                                 NO. 12-12-00353-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

BILLY EDWARD DAMUTH, II,                          §         APPEAL FROM THE 392ND
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

TRINITY VALLEY COMMUNITY
COLLEGE,
APPELLEE                                      §            HENDERSON COUNTY, TEXAS



                                 MEMORANDUM OPINION
       Billy Edward Damuth, II, appeals from the trial court’s order dismissing his breach of
contract suit against Trinity Valley Community College (TVCC). In his sole issue, Damuth
contends TVCC’s governmental immunity has been waived. We affirm.


                                          BACKGROUND
       Damuth entered into a written employment agreement with TVCC to coach and teach.
Five months into the one year contract, he was discharged. He brought suit against TVCC for
breach of contract and against Glendon S. Forgey, president of TVCC, individually, for tortious
interference with his employment contract. TVCC and Forgey filed a motion to dismiss and plea
to the jurisdiction, which the trial court granted in separate orders. Damuth appealed only the
order dismissing his suit against TVCC.


                                           IMMUNITY
       In his sole issue, Damuth asserts that the trial court erred in dismissing his suit against
TVCC because TVCC waived immunity to suit. Specifically, he argues that Local Government
Code Section 271.152 applies here, statutorily providing that immunity is waived for the purpose
of adjudicating a claim for breach of contract. TVCC responds by asserting that Section 271.152
applies only to certain contracts, and it does not apply to employment contracts.
Standard of Review
       When performing governmental functions, political subdivisions derive governmental
immunity from the State’s sovereign immunity. City of Houston v. Williams, 353 S.W.3d 128,
134 (Tex. 2011).     Immunity from suit deprives a trial court of jurisdiction.          Id. at 133.
Accordingly, a governmental entity properly asserts immunity in a plea to the jurisdiction. Id.
Whether a trial court possesses jurisdiction is a question of law that we review de novo. Id. In
reviewing a plea to the jurisdiction, we review the pleadings and any evidence relevant to the
jurisdictional issue. Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The
plaintiff has the burden of alleging facts sufficient to demonstrate the trial court’s jurisdiction by
alleging a valid waiver of immunity. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). Absent special statutory permission, a party cannot pursue a breach of
contract action against the State without first obtaining consent from the legislature. See TEX.
CIV. PRAC. & REM. CODE ANN. § 107.001-.005 (West 2011); Tex. A&M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 840 (Tex. 2007). A statute shall not be construed as a waiver unless immunity
is waived by clear and unambiguous language. TEX. GOV’T CODE ANN. § 311.034 (West 2013).
       Statutory construction is also a question of law, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In determining whether Section 271.152 applies
here, we look to the legislature’s intent. See Tex. Lottery Comm’n, 325 S.W.3d at 635. We
construe the statute’s words according to their plain and common meaning. City of Rockwall,
246 S.W.3d at 625. In construing a statute, we may consider, among other matters, the object
sought to be attained, circumstances under which the statute was enacted, legislative history, the
common law or former statutory provisions, including laws on the same or similar subjects, the
consequences of a particular construction, and the caption.          See TEX. GOV’T CODE ANN.
§ 311.023 (West 2013).
Analysis
       Damuth asserts that Section 271.152 of the Local Government Code applies to deprive
TVCC of immunity. Section 271.152 provides as follows:




                                                  2
                A local government 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. LOCAL GOV. CODE ANN. § 271.152 (West 2005). The Texas Legislature enacted Section
271.152 “to loosen the immunity bar so that all local governmental entities that have been given
or are given the statutory authority to enter into contracts shall not be immune from suits arising
from those contracts.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829,
838 (Tex. 2010). The statute waives immunity from suit for certain contract claims. Id. The
legislature defined the type of contract described in Section 271.152 as “a written contract stating
the essential terms of the agreement for providing goods or services to the local governmental
entity.” TEX. LOCAL GOV’T CODE ANN. § 271.151(2) (West 2005). Damuth contends that the
legislature intended this language to encompass his services as teacher and coach. Thus, the
relevant inquiry is whether the employment contract in this case falls into that category of
services referenced in Section 271.151(2).
        Chapter 271 provides no definition for the term “services.” In ordinary usage, the term
has a rather broad and general meaning, and it includes generally any act performed for the
benefit of another under some agreement whereby such act was to have been performed. Kirby
Lake Dev., Ltd., 320 S.W.3d at 839. However, we interpret statutory waivers of immunity
narrowly. Amadi v. City of Houston, 369 S.W.3d 254, 257 (Tex. App.–Houston [14th Dist.]
2011, pet. filed).
        Chapter 271 falls within Title Eight of the Local Government Code, which is entitled
“Acquisition, Sale, or Lease of Property.” Chapter 271 includes the Public Property Finance
Act, rules for competitive bidding on public works contracts, and the Certificate of Obligation
Act, which provides a procedure for certain financing. See TEX. LOCAL GOV’T CODE ANN.
§§ 271.001-.064 (West 2005 & Supp. 2012). These statutes are applicable in situations where
third parties are doing business with a governmental entity. There is no indication in Title Eight
of the Local Government Code that it applies to employees of the governmental entity.
        Few cases have considered the application of Section 271.152. The Texas Supreme
Court, in City of Houston v. Williams, held that municipal ordinances, as well as certain other
agreements, constituted an employment contract between the city and the plaintiff fire fighters.
Williams, 353 S.W.3d at 137. Further, the court found that the fire protection services provided


                                                       3
by the fire fighters were “services” within the meaning of Section 271.151 and the city’s
immunity was waived pursuant to Section 271.152. Id. at 137-39. We do not interpret Williams
as a blanket holding that all employment contracts with a governmental entity are subject to the
waiver of Section 271.152. The services of fire fighters are so significant that fire fighters are
designated civil servants subject to special rules. See TEX. LOC. GOV’T CODE ANN. §§ 143.001-
.313 (West 2008 & Supp. 2012). Also, the statute specifically states that those rules do not apply
to all employees of a fire department, such as secretaries and administrative employees. See
TEX. LOC. GOV’T CODE ANN. § 143.003(4)(B) (West 2008). Thus, there is a distinction between
the services provided by fire fighters and those of other employees.
         Had the legislature intended to waive immunity from suit for every contract participated
in by governmental entities, it could have done so. See E. Houston Estate Apts. v. City of
Houston, 294 S.W.3d 723, 736 (Tex. App.–Houston [1st Dist.] 2009, no pet.).             We must
interpret the limitation as having some meaning. Id. Further, as a general rule, ambiguity as to
waiver is resolved in favor of retaining governmental immunity. Harris Cnty. Hosp. Dist. v.
Tomball Reg’l Hosp., 283 S.W.3d 838, 844 (Tex. 2009). Accordingly, based upon the plain
language of the limited waiver of immunity in Section 271.152, we conclude that it does not
apply here. See Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 932 (Tex. 2010) (plain
language of statute under review excluded Commissioner of Education from those parties who
must consent to judicial appeal in Travis County). Because TVCC has not waived its immunity
from suit for breach of Damuth’s employment contract, the trial court did not err in granting
TVCC’s motion to dismiss and plea to the jurisdiction. We overrule Damuth’s sole issue.


                                                    DISPOSITION
         Texas Local Government Code Section 271.152 does not apply to waive TVCC’s
governmental immunity for the purpose of adjudicating a claim for breach of Damuth’s
employment contract. Accordingly, we affirm the trial court’s order of dismissal.
                                                                SAM GRIFFITH
                                                                  Justice

Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


                                                     (PUBLISH)


                                                           4
                                       COURT OF APPEALS
                  TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                              JUDGMENT


                                             JULY 31, 2013


                                         NO. 12-12-00353-CV


                             BILLY EDWARD DAMUTH, II,
                                     Appellant
                                        V.
                       TRINITY VALLEY COMMUNITY COLLEGE,
                                      Appellee


                           Appeal from the 392nd Judicial District Court
                       of Henderson County, Texas. (Tr.Ct.No. 2012B-0207)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
                       It is therefore ORDERED, ADJUDGED and DECREED that the order of
dismissal of the court below be in all things affirmed, and that all costs of this appeal are
hereby adjudged against the appellant, BILLY EDWARD DAMUTH, II, for which execution
may issue, and that this decision be certified to the court below for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      5
