      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00648-CV



                             City of Georgetown, Texas, Appellant

                                                  v.

                           Lower Colorado River Authority, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
         NO. D-1-GN-12-002982, HONORABLE TIM SULAK, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I would conclude that the Lower Colorado River Authority (LCRA) failed

to allege a valid waiver of governmental immunity from suit by the City of Georgetown (the City),

I respectfully dissent. See McCandless v. Pasadena Indep. Sch. Dist., No. 03-09-00249-CV,

2010 WL 1253581, at *3 (Tex. App.—Austin Apr. 2, 2010, no pet.) (mem. op.) (“Plaintiff bears the

burden to affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of

immunity, which may be either by reference to a statute or to express legislative permission.” (citing

Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999))).

               The majority concludes that the “City has no immunity from this suit” based upon

its conclusion that “the City was acting in a proprietary capacity when it entered into its contracts

with the LCRA.” This conclusion, however, ignores the well-established doctrine of governmental

immunity that protects political subdivisions of the state, including cities, from suit. See Ben Bolt
v. Texas Political Subdivisions, 212 S.W.3d 320, 324 (Tex. 2006); Tooke v. City of Mexia,

197 S.W.3d 325, 328 (Tex. 2006); Multi-County Water Supply Corp. v. City of Hamilton,

321 S.W.3d 905, 907 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). “A political subdivision

enjoys governmental immunity from suit to the extent that immunity has not been abrogated by the

Legislature.” Ben Bolt, 212 S.W.3d at 324 (citing Texas Natural Res. Conserv. Comm’n v. IT-Davy,

74 S.W.3d 849, 853 (Tex. 2002)); Multi–County Water Supply, 321 S.W.3d at 907 (“Immunity from

suit deprives the trial court of subject-matter jurisdiction and bars an action against the governmental

unit in the absence of express, clear, and unambiguous consent to suit.” (citing Tex. Gov’t Code

§ 311.034; Tooke, 197 S.W.3d at 332–33)).

                The majority’s analysis of the proprietary-governmental dichotomy also glosses over

LCRA’s pleadings. In its pleadings, LCRA does not allege a breach of contract claim but seeks

declaratory relief. See Tex. Civ. Prac. & Rem. Code §§ 37.001–.011 (UDJA); see, e.g., East

Houston Estate Apartments, L.L.C. v. City of Houston, 294 S.W.3d 723, 731 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (noting that courts of appeals have “applied the governmental-proprietary

dichotomy to breach of contract cases”). The UDJA “does not enlarge a trial court’s jurisdiction.”

City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). Except for suits challenging statutes

or ordinances, the UDJA does not waive governmental entities’ immunity from suit. See id.;

IT-Davy, 74 S.W.3d at 855–56; Multi–County Water Supply, 321 S.W.3d at 907 (noting that UDJA

“is not a general waiver of governmental immunity” and that “[b]y entering into a contract, a

governmental entity waives immunity from liability but does not waive immunity from suit”); Lower

Colorado River Auth. v. Riley, No. 10-10-00092-CV, 2011 WL 6956136, at *2 (Tex. App.—Waco



                                                   2
Dec. 28, 2011, no pet.) (mem. op.) (UDJA “not general waiver of sovereign immunity”). Thus,

LCRA’s UDJA claims do not satisfy its burden to allege a valid waiver of immunity from suit. See,

e.g., IT-Davy, 74 S.W.3d at 855–56, 860 (stating that immunity generally protects a governmental

entity from declaratory-judgment suits that seek to establish a contract’s validity or enforce

performance under the contract “because such suits attempt to control state action”).

               LCRA’s pleadings also fail to establish that section 271.152 of the Local Government

Code applies to waive the City’s immunity from suit: the LCRA expressly states it is not bringing

a breach of contract claim for money damages.1 See Tex. Loc. Gov’t Code §§ 271.151–.160

(waiving immunity of local governmental entities for breach of contract claims that seek to recover

balance owed under a contract for goods or services and limiting recoverable damages); McCandless,

2010 WL 1253581, at *3 (concluding “without a properly pleaded breach-of-contract action, section

271.152 does not waive governmental immunity”); cf. Ben Bolt, 212 S.W.3d at 323, 328 (concluding

that limited statutory waiver in section 271.151 applied to insurance coverage dispute in “declaratory

judgment action seeking a determination that the loss was a covered occurrence under the

insurance agreement’s terms”); City of San Antonio v. Wheelabrator Air Pollution Control, Inc.,

381 S.W.3d 597, 599–600 (Tex. App.—San Antonio 2012, pet. filed) (plaintiff seeking money

damages under a breach of contract claim or, alternatively, a quantum meruit claim). LCRA does




       1
           In its pleadings, LCRA states: “it merely seeks to construe LCRA’s obligations under a
state statute and a contract and does not otherwise attempt to control Defendants or establish their
liability for money damages. . . . LCRA does not seek to validate the contract, impose liability on
Defendants, or enforce their performance. . . . LCRA’s declaratory-action does not seek to establish
that the City owes LCRA money or that the City previously breached its contractual obligations.”

                                                  3
not seek to recover the balance owed under a contract. See Tex. Loc. Gov’t Code § 271.153 (listing

recoverable damages).

               Although a governmental entity waives its immunity from liability by entering into

contracts, it was LCRA’s burden to allege a valid waiver of immunity from suit. See Ben Bolt,

212 S.W.3d at 324 (“By entering into a contract, the State waives its immunity from liability but not

its immunity from suit.”); Jones, 8 S.W.3d at 637 (plaintiff’s burden to allege valid waiver of

immunity). I would conclude that LCRA failed to do so.2



                                              __________________________________________

                                              Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: August 23, 2013




       2
          I also cannot join the majority’s analysis of section 271.152 of the Local Government Code,
the section expressly waiving immunity from suit for certain contract claims. See Tex. Loc. Gov’t
Code § 271.152. Section 271.151(2) defines a “contract subject to this subchapter” to mean “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). Contracts properly executed by a local governmental entity, such as a city, whether
in its governmental or proprietary capacity, fall within the plain language of a “contract subject to
this subchapter.” See id.

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