contractor furnished own equipment and supplies, including
vehicle at issue).
      16
           See Limestone, 71 S.W.3d at 312 (driver furnished own insurance on his truck).

                                               20
Gehbauer indicated he was in charge of reviewing the work that Mendoza, the
“lead” of Brown & Gay’s traffic group, prepared. This testimony indicates that
Brown & Gay controlled the progress of its own engineering work. Moreover, as
discussed above, that FBCTRA’s board had to approve Brown & Gay’s Tollway
project work product does not mean FBCTRA had a right to control the details of
how Brown & Gay accomplished its work. See Bishop, 156 S.W.3d at 585;
Limestone, 71 S.W.3d at 312.
      Further, we similarly discount Gehbauer’s statements in his affidavit that
“[a]t all times, [Brown & Gay’s] activities and work concerning the [Tollway]
Project were controlled by the FBCTRA” and that “[a]ll of the work performed by
[Brown & Gay] in connection with the [Tollway] project occurred . . . under the
control and supervision of the FBCTRA,” as conclusory statements unsupported by
any underlying facts. See Dolcefino, 19 S.W.3d at 930. Gehbauer completely fails
to provide any specific instances or examples of conduct by FBCTRA whereby
FBCTRA exercised actual control over the details of Brown & Gay’s engineering
work during the Tollway project. See CA Partners, 274 S.W.3d at 64. Gehbauer’s
conclusory statements are not evidence and do not raise any fact issue on
FBCTRA’s right to control.      See Coastal, 136 S.W.3d at 232–33 (“[B]are
conclusions—even if unobjected to—cannot constitute probative evidence.”);
Ryland, 924 S.W.2d at 122.

             d. Time of employment

      According to the contract, FBCTRA was hiring Brown & Gay for a set
amount of time, i.e., the amount of time it took for the Tollway project to be
completed.    Brown & Gay thus only had an obligation to perform through
“Contract Closeout” of the Tollway project.

             e. Method of payment, whether by time or by the job

                                       21
      Although the contract provides that Brown & Gay engineers working on the
Tollway project would be paid hourly, such hourly payment falls within the overall
context of one specific project, or “job”—the construction of a particular segment
of the Tollway. See Bishop, 156 S.W.3d at 585. This job had an overall budget for
payment to Brown & Gay of just over $4 million.

         3. Thus, Brown & Gay has not shown itself to be a governmental
            employee per the TTCA.
      Finally, we find the First Court of Appeals’ “right to control” analysis in
EPGT Pipeline instructive.    There, plaintiff pipeline company EPGT brought
various negligence claims against Harris County Flood Control District (HCFCD)
for damage to its pipeline that occurred when Ramex, a third-party contractor, was
removing culverts in a bayou to improve drainage, pursuant to a construction
contract between Ramex and HCFCD. The TTCA waives governmental immunity
for injury caused by government employees’ use of motor vehicles when the
employee would be personally liable under Texas law. TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021(1).      HCFCD moved for summary judgment based on
governmental immunity. EPGT argued that Ramex was a government employee
under section 101.001(2) of the TTCA and therefore HCFCD waived immunity for
Ramex’s actions.    HCFCD presented evidence that Ramex furnished its own
equipment and supplies, Ramex was hired for the job through a bid process,
Ramex was paid by the job, according to its bid, and a Ramex employee testified
Ramex determined the means and methods to remove the culverts. Even though
EPGT argued that HCFCD personnel participated in construction plans and
specifications; certain contract provisions indicated that a county engineer could
“furnish specifications to, supervise, and ask Ramex to discharge, any Ramex
employees who do not ‘perform work in a proper and skillful manner’”; and
HCFCD provided Ramex with a project specification manual, the court concluded
                                       22
that this evidence did not create a fact issue that HDFCD had a right to control, or
exercised control over, the details of Ramex’s work. EPGT Pipeline, 176 S.W.3d
at 337–38. The court thus affirmed summary judgment in favor of HCFCD,
concluding that the undisputed, controlling facts indicated Ramex was an
independent contractor as a matter of law.          Id. at 336–38.     Comparing the
undisputed evidence here to that in EPGT Pipeline, it similarly fails to prove as a
matter of law any “legal right to control” by FBCTRA for Brown & Gay to qualify
as a governmental employee under the TTCA. See TEX. CIV. PRAC. & REM. CODE
§ 101.001(2).
         After reviewing the record evidence in the light most favorable to appellants
and drawing all reasonable inferences in their favor, we conclude that Brown &
Gay did not discharge its burden to present conclusive facts regarding FBCTRA’s
right to control the details of Brown & Gay’s work sufficient to negate subject-
matter jurisdiction.    See Miranda, 133 S.W.3d at 227–28. Further, because the
controlling facts are undisputed and only one reasonable conclusion can be
inferred, we conclude as a matter of law that Brown & Gay’s relationship with
FBCTRA is that of an independent contractor. See Bishop, 156 S.W.3d at 585;
EPGT Pipeline, 176 S.W.3d at 338. Therefore, we also sustain appellants’ second
issue.
                                V.       CONCLUSION

         Accordingly, having sustained both of appellants’ issues, we reverse the trial
court’s orders granting MSE’s and Brown & Gay’s pleas to the jurisdiction and
remand for further proceedings consistent with this opinion.

                                         /s/    Tracy Christopher
                                                Justice

Panel consists of Justices Boyce, Christopher, and Jamison.

                                           23
