                                                      ACCEPTED
                                                  03-16-00132-CV
                                                        11216005
                                       THIRD COURT OF APPEALS
                                                  AUSTIN, TEXAS
                                             6/17/2016 8:42:04 PM
                                                JEFFREY D. KYLE
                                                           CLERK
     NO. 03-16-00132-CV

                                  FILED IN
                           3rd COURT OF APPEALS
           IN THE              AUSTIN, TEXAS
  THIRD COURT OF APPEALS   6/17/2016 8:42:04 PM
                             JEFFREY D. KYLE
      AT AUSTIN, TEXAS             Clerk



   CHARLES J. HUGHES,
               Appellant
          v.

   TOM GREEN COUNTY,
             Appellee




    APPELLEE’S BRIEF




           JAMES DAVID WALKER
           P. O. Box 41
           Milano, Texas 76556
           SBOT 20706000
           Phone: (512) 636-9520
           Email: walker@2appeal.com
           ATTORNEY FOR
           APPELLEE TOM GREEN COUNTY


ORAL ARGUMENT REQUESTED
         IDENTITY OF PARTIES AND COUNSEL

Appellant’s Brief lists Appellee Tom Green County’s trial counsel.

Tom Green County is represented on appeal by:

James David Walker
P. O. Box 41
Milano, Texas 76556
SBOT 20706000
Phone: (512) 636-9520
Email: walker@2appeal.com




                               1
                                    TABLE OF CONTENTS


INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    18
   Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      18
   Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          20
   Authority of Commissioners Court. . . . . . . . . . . . . . . . . . . . . . . . . . .                    21
   Governmental Immunity - General Principles.. . . . . . . . . . . . . . . . . .                           23
   Waiver of Governmental Immunity - Legislative Control. . . . . . . . .                                   25
   Waiver of Governmental Immunity -
        The Lawson Plurality Exception. . . . . . . . . . . . . . . . . . . . . . . .                       32

                   Lawson Issues Summarized. . . . . . . . . . . . . . . . . . . . . . . 32
             Court Not Required to Adopt Lawson. . . . . . . . . . . . . . . . . . . . 35
             Reata Limitation on Immunity
                   Has No Application to Lawson Exception. . . . . . . . . . . . 38
             Any Recovery
                   Should Be Limited To A Reata Offset.. . . . . . . . . . . . . . 48
             Alternatively Lawson Should Not Be Applied
                   To A Contract Executed in 1994. . . . . . . . . . . . . . . . . . . 50
             Record Does Not Support A Lawson Waiver. . . . . . . . . . . . . . 51
                         The record does not implicate the Reata immunity
                         exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
                         The record does not implicate the Lawson immunity
                         waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
        Waiver of Governmental Immunity - By Conduct. . . . . . . . . . . . . . . 59

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67


                                                       2
                                  INDEX OF AUTHORITIES

                                                    Cases

A. I. Divestitures, Inc. v. Texas Comm'n on Envtl. Quality, 2016 WL 3136850
(Tex.App.–Austin 2016, no. pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . 39, 40, 43

Aledo ISD v. Choctaw Properties, L.L.C., 17 S.W.3d 260 (Tex.App.–Waco
2000, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941). . . . . . . . . . . . . . . . . . . . 21

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000). . . . . . . . . . . . 20

Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015). . . . . . 25

Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003). . . 19,
                                                                      23, 27

City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App.–Fort Worth 2007,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 47, 48

City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011). . . . . . . . . . . . . . . . . 41

City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102
(Tex.App.–Dallas 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 53, 63

City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501
(Tex.App.–Austin 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 47, 63

Employees Ret. Sys. of Texas v. Putnam, LLC, 294 S.W.3d 309
(Tex.App.–Austin 2009, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 48-50

Federal Sign v. TSU., 951 S.W.2d 401 (Tex. 1997). . . . . . . . . . . . . . . . . . . 48


                                                        3
Firemen's Ins. Co. of Newark, N.J. v. Bd. of Regents of Univ. of Texas Sys.,
909 S.W.2d 540 (Tex.App.–Austin 1995, writ denied). . . . . . . . . . . . . . . . 21

Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004). . . . . . . . . . . . . . . . . 24

Hays County v. Hays County Water Planning Partnership, 106 S.W.3d 349
(Tex.App.–Austin 2003, pet. den.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783
(Tex.App.–Dallas 2013, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Jonah Water Special Util. Dist. v. White, 2009 WL 2837649
(Tex.App.–Austin 2009, pet. struck).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Labrado v. Univ. of Texas at El Paso, 2012 WL 43385 (Tex.App.–Austin
2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 62, 63

Leach v. Texas Tech Univ., 335 S.W.3d 386 (Tex.App.–Amarillo 2011, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). . . 37, 48,
                                                                      53, 54

Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012). . . . . . . . . . . . . . . . 20

Smith v. City of Blanco, 2009 WL 3230836 (Tex.App.–Austin 2009, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65

Smith v. Lutz, 149 S.W.3d 752 (Tex.App.–Austin 2004, no pet.). . . . . . . . 54

Tarrant County v. Smith, 81 S.W.2d 537 (Tex.Civ.App.–Fort Worth 1935,
writ ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Texas A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002). . . . 29,
                                                     32, 33, 36, 38, 44, 51

                                                           4
Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007).. . . . 31, 43,
                                                                         44

Texas Dept. of Health v. Neal, 2011 WL 1744966 (Tex.App.–Austin 2011,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 34, 35, 40, 43, 46

Texas Nat. Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28, 30, 36, 47, 66

Texas Southern University v. State Street Bank & Trust Co., 212 S.W.3d 893
(Tex.App.–Hou. [1st Dist.] 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . 63

Thomas v. Long, 207 S.W.3d 334 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . 21

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006).. . . . . . . . . . . . . . 24, 34

Travis County v. Pelzel & Assocs., 77 S.W.3d 246 (Tex. 2002).. . . 26, 27, 31

Travis County v. Rogers, 2015 WL 4718726 (Tex.App.–Austin 2015, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 46

TXU Energy Retail Co. L.L.C. v. Fort Bend ISD., 472 S.W.3d 462
(Tex.App.–Dallas 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Webb County v. Khaledi Props., 2013 WL 3871060 (Tex.App.–San Antonio
2013, no pet.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003). . . . . . . 24

                                                     Statutes

Tex. Civ. Prac. & Rem. Code § 154.073.. . . . . . . . . . . . . . . . . . . . . . . . 60, 61

Tex. Civ. Prac. & Rem. Code §107.001-.005. . . . . . . . . . . . . . . . . . . . . . . . 30


                                                           5
Tex. Gov't Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Tex. Loc. Gov't Code § 81.006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. Loc. Gov’t Code § 81.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                  6
                          STATEMENT OF FACTS

      Appellant Hughes appeals the grant of a plea to the jurisdiction

[Appendix1]. Hughes sued Appellee Tom Green County alleging breach of a

1994 agreement, the Mutual Partial Assignments [Appendix2]. Hughes

complains that the County breached the Mutual Partial Assignments (MPA)

by failing to name the County’s library in honor of Hughes’ family. He seeks

damages in the amount of at least $3,000,000 plus attorney's fees.

[Appendix3]

      The MPA was executed during the course of prior litigation (the SMU

litigation). Defendant's Exhibit 1 (CR3:4) contains a copy of every pleading

and any other document filed in the SMU litigation. (RR2:10)

      Because this is an appeal from the grant of a plea to the jurisdiction, the

initial focus is on the facts pleaded by Hughes. His pleading is attached as

Appendix3. Hughes pleads:

      *that the will of Hughes’ late uncle devised the residuary of the

      uncle’s estate to the County.

      *that in 1994 SMU filed suit seeking release of the will’s

      restrictions on the use of a gift made to it by the uncle’s will.

                                        7
       *that the County intervened in the SMU litigation and sought a

       declaration that the residue of such gift to SMU (the amount not

       needed to satisfy the purpose of the gift) belonged to the County.

       *that Hughes and others (the Hughes group) thereafter intervened

       in the SMU litigation and sought a declaration that the residuary

       gift to the County had lapsed and that, as a consequence, the

       residue of the gift to SMU belonged to the uncle’s heirs.1

       *that the SMU litigation court ordered the parties to mediation.

       Prior to mediation, the MPA was executed.2 Hughes pleads that the

signatories to the MPA were authorized to sign by all required authorities.

(CR:808) SMU was not a party to the MPA.

       By the MPA, the Hughes group assigned to the County "50% of the net

proceeds they actually receive from [the SMU litigation]." Likewise, the


       1
         Hughes was one of at least three heirs participating in the SMU litigation. In the current
litigation, Hughes is the lone plaintiff. Thus, for the sake of simplicity the argument will in some
respects ignore other heirs.
       2
        Hughes’ brief asserts that the MPA was signed at mediation. (Brief:3) Although the
timing does not seem to have any significance, the record does not support the brief’s assertion.
The MPA is not dated. However, Hughes pleads, “Prior to mediation, Tom Green County and the
Heirs-at-Law entered an agreement titled Mutual Partial Assignments . . . .” (CR:808) Hughes
acknowledges that the MPA was signed before the other agreements. (Brief:14-15)


                                                 8
County thereby assigned to the Hughes group "50% of the net proceeds it

actually receives from [the SMU litigation]." Similarly, the MPA provides

that “[t]hese mutual assignments are irrevocable and are intended to be a

mutual exchange of 50% of the respective interests of the parties hereto in

any recovery under said cause against SMU and any other adverse parties

who may be joined in the cause by mutual agreement of the parties hereto.”

      The MPA expressly disavows any intent to extinguish claims. It

provides in relevant part: "[T]his document is in no way intended to eliminate

or reduce in any fashion the cause of action, claims, or rights held by the

heirs-at-law or the County." (emphasis added).

      The MPA also includes the following: "In further consideration of this

matter, the County agrees to name the main county library, in honor of

Duwain E. Hughes, Jr., and/or Frances Crews Hughes, if the commissioners

consider the County's ultimate recovery in the cause to be substantial enough

for such recognition." Duwain and Frances Hughes are herein referenced as

“the Hughes family.”

      Thereafter, during mediation, the parties executed a document

captioned Settlement Agreement. [Appendix4] The Settlement Agreement

                                       9
provided: that SMU would pay $1,000,000 to the County and the other

parties to the suit (excepting one party); that SMU would obtain appropriate

relief as to the uncle’s will; and that all parties would dismiss their claims

with prejudice.

      Thereafter, the parties executed a document captioned Compromise and

Settlement and Release of All Claims (the Compromise Agreement).

(CR:671) The Compromise Agreement [Appendix5] provides that the

Settlement Agreement is “further reduced to writing in this agreement.”

      The County disputes Hughes’ assertion that the Compromise

Agreement “does not provide for any releases between the County and the

Hughes heirs.” (Brief:4) The Compromise Agreement summarizes the claims

asserted by SMU, the County, and the Hughes group and provides that by the

Settlement Agreement the parties agreed to a “complete and final

compromise and settlement of such suit and all of such disputes.” Similarly,

the trial court signed a Final Judgment [Appendix6] which recites that “all

matters in controversy between the parties which is the subject matter of this

suit have been fully and finally agreed to and settled.”

      The Settlement Agreement, the Compromise Agreement, and the Final

                                        10
Judgment make no mention of the MPA. Hughes pleads that the County and

the Hughes group evenly split (50-50) the $1,000,000 paid by SMU.

(CR:809)

      Hughes pleads that he accepted the SMU settlement during mediation

because the County’s representatives had stated that “the County’s portion of

the SMU’s offer would be substantial enough to warrant naming the Central

Library as contemplated in the [MPA].”

      Hughes further pleads that the County’s commissioners court met in

open session on July 9, 1994 and “considered the ultimate recovery in the

lawsuit to be substantial enough and ratified the [MPA].” (CR:809) He also

pleads that the commissioners court ratified “the separate agreement settling

claims against SMU and dismissing the lawsuit.” (CR:809)

      Hughes pleads that the County’s commissioners court met on March 1,

2011 and passed a resolution which named the library the “Stephens Central

Library” and which expressly provided that the County’s recovery in the

SMU litigation is not substantial enough to name the library in honor of the

Hughes family. (CR:610)

      Hughes sued the County, asserting three causes of action: (1) breach of

                                      11
the MPA (by failing to name the library in honor of Hughes' family)

(CR:812); (2) an equitable claim captioned "money had and received,"

alleging that the County accepted the benefits of the MPA and unjustly

retains the SMU settlement funds (CR:813); and (3) a declaratory judgment

action asserting a violation of the Open Meetings Act and seeking to have the

March 11, 2011 resolution naming the library declared void and

unenforceable (CR:811).

      The trial court granted the County’s plea to the jurisdiction and

dismissed for lack of subject matter jurisdiction the claims arising out of or

pertaining to the MPA. (CR:833)




                                       12
                    SUMMARY OF THE ARGUMENT

      Appellant Hughes sued the County seeking damages for breach of the

library naming provision set out in the Mutual Partial Assignments (MPA).

Hughes and the County executed the MPA during the course of prior

litigation, being the SMU litigation.

      There is a dispute over performance of the library naming provision.

The MPA provides that the County will name the County’s library in honor

of the Hughes family - if the County’s commissioners determine that the

County’s recovery in prior litigation, the SMU litigation, is substantial

enough to name the library in honor of the Hughes family. The County

contends that even had the 1994 commissioners court determined that the

recovery was substantial enough to name the library for the Hughes family

(disputed), the 2011 commissioners court nevertheless had discretion to make

its own determination (a contrary determination) when it named the new

library in honor of the Stephens family.

      In an effort to avoid the expense of trial, the County pleaded

governmental immunity. The trial court granted the plea to the jurisdiction

and dismissed for lack of subject matter jurisdiction the claims arising out of

                                        13
or pertaining to the MPA.

       Hughes argues that he pleaded two grounds for waiver of immunity

from suit: waiver of immunity for breach of a settlement agreement under

application of the Lawson case and waiver of immunity by conduct.

       Hughes failed to demonstrate that immunity was waived under

application of the Lawson case. In Lawson, a Supreme Court plurality

opined: “[W]hen a governmental entity is exposed to suit because of a waiver

of immunity, it cannot nullify that waiver by settling the claim with an

agreement on which it cannot be sued.”

       Thus, the Lawson rule provides that immunity is waived on a breach of

contract claim if three elements are satisfied:

1- a claim was asserted against the governmental entity;

2- the entity was thereby exposed to suit because of a waiver of immunity;

and,

3-the claim was settled by the agreement made the basis of suit.

       Hughes argues that the County was “exposed to suit” (County lacked

immunity) in the SMU litigation because it voluntarily intervened in the

SMU litigation. Hughes would thereby invoke the Reata case’s voluntary

                                       14
litigation exception to immunity.

      However, in A. I. Divestitures this Court recognized that the judicially

promulgated Reata immunity exception has no application to Lawson

immunity waiver. The Lawson waiver rule applies only to agreements which

settle claims as to which immunity has been statutorily waived.

      In any event, the record does not support an application of Reata -

because the County sought no damages in the SMU litigation. Likewise,

Reata has no application because vis-a-vis Hughes the County’s claims were

merely defensive. Hughes intervened after the County intervened.

      Additionally, the Lawson immunity waiver can have no application

because the MPA did not settle any claim - much less a claim asserted by

Hughes against the County. In the SMU litigation Hughes asserted no claim

against the County.

      Additionally, even if Reata's judicially implemented limitation on the

contours of immunity were engrafted onto the Lawson waiver rule, and even

if Lawson otherwise had application, then logic and equity weigh in favor of

likewise engrafting and applying Reata's limited scope of jurisdiction. If the

County's voluntary intervention in the SMU litigation, or its conduct,

                                      15
triggered a waiver of immunity (disputed), then the trial court did not

thereby acquire jurisdiction over Hughes' claim for monetary relief against

the County in excess of an amount sufficient to offset the County's recovery

(if any). Alternatively, the 2002 Lawson plurality’s immunity waiver should

not be applied to a contract signed in 1994.

      Hughes failed to demonstrate that the County waived immunity by its

conduct. Hughes relies on alleged representations which as a matter of law

cannot be considered.

      Even if such allegations could be considered, this court has repeatedly

declined to apply a waiver by conduct exception to immunity. Even if the

waiver by conduct theory were viable, the facts pleaded by Hughes do not

support an equitable waiver of immunity.

      The County is not alleged to have made any representations to Hughes

concerning immunity. Hughes may have presumed that the County was

obligated to name the new library in honor of his family. However, a

misunderstanding of the law does not justify an equitable waiver of

immunity.

      Here, the County asserts immunity in an effort to avoid the expense of

                                      16
trial. The pleaded facts do not demonstrate that the County made promises

which it intended to break.

      Here, there is a good-faith dispute over performance of the library

naming provision: whether the 1994 commissioners court found that the

SMU litigation recovery was substantial enough to name the library in honor

of Hughes' family (disputed); and, even if it had, whether in the course of

naming the new library the 2011 commissioners court is somehow precluded

from making its own determination (a contrary determination).

      There is no showing that Hughes exercised his statutory remedy:

seeking legislative authority to sue the County. For that additional reason,

there is no basis for an equitable waiver of the County’s governmental

immunity.




                                       17
                               ARGUMENT

                                Background

     There is a dispute over performance of the library naming provision set

out in the Mutual Partial Assignments (MPA). The County denies that the

1994 commissioners court determined that the SMU litigation recovery was

substantial enough to name the library in honor of Hughes’ family. (CR:616)

Even if the 1994 commissioners court had made such a determination, the

2011 commissioners court was not thereby precluded from making its own

determination (a contrary determination) when naming the new library.

     In this regard, the issue is not whether the SMU litigation recovery was

substantial enough to name the library in honor the Hughes’ family. The

issue is whether the County’s commissioners court considers the recovery

substantial enough to name the library for the Hughes family. The contract

which Hughes claims to have been breached, the MPA [Appendix2],

provides that “the County agrees to name the main county library, in honor of

Duwain E. Hughes, Jr., and/or Frances Crews Hughes, if the commissioners

consider the County's ultimate recovery in the cause to be substantial enough

for such recognition." (emphasis added).

                                     18
      The County contends that the 2011 commissioners court had authority

to determine the issue of whether the recovery was substantial enough to

name the library in honor of Hughes' family. See Catalina Dev., Inc. v.

County of El Paso, 121 S.W.3d 704, 706 (Tex. 2003) (commissioners court

not bound by policy decisions of their predecessors); TXU Energy Retail Co.

L.L.C. v. Fort Bend ISD., 472 S.W.3d 462, 466 (Tex.App.–Dallas 2015, no

pet.) (rejecting implied contract theory); Texas Dept. of Health v. Neal, 2011

WL 1744966, at *5 (Tex.App.–Austin 2011, pet. denied) (rejecting doctrine

of equitable estoppel).

      Hughes alleges that the 2011 commissioners court made its

determination in violation of the Open Meetings Act. However, even if the

2011 determination were set aside, the commissioners court can make a new

determination.

      In an effort to avoid the expense of trial, the County pleaded immunity

from liability and immunity from suit (CR:612) and filed a plea to the

jurisdiction (CR:651-677). The trial court granted the plea to the jurisdiction

and dismissed for lack of subject matter jurisdiction the claims arising out of

or pertaining to the MPA. (CR:833)

                                       19
                              Standard of Review

      Issues of immunity from suit, ripeness, and standing are issues of

subject-matter jurisdiction that may be raised for the first time on

interlocutory appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 94 (Tex.

2012). A court deciding a plea to the jurisdiction is not required to look

solely to the pleadings but may consider evidence and must do so when

necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 555 (Tex. 2000).

      Whether a pleader has alleged facts that affirmatively demonstrate a

trial court's subject matter jurisdiction, or whether undisputed evidence of

jurisdictional facts establishes a trial court's jurisdiction, is a question of law

reviewed de novo. City of Carrollton v. Singer, 232 S.W.3d 790, 794 (Tex.

App.–Fort Worth 2007, pet. denied). If the pleadings affirmatively negate the

existence of jurisdiction, the plea may be granted without giving the claimant

an opportunity to amend. City of McKinney v. Hank's Rest. Group, L.P., 412

S.W.3d 102, 110 (Tex.App.–Dallas 2013, no pet.).

      In a jurisdictional challenge, the court is bound neither by the legal

conclusions nor by any illogical factual conclusions that Plaintiffs draw from

                                         20
the facts pleaded. Firemen's Ins. Co. of Newark, N.J. v. Bd. of Regents of

Univ. of Texas Sys., 909 S.W.2d 540, 542 (Tex.App.–Austin 1995, writ

denied); see Aledo ISD v. Choctaw Properties, L.L.C., 17 S.W.3d 260, 262

(Tex.App.–Waco 2000, no pet.) (in review of ruling on a plea to the

jurisdiction, we are not bound by legal conclusions nor by any illogical

factual conclusions drawn from the facts pled).

      A trial court is not required to deny an otherwise meritorious plea to the

jurisdiction or a motion for summary judgment based on a jurisdictional

challenge concerning some claims because the trial court has jurisdiction

over other claims. Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006).

                    Authority of Commissioners Court

      The commissioners court is the general business and contracting

agency of the county, and it alone has authority to make contracts binding on

the county, unless otherwise specifically provided by statute. Anderson v.

Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). “The members of the

commissioners court are the county judge and the county commissioners.”

Texas Local Government Code § 81.001(a). Three members generally

constitute a quorum for conducting county business. Tex. Loc. Gov't Code

                                      21
Ann. § 81.006(a).

      The commissioners court is a court of record and speaks through its

official minutes. Hays County v. Hays County Water Planning Partnership,

106 S.W.3d 349, 360-361 (Tex.App.–Austin 2003, pet. den.). The

commissioners' court does not act by the statement of one member thereof.

Id. No member of the commissioners court acting alone may bind the court or

the county. Id.. “[T]he individual commissioners have no authority to bind

the county by their separate action.” Canales v. Laughlin, 214 S.W.2d 451,

455 (Tex. 1948).

      The commissioners court can act only as a body and when in an official

meeting. Hays County, 106 S.W.3d at 360-361. They meet as a court and

transact the county business in open session. Id. This requirement is not a

mere formality.

      [T]he commissioners' court does not act by the statement of one
      member thereof at the local drug store and another at the county
      victuals emporium, etc. They meet as a court and transact the
      county business in open session. Such requirement is not formal.
      It is substantial, both that the members may have the benefit of
      the knowledge and opinions of the other members, as well as that
      the public may know when and where its affairs are being
      transacted.


                                      22
Tarrant County v. Smith, 81 S.W.2d 537, 538 (Tex.Civ.App.–Fort Worth

1935, writ ref'd).

               Governmental Immunity - General Principles

      The doctrine of sovereign immunity serves to prevent governmental

entities from being bound by the policy decisions of their predecessors.

Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.

2003); see Texas Nat. Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849,

854 (Tex. 2002) (sovereign immunity ensures that current policymakers are

neither bound by, nor held accountable for, policies underlying their

predecessors' long-term contracts). Although sovereign immunity furthers

important public policy goals, the courts need not justify its application.

            In this Court's second Term, we acknowledged the
      common-law rule that “no state can be sued in her own courts
      without her consent, and then only in the manner indicated by
      that consent.” We gave no basis for this principle of sovereign
      immunity, perhaps because a rule then more than six centuries
      old which the United States Supreme Court would describe as
      “an established principle of jurisprudence in all civilized nations”
      required no justification, or perhaps because the reasons given for
      the rule had evolved over the centuries, from “the king can do no
      wrong”, to preserving the dignity of the state, to protecting state
      resources. The rule remains firmly established, and as it has come
      to be applied to the various governmental entities in this State, an
      important purpose is pragmatic: to shield the public from the

                                       23
      costs and consequences of improvident actions of their
      governments.

Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006) (footnotes

omitted).

      Technically, Texas counties enjoy the benefit of governmental

immunity - not sovereign immunity.

             Courts often use the terms sovereign immunity and
      governmental immunity interchangeably. However, they involve
      two distinct concepts. Sovereign immunity refers to the State's
      immunity from suit and liability. In addition to protecting the
      State from liability, it also protects the various divisions of state
      government, including agencies, boards, hospitals, and
      universities. Governmental immunity, on the other hand, protects
      political subdivisions of the State, including counties, cities, and
      school districts.

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003)

(authority omitted).

      For purposes of this case, there is no meaningful distinction between

governmental immunity and sovereign immunity. Cases construing sovereign

immunity are equally relevant to governmental immunity. “Governmental

immunity operates like sovereign immunity to afford similar protection to

subdivisions of the State, including counties . . . .” Harris County v. Sykes,


                                       24
136 S.W.3d 635, 638 (Tex. 2004).

      Like sovereign immunity, governmental immunity encompasses both

immunity from suit and immunity from liability. Immunity from suit can be

challenged by a plea to the jurisdiction.

             Referred to as governmental immunity when applied to the
      state's political subdivisions, Travis Cent. Appraisal Dist. v.
      Norman, 342 S.W.3d 54, 57-58 (Tex. 2011), sovereign immunity
      encompasses both immunity from suit and immunity from
      liability, Reata Constr. Corp., 197 S.W.3d at 374. Immunity from
      liability is an affirmative defense that bars enforcement of a
      judgment against a governmental entity, while immunity from
      suit bars suit against the entity altogether and may be raised in a
      plea to the jurisdiction. State v. Lueck, 290 S.W.3d 876, 880
      (Tex. 2009); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
      692, 696 (Tex. 2003).

Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015).

         Waiver of Governmental Immunity - Legislative Control

      The courts consistently hold that only the Legislature can waive a

county’s immunity from suit for breach of contract. The waiver must be

evidenced by statute or resolution and must be expressed by clear and

unambiguous language.

      Express consent is required to show that immunity from suit has
      been waived. Thus in this case [involving a contract claim],
      Pelzel must establish consent to sue Travis County. Absent

                                       25
      consent, the trial court lacks jurisdiction.

            A party may establish consent by statute or legislative
      resolution. The consent must be expressed by "clear and
      unambiguous language.”

                                      ***

Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex. 2002)

(authority omitted); see Webb County v. Khaledi Props., 2013 WL 3871060

(Tex.App.–San Antonio 2013, no pet.) (waiver of a county's immunity from

suit for a claimed breach of contract requires a clear and unambiguous

expression of the Legislature, either by statute or resolution).

      The requirement that a statutory waiver of immunity be clear and

unambiguous has been preserved by the legislature. Consider the following:

             In order to preserve the legislature's interest in managing
      state fiscal matters through the appropriations process, a statute
      shall not be construed as a waiver of sovereign immunity unless
      the waiver is effected by clear and unambiguous language. In a
      statute, the use of “person,” as defined by Section 311.005 to
      include governmental entities, does not indicate legislative intent
      to waive sovereign immunity unless the context of the statute
      indicates no other reasonable construction. Statutory
      prerequisites to a suit, including the provision of notice, are
      jurisdictional requirements in all suits against a governmental
      entity.

Tex. Gov't Code § 311.034.

                                        26
      When a county contracts with a private party, it waives its immunity

from liability but not its immunity from suit.

            When a governmental entity contracts with a private party,
      as Travis County has done here, it is liable on its contracts as if it
      were a private party. But a governmental entity does not waive
      immunity from suit simply by contracting with a private party.

                                      ***

Pelzel, 77 S.W.3d at 248 (authority omitted); see Catalina Dev., Inc. v.

County of El Paso, 121 S.W.3d 704, 706 (Tex. 2003) (contract formation, by

itself, is not sufficient to waive a governmental unit's immunity from suit).

      Texas courts have consistently deferred to the Legislature to waive

immunity from suit.

            We have consistently deferred to the Legislature to waive
      sovereign immunity from suit, because this allows the Legislature
      to protect its policymaking function. Indeed, in the Code
      Construction Act, the Legislature expressed its desire to maintain
      control over sovereign immunity [i]n order to preserve [its]
      interest in managing state fiscal matters through the
      appropriations process....; See Tex. Gov't Code § 311.034.
      Subjecting the government to liability may hamper governmental
      functions by shifting tax resources away from their intended
      purposes toward defending lawsuits and paying judgments.
      Accordingly, the Legislature is better suited than the courts to
      weigh the conflicting public policies associated with waiving
      immunity and exposing the government to increased liability, the
      burden of which the general public must ultimately bear.

                                        27
Texas Nat. Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.

2002) (authority omitted).

      The Supreme Court has found contract claims to be especially

appropriate for such legislative deference.

            In the contract-claims context, legislative control over
      sovereign immunity allows the Legislature to respond to
      changing conditions and revise existing agreements if doing so
      would benefit the public. Moreover, legislative control ensures
      that current policymakers are neither bound by, nor held
      accountable for, policies underlying their predecessors' long-term
      contracts.

Texas Nat. Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.

2002) (authority omitted).

      Reasons for deferring to the Legislature in deciding whether to waive

sovereign immunity for contract claims have been summarized as follows:

      the handling of contract claims against the government involves
      policy choices more complex than simply waiver of immunity,
      including whether to rely on administrative processes and what
      remedies to allow;

      the government should not be kept from responding to changing
      conditions for the public welfare by prior policy decisions
      reflected in long-term or ill-considered obligations;

      the claims process is tied to the appropriations process, and the
      priorities that guide the latter should also inform the former; and,

                                       28
      the Legislature is able to deal not only with these policy concerns
      but also with individual situations in deciding whether to waive
      immunity by resolution, cases by case, or by statute.

Texas A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 522 (Tex. 2002)

(plurality) (footnotes omitted).

      Because waiver of immunity is a matter committed to the legislature,

the courts have been reluctant to apply a waiver-by-conduct theory: being

waiver based on the notion that a governmental entity can unilaterally waive

its governmental immunity through its own actions. This court has repeatedly

declined to apply such a theory, as is demonstrated by the following:

      Carowest's notion that the City can unilaterally waive its
      governmental immunity through its own actions traces back to
      the Texas Supreme Court's now-infamous footnote in Federal
      Sign v. Texas Southern University intimating that "[T]here may
      be . . . circumstances where the State may waive its immunity by
      conduct other than simply executing a contract so that it is not
      always immune from suit when it contracts." But in the years
      since it decided Federal Sign, the [Texas Supreme Court] has
      clarified—and repeatedly emphasized—that it defers to the
      Legislature, not the actions of individual governmental units, to
      determine whether, when, and how sovereign or governmental
      immunity should be waived. In so doing, moreover, it has
      squarely rejected the notion that a governmental entity with
      authority to enter contracts, or an agent acting on its behalf, can
      contractually waive immunity from suit, as Carowest insists
      occurred here. It has similarly declined repeated requests to
      recognize a "waiver by conduct," and has never gone further than

                                      29
      its suggestion in Federal Sign that such a waiver might
      conceivably occur under some set of facts it has not yet seen.
      Similarly, in the absence of further guidance from the supreme
      court, this Court (at least in recent years) has consistently rejected
      requests that we recognize "waivers by conduct" under a variety
      of factual scenarios.

City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521

(Tex.App.–Austin 2014, no pet.) (emphasis added).

      Legislative control over the waiver of immunity from suit does not

mean that the State can freely breach contracts with private parties, or that the

State can use sovereign immunity as a shield to avoid paying for benefits the

State accepts under a contract. Texas Nat. Res. Conservation Com'n v.

IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). There is a statutory remedy. If a

party who contracts with the State feels aggrieved, the party can seek redress

by asking the Legislature to waive immunity from suit. Id., citing Tex. Civ.

Prac. & Rem. Code §107.001-.005.

      Although the commissioners court has authority to enter into contracts

on behalf of a county, it does not have authority to waive the county’s

immunity from suit. IT-Davy, 74 S.W.3d at 858 (even though the TNRCC's

executive director had the authority to enter into the contract with IT-Davy


                                       30
on the TNRCC's behalf, he did not have authority to, and thus did not, waive

the TNRCC's immunity from suit); Labrado v. Univ. of Texas at El Paso,

2012 WL 43385, at *3 (Tex.App.–Austin 2012, no pet.) (only the

Legislature, not contracting parties, may waive a governmental unit's

immunity).

      A county does not waive its immunity by accepting the benefits of a

contract. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.

2007) (the State does not waive its immunity from a breach-of-contract

action by accepting the benefits of a contract).

      Likewise, a county does not waive immunity by seeking to comply

with the terms of a contract - even if the scope of performance required by

the contract is disputed. Pelzel, 77 S.W.3d at 252 (when a governmental unit

adjusts a contract price according to the contract's express terms, it does not,

by its conduct, waive immunity from suit, even if the propriety of that

adjustment is disputed).




                                       31
                     Waiver of Governmental Immunity -
                      The Lawson Plurality Exception

                         Lawson Issues Summarized

     Hughes observes that he pleaded two grounds for waiver of immunity

from suit: waiver of immunity for breach of a settlement agreement under

application of the Lawson case and waiver of immunity by conduct. (Brief:7)

He argues: “The issue facing this Court is whether the County waived

immunity from suit for its breach of the Agreement – either by breaching a

settlement agreement under Lawson or by its conduct in breaching the

Agreement.” (Brief: 8) By “Agreement,” Hughes refers to the Mutual Partial

Assignments (MPA) which contains the library naming provision. (Brief:3)

     This section will address the first issue (Lawson): waiver of immunity

for breach of a settlement agreement. Following that, the County will address

waiver by conduct.

     Hughes relies on an immunity waiver theory applied by a plurality of

the Supreme Court in Texas A&M University-Kingsville v. Lawson, 87

S.W.3d 518 (Tex. 2002). In Lawson, the state university entered into an

agreement which settled Mr. Lawson’s Whistleblower claim - being a claim


                                     32
as to which immunity had been statutorily waived. Mr. Lawson brought suit

for breach of the agreement.

      Four judges (a plurality) concluded that the breach of contract claim

was not barred by immunity, ruling that the university had waived immunity

by entering into the settlement agreement. The Lawson plurality opined:

“[W]hen a governmental entity is exposed to suit because of a waiver of

immunity, it cannot nullify that waiver by settling the claim with an

agreement on which it cannot be sued.” Lawson, 87 S.W.3d at 521.

      Hughes contends that the Mutual Partial Assignments (the source of the

library naming provision) settled a claim as to which immunity from suit had

been waived. In this regard, he argues that the County lost its immunity from

suit by voluntarily intervening in the SMU litigation (the Reata exception to

immunity). Hughes further contends that, under application of Lawson,

immunity from suit is as a consequence waived on his suit for breach of the

Mutual Partial Assignments (failure to name the library in honor of the

Hughes family).

      The Lawson plurality’s theory of immunity waiver (Lawson waiver) is

not binding authority and should not be adopted. Even if adopted, the Court

                                      33
can determine the scope of the Lawson waiver.

      Even if the Mutual Partial Assignments (MPA) settled a claim on

which immunity did not apply (disputed), the nature of the claim settled by

the MPA is not the sort of claim which falls within the scope of Lawson

waiver (Lawson waiver applying to claims as to which immunity has been

statutorily waived).

      Even if otherwise applicable, the scope of Lawson waiver should be

limited to allow suit for an offset (against any monetary recovery obtained by

the County) because that is the scope of the immunity exception applicable to

Hughes’ voluntary intervention theory (being the Reata exception to

immunity). Alternatively Lawson should not be applied to a contract

executed in 1994.

      Immunity is the default position (it is presumed). It is the application of

an exception to immunity which must be justified. Neal, 2011 WL 1744966,

at *4 (the legislature has not waived immunity from suit over settlement

agreements generally). The application of immunity to settlement agreements

need not be justified. Cf. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32

(Tex. 2006) (observing that sovereign immunity has long been recognized

                                       34
and, as such, needs no justification - although it serves important purposes).

                    Court Not Required to Adopt Lawson

      The Lawson plurality’s theory of immunity waiver is not binding

authority and should not be adopted. This Court is free to adopt or reject

Lawson waiver and, if adopted, is free to determine the scope of the waiver.

Because Lawson was decided by a plurality, and because the Lawson

exception has never been expressly adopted by a Supreme Court majority, the

Lawson exception to immunity has no precedential value. See Neal, 2011 WL

1744966, at *3 (Lawson is a plurality decision lacking precedential value).

      This Court has applied Lawson. However, it is not clear whether the

Court applied Lawson because the Lawson rationale went unchallenged or

whether the court deemed itself bound to apply the rationale. See e.g. Travis

County v. Rogers, 2015 WL 4718726, at *5 n.1 (Tex.App.–Austin 2015, no

pet.). (Pemberton, J., concurring) (observing that the issue was not raised, but

Court of Appeals might be bound to apply Lawson).

      The fact that the Supreme Court has remanded cases for courts to

consider the Lawson exception does not necessarily signal the Supreme

Court’s approval of the exception. It may simply signal a desire that the

                                       35
courts of appeal have the first opportunity to determine whether, and the

extent to which, the exception should be applied.

      The Lawson exception to immunity judicially intrudes into an area

which is delegated to the Legislature - waiver of sovereign immunity. See

Texas Nat. Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.

2002) (we have consistently deferred to the Legislature to waive sovereign

immunity from suit).

      This is nothing more than an ordinary contract dispute. Unless
      waived, the State retains its immunity from suit on a contract,
      whether the contract is for goods and services or a settlement
      agreement. We have repeatedly held that sovereign immunity in
      ordinary contract claims is an area best left to legislative
      judgment. See York, 871 S.W.2d at 177 (“[T]he waiver of
      governmental immunity is a matter addressed to the
      Legislature.”). Deference to the Legislature to determine
      sovereign immunity in ordinary breach-of-contract cases
      claiming waiver by conduct is founded on sound policy. See Fed.
      Sign, 951 S.W.2d at 413 (Hecht, J., concurring) (“There are
      compelling reasons for this Court to continue to defer to the
      Legislature.”). Yet today the plurality overrides those compelling
      reasons and concludes that although the Legislature has not
      chosen to waive sovereign immunity for this breach-of-contract
      claim, the University simply “may not” claim immunity in this
      case.

Lawson, 87 S.W.3d at 525-26 (Rodriguez, J., dissent).

      In this regard, the question is not whether the Lawson exception

                                      36
advances equitable or otherwise beneficial policy. The question is whether

the policy choices should be made by the courts or by the Legislature. Cf.

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006) (there

is tension between the concept of a governmental entity waiving its immunity

from suit by some action independent from the Legislature's waiving

immunity and the principle that only the Legislature can waive sovereign

immunity).

      The Lawson exception to immunity also ignores established law that a

suit for breach of a settlement agreement is independent of the settled claim.

      The plurality concedes that the Legislature has not waived
      immunity for Lawson's breach-of-contract claim. Nevertheless,
      the plurality sidesteps recent precedent concerning sovereign
      immunity in breach-of-contract suits, wholly ignores established
      law that a suit for breach of a settlement agreement is
      independent of the settled claim, and erroneously concludes that
      the University may not assert immunity.

                                     ***

             [T]he issue here is whether the State may assert sovereign
      immunity in an ordinary breach-of-contract case, and the answer
      to that question is decidedly “yes.” Lawson asserted a
      breach-of-contract claim against the University, and the State has
      sovereign immunity on that claim. When Lawson settled, he
      traded in his wrongful termination claims for a settlement
      contract, and, in addition to accepting $62,000, he accepted the

                                      37
      risk that the State could assert immunity if it breached the
      contract, just as all people who contract with the State accept that
      risk. Although such a risk might discourage some parties from
      contracting with the State, that risk has not daunted the Court
      before. See Pelzel, 77 S.W.3d at 252; IT-Davy, 74 S.W.3d at
      856; Fed. Sign, 951 S.W.2d at 408. Moreover, those who settle
      for cash and receive payment before dismissing their suit take no
      risk that the State will assert immunity. Thus, contrary to the
      plurality's fears, only a handful of settlements in which the
      private party insists on executory provisions rather than only a
      cash settlement would be discouraged.

Lawson, 87 S.W.3d at 524-25 (Rodriguez, J., dissent).

                       Reata Limitation on Immunity
                  Has No Application to Lawson Exception

      Even if the Lawson rationale is adopted, this Court can determine the

scope of the Lawson waiver. In order to apply Lawson waiver to Hughes’

claim, the Court would need to expand the waiver beyond the narrow scope

to which it was applied by the Lawson plurality.

      The Lawson plurality opined: “[W]hen a governmental entity is

exposed to suit because of a waiver of immunity, it cannot nullify that waiver

by settling the claim with an agreement on which it cannot be sued.” Lawson,

87 S.W.3d at 521 (plurality).

      Thus, the Lawson rule provides that immunity is waived on a breach of


                                       38
contract claim if three elements are satisfied:

1- a claim was asserted against the governmental entity;

2- the entity was thereby exposed to suit because of a waiver of immunity;

and,

3-the claim was settled by the agreement made the basis of suit.

       Even assuming that Hughes met the other two elements (disputed),

Hughes has not demonstrated that in the SMU litigation the County was

exposed to suit because of a waiver of immunity. Here, in an effort to

establish that immunity was waived on a claim allegedly settled by the MPA,

Hughes relies on Reata’s judicially created voluntary litigation exception to

immunity.

       However, this Court has declined to extend the Lawson waiver in the

manner advocated by Hughes. See A.I. Divestitures, Inc. v. Texas Comm'n on

Envtl. Quality, 2016 WL 3136850, at *8 (Tex.App.–Austin 2016, no. pet. h.)

(rejecting argument that the Reata exception to immunity will support an

application of Lawson waiver). A judicially created exception to immunity

will not support an application of Lawson.

       The Lawson exception has no application - because even if the Mutual

                                       39
Partial Assignments (MPA) settled a claim, it did not settle a claim for which

the legislature had waived immunity. See A.I. Divestitures, 2016 WL

3136850, at *8 (Lawson waiver is not implicated when there has been no

legislative waiver of the State's immunity). In Neal, this Court likewise

distinguished Lawson, holding as follows: “[T]he present case differs from

Lawson in a crucial respect: Lawson had a statutorily recognized claim (i.e .,

a claim for which the State had waived immunity) pending in the trial court

when he settled with the State.” 2011 WL 1744966, at *4.

      The voluntary litigation theory (the Reata rule) relied on by Hughes

does not give rise to a statutory waiver of immunity. Instead, the voluntary

litigation theory gives rise to a limited judicial exception to immunity and, as

such, will not support application of a Lawson waiver.

      Hughes argues that the County “voluntarily intervened in the SMU

litigation and had no grounds for asserting sovereign immunity as to Hughes’

claim in the SMU Litigation.” (Brief:8,10,14). He provides neither argument

nor authority. (CR:806).

      However, voluntary litigation gives rise to a very limited exception to

immunity. See Employees Ret. Sys. of Texas v. Putnam, LLC, 294 S.W.3d

                                       40
309, 325 (Tex.App.–Austin 2009, no pet.). In Putnam, this Court observed:

      In Reata, the court held that when a governmental entity files a
      lawsuit or otherwise seeks affirmative relief, it waives immunity
      for connected, germane, and properly defensive counterclaims,
      but only to the extent those counterclaims offset the claims of the
      government entity. 197 S.W.3d at 377 (“Absent the Legislature's
      waiver of the City's immunity from suit, ... the trial court did not
      acquire jurisdiction over a claim for damages against the City in
      excess of damages sufficient to offset the City's recovery, if
      any.”).

Putnam, 294 S.W.3d at 324-25.

      Technically, the Reata rule is not a rule of waiver - it is a judicially

implemented limitation on the contours of immunity (the extent to which

immunity will be applied). This distinction is illustrated by the following:

            Although litigation actions of governmental entities
      underlay our decisions in Reata and similar cases, we did not
      hold that those actions effected waivers of immunity; rather, they
      were factors we considered in defining the contours of immunity.
      In other words, we have not, in Reata or other decisions, altered
      the principles that (1) the boundaries of sovereign immunity are
      determined by the judiciary, and (2) waivers of sovereign
      immunity or consent to sue governmental entities must generally
      be found in actions of the Legislature.

City of Dallas v. Albert, 354 S.W.3d 368, 374 (Tex. 2011) (authority

omitted).

      Because the Reata rule gives rise to a judicially implemented limitation

                                        41
on the contours of immunity, its application to Lawson waiver is

inappropriate because, as noted, Lawson waiver is justified (if at all) by its

application to statutorily recognized claims (claims as to which the legislature

has waived immunity).

      This Court recently held that the Reata voluntary litigation rule has no

application to Lawson waiver, holding as follows:

      Relying on Reata Construction Corporation v. City of Dallas,
      A.I. asserts that by filing suit against A.I., the Commission
      waived immunity concerning any and all of A.I.'s potential
      defenses and potential offsets. See Reata Constr. Corp. v. City of
      Dallas, 197 S.W.3d 371, 374 (Tex.2006). Relying further on
      Texas A & M University–Kingsville v. Lawson, A.I. maintains
      that because the Commission agreed to settle the enforcement
      action, for which according to A.I. it had waived its immunity, it
      could not claim immunity from a suit alleging that it breached
      that settlement agreement. See Texas A & M Univ.-Kingsville v.
      Lawson, 87 S.W.3d 518, 520–23 (Tex.2002) (holding exception
      to sovereign immunity exists when suit alleges breach of
      agreement settling claim for which Legislature has waived State's
      immunity).

                                      ***

      In this case there is no legislative waiver of the Commission's
      immunity such that applying immunity to A.I.'s suit for breach of
      an agreement settling the enforcement action would thwart the
      Legislature's policy judgments in waiving immunity in the first
      place. See Lawson, 87 S.W.3d at 521 (“[W]hen a governmental
      entity is exposed to suit because of a waiver of immunity, it

                                       42
      cannot nullify that waiver by settling the claim with an agreement
      on which it cannot be sued ... without defeating the purpose of
      the waiver in the first place.”). The Lawson exception to
      sovereign immunity is simply not implicated when there has been
      no legislative waiver of the State's immunity. A.I.'s breach of
      contract claim was barred by sovereign immunity, and the district
      court properly granted the Commission's plea to the jurisdiction
      as to that claim.

A. I. Divestitures, 2016 WL 3136850, at *8.

      The Supreme Court has recognized that the Lawson rule creates a

“narrow exception.” See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d

835, 838 (Tex. 2007) (pleadings against Texas A & M did not fit the narrow

exception suggested by the plurality in Lawson). The Lawson exception

permits immunity to be disregarded only if the agreement settled a claim as to

which immunity is statutorily waived.

      The rationale underlying Lawson provides that the legislature has

waived immunity on the claim so enforcement of an agreement settling the

claim preserves and perpetuates the statutory waiver. This court has

recognized that the Lawson plurality “found a waiver of immunity in the

situation at bar only because it concluded that the Legislature intended one.”

Neal, 2011 WL 1744966, *13 (emphasis added).


                                        43
      The key distinction - the Lawson plurality determined that immunity

was waived by the legislature and not by the courts. See Lawson, 87 S.W.3d

at 522 (once the Legislature has decided to waive immunity for a class of

claims, the inclusion of settlements within the waiver is consistent with that

decision); Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.

2007) (in Lawson, a plurality of this Court held a plaintiff's claim for breach

of an agreement settling his underlying Whistleblower Act claim was

encompassed within the Legislature's decision to waive immunity for

Whistleblower Act claims).

      Both the Lawson plurality and dissent recognized the need to give

deference to the legislature’s role in waiving sovereign immunity. The

Lawson four-judge dissent opined that the plurality exception failed to give

due deference to the Legislature, as follows:

      We have repeatedly held that sovereign immunity in ordinary
      contract claims is an area best left to legislative judgment. See
      York, 871 S.W.2d at 177 ("The waiver of governmental
      immunity is a matter addressed to the Legislature."). Deference to
      the Legislature to determine sovereign immunity in ordinary
      breach-of-contract cases claiming waiver by conduct is founded
      on sound policy. See Fed. Sign, 951 S.W.2d at 413 (Hecht, J.,
      concurring) ("There are compelling reasons for this Court to
      continue to defer to the Legislature."). Yet today the plurality

                                       44
      overrides those compelling reasons and concludes that although
      the Legislature has not chosen to waive sovereign immunity for
      this breach-of-contract claim, the University simply "may not"
      claim immunity in this case.

Id. at 525 (Rodriguez, J., dissent).

      The Lawson plurality recognized that the Legislature was due

deference but concluded that such deference was not abridged - because the

Lawson exception gives effect to a statutorily recognized claim, as follows:

             Allowing suit against the government for breach of an
      agreement settling a claim for which immunity has been waived
      does not interfere with the Legislature's policy choices. On the
      contrary, having determined to allow suits on such claims and
      prescribed the available remedies, the Legislature must surely
      have considered -- indeed, hoped -- that claims would often be
      settled. If anything, for the government to be immune from the
      enforcement of such settlements would impair the purposes of the
      waiver by limiting its effectiveness in cases not tried to a final
      judgment.

                                       ***

      Once the Legislature has decided to waive immunity for a class
      of claims, the inclusion of settlements within the waiver is
      consistent with that decision.

                                       ***

      In resolving this issue, we have concluded that the dissent's rigid
      view of immunity from suit for breach of contract would impair
      the effectiveness of the legislative waiver of immunity expressed

                                       45
      in the Whistleblower Act by pressuring the government and some
      claimants to remain in litigation rather than settle.

Lawson, id. at 522-23 (plurality, emphasis added).

      Enforcing settlements of claims which have not been statutorily

authorized denies due legislative deference and is inconsistent with the

policies recognized by both the Lawson plurality and the Lawson dissent. As

noted, this court has recognized that the Lawson plurality “found a waiver of

immunity in the situation at bar only because it concluded that the

Legislature intended one.” Neal, 2011 WL 1744966, *13 (emphasis added).

      The following underscores the fact that Lawson’s application is limited

to claims on which immunity has been statutorily waived.

      Where the Legislature has chosen to waive immunity as to a
      cause of action against government, government settles the
      claim, and then government allegedly breaches the settlement
      agreement and tries to invoke immunity as a bar to any claims for
      breach, Lawson holds that the immunity that would ordinarily bar
      the claims for breach (aside from some sort of independent
      legislative waiver) does not apply.

Rogers, 2015 WL 4718726, at *5 (Pemberton, J., concurring) (emphasis

added).

      The Legislature is better suited than the courts to weigh the conflicting


                                      46
public policies associated with waiving immunity and exposing the

government to increased liability, the burden of which the general public

must ultimately bear. IT-Davy, 74 S.W.3d at 854; City of New Braunfels v.

Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex.App.–Austin 2014, no pet.)

(the Texas Supreme Court has repeatedly emphasized that it defers to the

Legislature to determine whether, when, and how sovereign or governmental

immunity should be waived).

      Hughes relies on City of Carrollton v. Singer, 232 S.W.3d 790

(Tex.App.–Fort Worth 2007, pet. den.). However, Singer is consistent with

Lawson's application to statutorily authorized claims.

      In Singer, the court applied Lawson to an agreement settling an

eminent domain proceeding - in which proceeding the Singers asserted a

claim against the City alleging inadequate compensation for the City's

acquisition of their property, and for which the City would not be immune.

Singer, 232 S.W.3d at 800 (Tex. App.–Fort Worth 2007, pet. denied). The

Singer court observed that condemnation is a process created entirely by

statute. Id. at 797. The court held that the landowners settled a claim for

which the governmental entity's immunity is statutorily waived and that

                                       47
enforcement of that settlement necessarily is included within that initial

waiver. Id. at 799-800.

      Thus Singer is consistent with Lawson's limited application, being

application to the settlement of statutorily authorized claims. Because the

MPA did not settle a statutorily authorized claim, Lawson waiver should not

be applied.

                                Any Recovery
                     Should Be Limited To A Reata Offset

      Reata applies retrospectively. See Putnam, 294 S.W.3d at 325-26

(given that the Texas Supreme Court has seen fit to apply its decision in

Reata retrospectively, including to those cases pending on appeal at the time

Reata was issued, we see no reason not to do so in the present case as well).

The principles underlying Reata date back to at least 1943. See Reata, 197

S.W.3d at 377 (observing that Reata court merely applies principles

promulgated as early as 1943 in the Humble Oil case); cf. Federal Sign v.

TSU., 951 S.W.2d 401, 408 (Tex. 1997) (the three times this Court

considered sovereign immunity in the breach of contract context, we held that

the State is immune from suit arising from breach of contract suits).


                                       48
      If Reata’s judicially implemented limitation on the contours of

immunity is engrafted onto the Lawson waiver rule, then logic weighs in

favor of likewise engrafting and applying Reata’s limited scope of

jurisdiction: the trial court would not thereby acquire jurisdiction over a

claim for monetary relief against the governmental entity in excess of

damages sufficient to offset the governmental entity’s recovery, if any.

      This Court has recognized the limited scope of jurisdiction imparted by

Reata:

      In Reata, the court held that when a governmental entity files a
      lawsuit or otherwise seeks affirmative relief, it waives immunity
      for connected, germane, and properly defensive counterclaims,
      but only to the extent those counterclaims offset the claims of the
      government entity. 197 S.W.3d at 377 (“Absent the Legislature's
      waiver of the City's immunity from suit, ... the trial court did not
      acquire jurisdiction over a claim for damages against the City in
      excess of damages sufficient to offset the City's recovery, if
      any.”).

Putnam 294 S.W.3d at 324-25.

      A contrary rule (applying an unlimited waiver of immunity) would

raise a disincentive for governmental entities to settle claims. If in the

absence of settlement governmental entities are (under operation of Reata)

exposed to a limited waiver of immunity (damages limited to an offset), but

                                        49
by settling are exposed (under operation of Lawson) to an unlimited waiver

(and unlimited damages), then governmental entities are not likely to settle

claims. Fewer settlements means more litigation.

       Hughes seeks damages in the amount of at least $3,000,000 plus

attorney’s fees. [Appendix3] If the County’s voluntary intervention in the

SMU litigation, or its conduct, triggered a waiver of immunity (disputed),

then the trial court did not thereby acquire jurisdiction over Hughes’ claim

for monetary relief against the County in excess of an amount sufficient to

offset the County’s recovery (if any).

                 Alternatively Lawson Should Not Be Applied
                       To A Contract Executed in 1994

      If it should be determined that Reata's judicially implemented

limitation on the contours of immunity (jurisdiction limited to an offset) is

inapplicable, then it would be contrary to public policy to apply the Lawson

waiver rule to the MPA. See Putnam, 294 S.W.3d at 325 (although Texas

Supreme Court decisions usually apply retrospectively, exceptions may be

recognized when considerations of fairness and policy dictate prospective

effect only).


                                         50
        The contract herein made the subject of suit, the MPA, was executed in

1994. The Lawson rule was not announced until 2002 and even then it was

supported only by a plurality. The rule is yet to be applied by a majority of

the Supreme Court.

        The Lawson plurality supported its immunity waiver by entertaining a

presumption that a governmental entity calculates risk when entering into a

settlement agreement. The plurality observed that the governmental entity

trades unknowns for knowns, “being obligations that are more accurately

assessable.” Lawson, 87 S.W.3d at 522 ) (plurality). However, here, it cannot

be said that the risk (a Lawson immunity waiver) was known to the County in

1994.

                  Record Does Not Support A Lawson Waiver

        As was demonstrated, the Lawson rule provides that immunity is

waived on a breach of contract claim if three elements are satisfied:

1- a claim was asserted against the governmental entity;

2- the entity was thereby exposed to suit because of a waiver of immunity;

and,

3-the claim was settled by the agreement made the basis of suit.

                                       51
      Hughes argues that the County lost its immunity on SMU litigation

claims by voluntarily intervening in the SMU litigation (being the Reata

immunity exception). Hughes reasons that the Mutual Partial Assignments

(the source of the library naming provision) as a consequence settled a claim

as to which the County had no immunity (the Lawson immunity waiver).

      However, even if this co-mingling of theories (Reata and Lawson) had

merit, the pleaded facts do not fit the theories. The County’s intervention in

the SMU litigation did not implicate the Reata immunity exception. Even if it

had, Lawson waiver would not be implicated because: (1) Hughes asserted no

claim against the County (as contrasted with a claim against SMU); and, (2)

the Mutual Partial Assignments (MPA) did not settle a claim.

      The record does not implicate the Reata immunity exception. The

County’s intervention in the SMU litigation did not implicate the Reata

immunity exception (being the second Lawson element - “exposed to suit

because of waiver”).

      The Reata exception has application only if the governmental entity

asserts a claim for damages. The Reata court held: "Once it asserts

affirmative claims for monetary recovery, the City must participate in the

                                       52
litigation process as an ordinary litigant, save for the limitation that the City

continues to have immunity from affirmative damage claims against it for

monetary relief exceeding amounts necessary to offset the City's claims."

Reata, 197 S.W.3d at 377.

         In contrast, a governmental entity's affirmative claim for declaratory

relief does not have any effect on the entity's immunity. City of McKinney v.

Hank's Rest. Group, L.P., 412 S.W.3d 102, 116 (Tex.App.–Dallas 2013, no

pet.).

         Here, Hughes pleads that the County sought declaratory relief (“sought

a declaration”). (CR:807) Hughes thereby negated the claimed waiver of

immunity. The County’s intervention did not waive the County’s immunity

as to claims asserted against the County by Hughes (if any).

         Additionally, the County’s intervention in the SMU litigation did not

implicate the Reata immunity exception because, as between the County and

Hughes, the County's SMU litigation claim was defensive. The Reata goal is

to provide the party sued an opportunity to assert defensive claims. See

Reata, 197 S.W.3d at 374 (where a state voluntarily files a suit and submits

its rights for judicial determination, the defense will be entitled to plead and

                                         53
prove all matters properly defensive). The Reata court held that “it would be

fundamentally unfair to allow a governmental entity to assert affirmative

claims against a party while claiming it had immunity as to the party's claims

against it.” Reata, 197 S.W.3d at 375-76 (emphasis added).

      Here however, as between the County and Hughes, in the SMU

litigation it was the County which stood in the defendant’s shoes. In this

regard, the County did not initiate litigation with Hughes. The County sued

SMU (by intervening in the pending suit).

      If the County is deemed to have asserted a claim against Hughes

(disputed), the claim is defensive in nature and as such would not trigger the

Reata exception to immunity. Cf. Smith v. Lutz, 149 S.W.3d 752, 758

(Tex.App.–Austin 2004, no pet.) (since IT-Davy, this Court has only

recognized a waiver of immunity in contract cases when the State has first

sued the contracting party).

      Hughes pleads that he intervened after the County had intervened.

(CR:808-809) Hughes thereby negated application of a waiver based on

voluntary litigation. As between the County and Hughes it was Hughes who

stood in the plaintiff’s shoes and, consequently, Hughes cannot invoke the

                                      54
benefit of a voluntary litigation doctrine which is designed to afford fairness

to a defendant.

      The record does not implicate the Lawson immunity waiver. Even if

Hughes had satisfied the second Lawson element (exposed to suit because of

waiver), under the facts pleaded the Lawson immunity exception would not

be implicated because Hughes failed to satisfy the first and third elements.

Element One: In the SMU litigation Hughes asserted no claim against the

County (as contrasted with a claim against SMU) and thus had no claim

against the County that could be deemed settled by the Mutual Partial

Assignments (MPA). Element Three: the MPA did not settle a claim - it was

the post-MPA agreement and judgment which settled claims.

      The trial court found that the MPA is a “mutual settlement agreement.”

(CR:833) The meaning and intent of this finding is not clear. The trial court

erred as a matter of law if it thereby determined that the MPA settled a claim

asserted by Hughes against the County - the record conclusively negates such

a conclusion. The fact that the trial court granted the plea to the jurisdiction

implies that the court did not assign such a construction to the MPA.

      In the SMU litigation Hughes asserted no claim against the County (as

                                        55
contrasted with a claim against SMU) and thus had no claim against the

County that could be deemed settled by the MPA. In such litigation, Hughes

and the County each sought to establish ownership of assets which were

being enjoyed by SMU. Neither Hughes nor the County therein asserted a

claim against the other.

      In this regard, Hughes pleads that the County sought “a declaration that

the residue of the gift to SMU belonged to the County Library.” (CR:807)

Hughes pleads that Hughes sought “a declaration that because of the lapse in

the gift of the residue to Tom Green County, the residue of the gift to SMU

belonged to [the uncle’s] heirs at law [the Hughes group].” (CR:808 -

emphasis added) Although the relief sought by Hughes and the County

conflicted in the sense that relief for one precluded relief for the other, the

claims were asserted against SMU.

      Additionally, the MPA did not settle a claim. It was the post-MPA

agreements and judgment which settled claims. The MPA merely altered the

ownership structure of the claims asserted by Hughes and the County against

SMU.

      By the MPA, the Hughes group assigned to the County "50% of the net

                                        56
proceeds they actually receive from [the SMU litigation]." (CR:662-663)

Likewise, by the MPA the County assigned to the Hughes group "50% of the

net proceeds it actually receives from [the SMU litigation]."(CR:662-663)

Similarly, the MPA provides that “[t]hese mutual assignments are irrevocable

and are intended to be a mutual exchange of 50% of the respective interests

of the parties hereto in any recovery under said cause against SMU and any

other adverse parties who may be joined in the cause by mutual agreement of

the parties hereto.” (CR:664)

      In this manner, the MPA merely transfers an interest in net proceeds.

The MPA expressly disavows any intent to extinguish claims, providing in

relevant part as follows: "[T]his document is in no way intended to eliminate

or reduce in any fashion the cause of action, claims, or rights held by the

heirs-at-law or the County." [Appendix2] (emphasis added).

      Hughes reasons that any claim asserted by Hughes against the County

in the SMU litigation would still be viable if the MPA did not settle that

claim. However, as noted, Hughes did not assert a claim against the County.

      In any event, the post-MPA agreements and judgment (not the MPA)

settled claims. The County disputes Hughes’ assertion that one of these post-

                                       57
MPA agreements, the Compromise Agreement [Appendix 5], “does not

provide for any releases between the County and the Hughes heirs.” (Brief:4)

      The SMU litigation claims were settled by the Settlement Agreement,

the Compromise Agreement, and the Final Judgment. The Compromise

Agreement [Appendix 5] summarizes the claims asserted by SMU, the

County, and the Hughes group and provides that by the Settlement

Agreement [Appendix 4] (another post-MPA agreement) the parties agreed to

a “complete and final compromise and settlement of such suit and all of such

disputes.” Similarly, the trial court signed a Final Judgment [Appendix 6]

which recites that “all matters in controversy between the parties which is the

subject matter of this suit have been fully and finally agreed to and settled.”




                                       58
             Waiver of Governmental Immunity - By Conduct

      Hughes observes that he pleaded two grounds for waiver of immunity

from suit: (1) waiver of immunity for breach of a settlement agreement under

application of the Lawson case and (2) waiver of immunity by conduct.

(Brief:7) He argues: “The issue facing this Court is whether the County

waived immunity from suit for its breach of the Agreement – either by

breaching a settlement agreement under Lawson or by its conduct in

breaching the Agreement.” (Brief: 8) By “Agreement,” he refers to the

Mutual Partial Assignments (MPA) which contains the library naming

provision. (Brief:3)

      This section will address the second issue: waiver of immunity by

conduct. This ground for waiver of immunity has special relevance to

Hughes’ equitable claim captioned "money had and received," alleging that

the County accepted the benefits of the MPA and unjustly retained SMU’s

settlement payment. (CR:813)

      Hughes’ pleadings do not support a waiver of immunity by conduct.

Hughes pleads: “Tom Green County has waived sovereign immunity from

suit as a result of its conduct in entering into and then breaching the Mutual

                                       59
Partial Assignments between Hughes and the County.” (CR:806)

      Hughes pleads the following facts in support of waiver by conduct

exception to immunity:

      18. At the time that the $1,000,000 settlement offer was made,
      and although he was already delegated authority, Timothy
      Weatherby contacted the other County Commissioners, and they
      all agreed that the County's $500,000 share was "significant" (as
      it constituted the largest single cash donation the County had ever
      received), should be accepted, and warranted naming the Central
      Tom Green County Library in honor of Duwain E. Hughes, Jr. or
      Frances Hughes Crews, as set forth in the Agreement. Id.

      19. Because the Tom Green County representatives at the
      mediation stated that the County's portion of SMU's offer would
      be substantial enough to warrant naming the Central Library as
      contemplated in the Assignment Agreement, the Heirs-at-Law
      agreed to go along with Tom Green County and accepted SMU's
      offer. Id. Under the terms of the Assignment Agreement, the
      Heirs-at-Law and Tom Green County split those proceeds 50/50.
      Id.

(CR:808)

      These statements alleged to have been made at mediation should not be

considered for any purpose. Use of the statements is barred by the mediation

privilege, being Tex. Civ. Prac. & Rem. Code § 154.073. This statute

provides that, subject to exceptions not shown applicable by the record,

      a communication relating to the subject matter of any civil or

                                      60
      criminal dispute made by a participant in an alternative dispute
      resolution procedure, whether before or after the institution of
      formal judicial proceedings, is confidential, is not subject to
      disclosure, and may not be used as evidence against the
      participant in any judicial or administrative proceeding.

Tex. Civ. Prac. & Rem. Code Ann. § 154.073 (West).

      Because the statute indicates such privileged information cannot be

disclosed or considered, it therefore follows it is a substantive defect that

cannot be waived by failing to obtain a ruling from the trial court.

Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 793

(Tex.App.–Dallas 2013, pet. denied). Moreover, the County pleaded the

statute in bar of such representations. (CR:614)

      The Hydroscience court observed that “[p]arties must not be allowed to

use evidence from mediation to dispute terms of a settlement agreement,

particularly years later.” 401 S.W.3d at 796. Here, the MPA [Appendix2]

(executed in 1994) expressly provides that the commissioners court will have

discretion to determine whether the recovery is substantial enough to name

the library in honor of the Hughes family. Hughes would use statements

allegedly made in mediation to establish that the County’s commissioners

court had no such discretion, notwithstanding the fact that Hughes pleads that

                                        61
the 1994 commissioners court subsequently (after the statements were made)

ratified the MPA. (CR:809)

      Additionally, statements made by commissioners outside the context of

an official meeting should not be considered. The County is not bound by

any such representations. See Tarrant County v. Smith, 81 S.W.2d 537, 538

(Tex. Civ. App.–Fort Worth 1935, writ ref'd) (the commissioners' court does

not act by the statement of one member thereof at the local drug store and

another at the county victuals emporium - they meet as a court and transact

the county business in open session); cf. Labrado, 2012 WL 43385, at *3

(only the Legislature, not contracting parties, may waive a governmental

unit's immunity).

      In any event, this court has repeatedly declined to apply a waiver by

conduct exception to immunity, as is demonstrated by the following:

              Carowest's notion that the City can unilaterally waive its
      governmental immunity through its own actions traces back to
      the Texas Supreme Court's now-infamous footnote in Federal
      Sign v. Texas Southern University intimating that "[T]here may
      be . . . circumstances where the State may waive its immunity by
      conduct other than simply executing a contract so that it is not
      always immune from suit when it contracts." But in the years
      since it decided Federal Sign, the [Texas Supreme Court] has
      clarified—and repeatedly emphasized—that it defers to the

                                      62
      Legislature, not the actions of individual governmental units, to
      determine whether, when, and how sovereign or governmental
      immunity should be waived. In so doing, moreover, it has
      squarely rejected the notion that a governmental entity with
      authority to enter contracts, or an agent acting on its behalf, can
      contractually waive immunity from suit, as Carowest insists
      occurred here. It has similarly declined repeated requests to
      recognize a "waiver by conduct," and has never gone further than
      its suggestion in Federal Sign that such a waiver might
      conceivably occur under some set of facts it has not yet seen.
      Similarly, in the absence of further guidance from the supreme
      court, this Court (at least in recent years) has consistently rejected
      requests that we recognize "waivers by conduct" under a variety
      of factual scenarios.

City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521

(Tex.App.–Austin 2014, no pet.).

      Hughes cites Texas Southern University v. State Street Bank & Trust

Co., 212 S.W.3d 893 (Tex.App.-Hou. [1st Dist.] 2007, pet. denied).

However, this Court has expressly rejected application of State Street. See

Labrado, 2012 WL 43385, at *3 (court does not have discretion to recognize

State Street’s waiver by conduct exception to sovereign immunity in the

absence of Supreme Court authority).

      Other courts have likewise criticized State Street. See e.g. City of

McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 114


                                       63
(Tex.App.–Dallas 2013, no pet.) (the amorphous nature of State Street’s

waiver-by-conduct doctrine weighs against its adoption); Leach v. Texas

Tech Univ., 335 S.W.3d 386, 401 (Tex.App.–Amarillo 2011, pet. denied)

(State Street contradicts the Supreme Court's statements about the only

avenue for redress being through the Texas Legislature).

      Some courts have distinguished State Street on the ground that the

State Street case involved an egregious set of facts. It appears that no court

has applied State Street to find a waiver of immunity.

      Before this Court expressly rejected any application of State Street, this

Court distinguished State Street in Smith v. City of Blanco, 2009 WL

3230836 (Tex.App.–Austin 2009, no pet.). The Court observed that in State

Street TSU’s attorney had given false assurances of the validity and

enforceability of the contract to lure CMS into the contract, then TSU

reneged on its agreement, and tried to hide behind the cloak of immunity.

2009 WL 3230836, at *4. In Blanco, this Court failed to find such egregious

conduct - stressing that the city had made no representations to plaintiff

concerning immunity. Id. The court held that the plaintiff’s potential

misunderstanding of the law was not enough to justify an equitable waiver of

                                       64
immunity against the City. Id.

      As in Blanco, the County is not alleged to have made any

representations to Hughes concerning immunity. Even if Hughes presumed

that the County was obligated to name the library in honor of his family, a

misunderstanding of the law does not justify an equitable waiver of

immunity.

      In Jonah Water Special Util. Dist. v. White, 2009 WL 2837649

(Tex.App.–Austin 2009, pet. struck), this Court failed to find the

“extraordinary factual circumstances” presented in State Street where the

record did not indicate that the defendant had procured a contract with

promises it intended to break and the lawsuit appeared to have grown out of

what was initially a good-faith disagreement over performance under the

contract. 2009 WL 2837649, at *3.

      Here, the County asserts immunity in an effort to avoid the expense of

trial. The pleaded facts do not demonstrate that the County made promises

which it intended to break.

      Here, there is a good-faith dispute over performance of the library

naming provision: whether the 1994 commissioners court found that the

                                      65
SMU litigation recovery was substantial enough to name the library in honor

of Hughes’ family (disputed); and, even if it had, whether in the course of

naming the new library the 2011 commissioners court is somehow precluded

from making its own determination (a contrary determination). This issue

was previously discussed.

      Finally Hughes, having waived his statutory remedy, has shown no

right to equitable relief. Hughes could have sought legislative consent to sue.

See IT-Davy, 74 S.W.3d at 854 (if a party who contracts with the State feels

aggrieved, it can seek redress by asking the Legislature to waive immunity

from suit). Hughes does not plead that he even sought, much less obtained,

legislative consent. Hughes has not pleaded a basis for waiver of immunity

by conduct.




                                      66
                                  PRAYER

      Appellee Tom Green County prays:

1. That the judgment be in all matters affirmed.

2. That Appellee have such other relief as to which it has shown itself

entitled.

                                           Respectfully submitted,




                                           JAMES DAVID WALKER
                                           P. O. Box 41
                                           Milano, Texas 76556
                                           SBOT 20706000
                                           Phone: (512) 636-9520
                                           Email: walker@2appeal.com
                                           COUNSEL FOR
                                           TOM GREEN COUNTY




                                      67
                   CERTIFICATE OF WORD COUNT

I certify that this document contains 12,672 words.




                      CERTIFICATE OF SERVICE

      On June 17, 2016, this document was electronically served on Counsel
for Appellant: David H. Smith (dhsmith@dgclaw.com).


                                           James David Walker




                                      68
                  NO. 03-16-00132-CV
             HUGHES V. TOM GREEN COUNTY



             APPENDIX TO APPELLEE’S BRIEF

Appendix1.   Order Granting Tom Green County’s Plea to the
             Jurisdiction (CR:833)

Appendix2.   Mutual Partial Assignments (CR:692-700)

Appendix3.   Plaintiff’s Third Amended Petition to Enforce Settlement
             Agreement and Declaratory Judgment Action (exhibits
             omitted) (CR:805-815)

Appendix4.   Settlement Agreement (CR:751)

Appendix5.   Compromise and Settlement and Release of All Claims
             (RR3:241-247)

Appendix6.   Final Judgment (SMU Litigation) (RR3:159-163)
                Appendix1

            Order Granting
Tom Green County's Plea to the Jurisdiction

                 (CR:833)
                                     CAUSE NO. Al30194C

CHARLES J. HUGHES,                              §      IN THE DISTRICT COURT OF
           Plaintiff,                           §
                                                §
V.                                              §      TOM GREEN COUNTY, TEXAS
                                                §
TOM GREEN COUNTY,                               §
          Defendant.                            §      51st JUDICIAL DISTRICT

                      ORDER GRANTING TOM GREEN COUNTY'S
                           PLEA TO THE JURISDICTION

        On February 16, 2016, the Court heard and considered Tom Green County's Plea to the

Jurisdiction. After hearing evidence and argument of counsel, the Court finds that Tom Green

County's Plea to the Jurisdiction should be granted.

        It is, therefore, ORDERED that Charles Hughes' claims and causes of action arising out

of or pertaining to the Mutual Partial Assignments are dismissed for lack of subject matter

         ·11-..~ (~--"---!- hLA-c:l ~ '\l{..._.z fYI.~fl,vl PC<-<-~~ f /ts ~)o-r-~
jurisdiction.                                                                                ;   Y'-.
tl ,~ ~Y:le-r J-r; h~ ,'1-._ ~"" ·tVvvt. -h---1 ~w{_~~ b."""'.':r"~'-A-<.....t-;
        Signed this 1b_ day of February 2016.                             · ·- ~ "'""'"'
                                                                                                   q
                                                                                                   f
                                                                                                        A
                                                                                                        ~




                                                       JAY GIBSON
                                                  SENIOR DISTRICT JUDGE
                                                  SITIING BY ASSIGNMENT




                                            833
       Appendix2

Mutual Partial Assignments

      (CR:692-700)
                                                                                                      Filed for Record
                                                                                                      2/9/2016 3:42:51 PM
                                                                                                      Sheri Woodfin, District Clerk
                                                                                                      Tom Green County, Texas




          Wli!IQAS, Clui.rles Hughes, CUcl crew Ca:a:tu, uci Joan Crews
    Hoyt, (herein~ft:er referred to as the "hei2:s-•t:-law•) ·have filed an
    intervention in Cause No, CV91•0426-A, styled              •rn   Be:   !!'.he will at
    Puwa.in   ~.   Hughes,   Jr.,   /Jec:eased, n   against Southern Methodist
    Univer~itr      (hereinafter referred to as            "SMU"),       believing and
    clatmi~g    that, ~ng other things, the Last Will and mestament of
    D~Jlmin J!l,   Jluqhes, Jr. cioes not specify how hia estate will l:le
    haZidl.etl or to whom it will pass aftu all bequests have been
    satisfied clue to    en~nt        fulfillments anci lapsec1 bequests, such
~   that the heirs-at-law, as defined by Texas legal statutes, should
    i.nheri t from Duwain 2. Hughefl, Jr. ; anci
          wal!lRBAS, Tom Green County (hereiuefter referreci to as "the
    County") haa filed an intervention in Cause No. CV91-0426•A, styled
    "In Re:    !l'he w.ill o£ Duva.:tn B, Hughes 1 Jr, ,   Depe~tsecl,   " against SMU,

    ))elievinq and. clailllinq that, among other things, the :trast Will ud
    Test.eu111mt of Duwain 1!1. Bughell, Jr. specifie11 that the ·estat:e use'l:s
    in eXt::ess of the l;leq11est to SMU   sb~ld    pass to t.he County 1 pUrsuant
    to the residuary a~a~se contained in the willJ apd
          WJ:Ul:IU!lAS 1 the heirs-at-law and the Co\Ulty would inevitably
    suffer    s~ve~e   costs and legal     ~~see      by   i.ncie~endently pu~eqing

    the!r causes of aotiop regarding the construction of the will of
    Duwa~n    E. H11qhea, Jr. (hereinafter referred to as "the Will") due
    to the    unl~ted     funds available to SMD, even thoqgh it is clear
                                                                             '      EXHIBIT
                                                                             ~'       51
                                                                             I <le. C.O-rJ.oll"u-..
                                                                  HUGHES_RRFPOOOOO I




                                       692
that either the beirs-at-~aw or the County or bath are clearly
entitled, l:»y both tbe terms of the Will as well ae the applicable
Wexaa     st:atl!l.1:t!JJ 1    rules    aud   laws,   to    receipt    af      all   U101U.ea,
~tropert.if!s,     anci mineral int~s'ts uncia:~: the Duwain B. Bughes, Jr.
Will ~ ~eas of the gift to SMU (the                    DUW'\iU B.     Bugbes, :Sr. Chair
fo~ l~g11sh         Qt        Soutbe~   Methodist univerqity) upon aaid Chair's
endow.ment havinq been fulfille4J an4
      WIBQAS, the Chair was establ.iabed                   wi~   an endgwment in exaees
of $5DOtODO, sueh              ~h4t    the testamentary iDtent of the gift to SMU
in the Will has beeQ tully aA4 completely fulfilled                      ana satisfiedf
and
        ~,              there is no dispute among the signataries to this
c:loamue111: that SJm is               ce~ainly   not entitled to anything above
$500,000 for the Chair eJldowment, puz:osa.ant. to the WUl; and
        WIQilQAS, the e1gnatories hereto a.~ee th~t this cloaument is in
no way iptended to eliminate or reduce in any fashion tbe causes of
action, claims, ar rigbt:s held by the be!rs•at•law                      OJ:    the County;
and
        WBBRaAS, SMD has filed sUit iA Cause wo. CV9l-04260A, styled
"In Re:       !l'he will tJf Dawa.in B. Hughes, Jr., Deaeaseq," simply                    fo~

the   p~ase        of    o~tainiug       all the assets and      ~o4uqtian      from   tho~e

asae~s    to qse for pu:poaes other than endow.m&Pt of a·Chair in the
SMD Bnglisb Pepartment, all of whiah is wholly                        inapp~opr~ate       and
cantraey ta the testqeni:aey intent of                     D~in    I· Buglles, Jr • ; and
        WBBRBAS, Sm:J sltauld not and is not entitled to talce more than
was bequeathed to it by the Will, i.e., $500,000 ·for a Chair in


                                               -2-



                                                                      HUGHES_RRFP000002




                                              693
    Bnql:Lall, un4e:r any legal theoey, pr~c:tple of equity, o: claim of
    jusUQe; and
          wa.KBas,       ~he heirs-at-law and the CQunty De1ieve, an4 fe~l
    that tbe Will is cleaJ:, that Duwai.u I· Bugbes, J7:.                 IJBVe;r:   intended.
    h1a   eDt~$     mineral e•tate to pass to SMD far             wba~eve~       unlimited
    pu:p~aes      it desired.
          HOW, TJmlWI'DRB, know all men by these presents:
          Wba't: tlle 'Q.ndersigned parties ta -this agreement 4o hereby agree
    as fallqws:
            l.     P;p;j;ies •
          '!be pzu:ties to thip        a~~ement     are Chulep Bugbes, Carol Crews·
    C~e~,        and Joan C:ewa Hoyt          (bere1naft~ aol1e~tively :refe~ed            to
    as tttbe     ~ei~s-a.t-1"-wn)    and wam G:t:een county (he:.:eiDafter referz:oecl
~   to as    a~~e   CountyP).
            2.     Aqreement to Qonttnne         L~tigation    and to As1iqn Prcaeeds
    of. Causes of Ag'b.iPD•
            Upan the exeaut1an of            ~his agra~t      py all   p.rties, and iD
    aonside~ation        of tbe county's actions mentianed herein, Charles
    Bugbee, Ca.rpJ.      c~ews   carter, and Joan crews Boyt agree to aoDtinue
    the litigatioa against SMD, to amend the pleacUugs as all                         pa,rtie~

    hereto       ~ointly     cleean appropriate in JJue:h        au:Lt,     and. to      seelc
    collectio~       of tbe sums awed by SMD to Ube heirs-at-law and the
    Coun~J'•     mbe   hei~a .. at•:t.aw,   as herein   def~ed., f~rther    agree, and by
    affixiug tbeu sigllatures to th:Ls document, do herelly assign to aJUi
    for the      b~nefit    of   ~am Gree~ Coun~y       50% of the net·prooeeds they
    actual~¥ +~aeive f~om           Cause mo. CV9l-0426-A1        sty~ed     nzn Re:      ~he




                                                                    HUGHES_RRFP000003




                                              694
    w.i.ll of Duwa.tn B. Bughes, .:rr. , Deoeased, " aft~r satisfaction of all
    expenses,         co~t~,    an4 leg•l fees, and SOt of all mineral               inte~ests

    they aot~~tl~ reeaive tram said lawsuitJ however, ~ designated
    hei~s~qt-la~             shatl   exclusively      ~etatn     all     executive         ~igbta
    reg~ding          qll    s~ab miDe~al inte~ata.        ~his   partial assignment to
    WOJP   G~ee11    Co1mty .is without    ~estriation    or limitatian rega.r:dinq the
    use to which tbeae funds or mineral interests may be applied.
            CJille Couty fw:tber ag:-ees, ill oonsicieratiofl of the aatianfl of
    the 4ea.ignatec.t heirs-at-law mentianecl             here~,       that the CoWl'l::y, by
    affix,i.ng the signature of the duly authorized :representative of the
    County to this dcoqment does hereby assign to and for the benefit
    of Chutes Bugbes,                Carol Crews Carter, and Joan Crews Boyt,
    jointlf, SO% of tbe net proceeds it eotually                       ~eceives    from C-use
~   mo. ·cv94--0426-A, styled "In .Re: · !'he w.tll of .Duwa.tn :s~ Hughes,                     Jr.,
    Deceaseq, rr af-ter satisfaat=.ian of all             e~penses,      casts, and leg-.1
    fees cm4 sO% of All mineral inte:r:ests it ac1:ui:J.ll' receives from p v·4
    aaic! 1•wt:suit; howeve~, the Coqt~t.y a~ees that the desi~at.ed bei:a:oa--#,At
    at-law stJ.all exclusively ret,..in an4/or be aa~igned herein all ~~J,
    exeautive righte regarding- a.ll such mine:r:a.l inte;-este.                    In furth~r            /:i
                                                                                                           /Jsc·/.J,~
    aonsider~tion of t~~s ~tter, the County agrees to                          name the         ~n            tC
                                                                                    Cl~dj~r      mnteS'-4 rr:w
    county libraey,              in honer of Dq.wa.in B.          Bugbee ,      ;Jr, ,     if    the
    co~ssioners             aoQsider the County's ulttmate        ~ecover,r,in           the cause
    to 13e •IU!stlilltt,i.al enough for s\\Ch ::ec:ognition.            fia   ~a I: evauL r      l!ohe    /j
    lllaiu iJ:I;iz;IUO:t-.nti4I be I'Uilliarl Lhe   ~uweeb1 B.   Hughs$, at!. U b!I!M!Y           ~~
    -et>her   1!;44111#   l:l:mL :L=cs:puxal:ae ~e'eet:e:e 'e name.-                                ("   .f/('

                                                -4-


                                                                          HUGHES_RRFP000004




                                            695
            ••:axe~tive t;l.gh~a 11 a~a1~                mean the excl.usiva :r:igbt to exeaate
oil, qaa and mine.~:al. lease a without jainde: · of the County as to the
cambine4          ~erals        of the         be~s-at-law          ana    the County and does not
inalud.e bonQsea OJ:" other %'eveDtaes fr011 the respective mineral·
inte~~at~          of the     p~ie"•

            mbepe mutual assig,qments are irrevocable and                          are     intended to
be    Ito   mutual exahange of so• of the .respective :Lnterests of tbe
parties hereto in any recovery uncler sa.icl cause against SMtJ and any
othe+        adve~se pe:t~es             who may be joined in the                  a~use ~y     mutual
a~eament of the parties'be~to.
            3.     Prgaegution o£ L!tiqaticp                      agd   §ettlement•
            ~~am    the date of tbesa mutual assignments, the undersigned
partiea,           in aonjuctiou with their at.to:clley,;s, 'l'bompaan,                           Coe,
cousins I Iz-ans 1             :t.·.:r..t.    and Ball & :tcane, r...L.f. shall be jaintly
:esponaible fo:r: the contLnuation and praseaution of t;.he litigation
involving SMD and any other culpable parties wbo                                   ~y    be added as
parliee .tn sucA             actio~&.        Any clQ..ims originally awned, prior to this
assi~en~,              b.Y   ~~ Gree~           County      ~y    be brought i~ its name or in
the     uam~       of the     heirs·~t-1aw1               and any alatms ·originally owned by
the hei:rs-at.•law, pz:iar to this ass.i.gnment, ataY be brought in their
names        o~    in the name af             m~ G~een           County.    !be   f&~ies    and their
atta~~eyp          shall joiatly make the determination regarding in whose
name(s)          t~e   su,i.t aba.ll be cant:Lnued.                Jlotbing in tbifJ a~eement is
i~te~4e4 ~o preve~t                  the parties             fr~    filing    sui~,   or    con~inuing

litigati.pn,, both in the                    lla.ti\S   of 1:be assig~ao~ an4 iP the name cf the
assignee.           :tt iP flu:tber uncie~stood and ag+eed                    that all signatories


                                                           -s-

                                                                                  HUGHES_RRFPOOOOOS




                                                        696
    hereto will fully and faithfully                     coo~ate      in tbe    deve~apment   and
    pros~u'tign          of the litiga.tion, wlliah will include, but noi: lle
    lild.teQ. t.o, appea.J:a.nae by deposition or a.t tx-i!Ell o:f. any neaessary
    witnesaes,          est:~lishtng       the alaims that are the subject of these
    m\lt\1"1 pu:t.lal assignments, and further,                   avai~ility        for t:ial if
    .i.t ia deemed       neceJ:~sax;y   by counsel iD :eurtherance of tbe proseaution
    au4 to collect           ~he    partially-ass1gne4          p~oceeds   gf the   litigat~on;

    bowevca:r:, all litig•tion &¥-peuaes shall be bame by the heirs-at-law
    and the County, as eetablisbed by their                       ~espective     attorneys' fee
    ag:eemants.
        . It     i&~   fUX'ther expres,.ly unclea:stood and           a~ed      that all control
    over prosecution aa4/or                settl~~t        of   ~he   litigation between tbe
    hei~s-~t-law a~                the County on the one hand              ~~    against SMD or
~   other        C\llfable· parties          O!l   the     other han4      s)lall   be    jointly
    aont~o~lea          cy   t~e   signatories· hereto.
            4.        Re~reaentatipna       GQd Indeqro!tv:
          '»be un4e;'s!gDed. beirs-at-l·aw .J:epresent ·to the county tbat they
    join1=-ly :epz:esant q4             wo~ld.   own a two..tbi%'ds intet"est in the estate
    of all       o~    the   in~estate     heirs-at-law of Duwain B·            B~qhes,   Jr., if
    he had       ~d      without a will at any              t~e    durtnq 1985 throuqh tbe
    present time, tqtd t!hat they jointly :-epresent a,nd. woul.cl own a.· two-
    thit'~ inte.ttest. in the estate of all the intesta.te hei:r:a-at-law of
    nuwain I. :auqhes, Jr. I if he bad died without a will. ail his actual
    date of death, excluding in the l-tter c~~e oniy the one-eighth
    intet:e~at        helci in tnst for the life of Carlotta Hartlnan, remainder
    to the       u~4ersiqned he~rs-at•law.




                                                     -6-


                                                                               HUGHES _RRFP000006




                                                   697
        l~b     of th~ undersigned heirs-at-law ~ep~esents·to t~e county
 tba;t. t.be intestate 1nte3:'8sts desc:z:ibed above and. t~eir claims
~ato ~amain           intact as to the assets ana minerals in issue in
· said aa1.Jee     ~d     that   tbez:e have been           na      p:iar    assigmnentt:~,

 eonvey~ncee,       or transfe:• of any kind that would affect •ny a£
 t:heir 1ntereste the:eein, there have been no liens, deed$ of trp.st,
 sec~ity ~nt~rests, o~ otbe~ encumbr~aes                    granted or imposed upon
 any of    th~ir    interests tbe:ein, there have baen no bankruptcy                     a~

 otber     d~btor    p~Qceedings         that    wo~ld     adversely affect          their
 interest$ therein, IUlQ         the~e   ue no other defeats, adverse cla.iws,
 or other      •~tters    that would aaversel7       af~ect        their interests, as
 iutesta~~ be~s,         iu the aesets end minerala in issue in sai4 cause
·other    t~n    the la.w regarding the disposition of an.y excess of tlle
 gift to S)1.U.
         '!be aounty repx-esents to the unde:r:signed beizs-at..-law that the
 c:~ou~t,-'s   inteJ:est .i.n and alainls to the assets ud            mtneral~    in issue
 in said cause, as         ~eneficiar,r     of tbe   ~estdue,        remain intaat and
 that     tbe:e have been no             pria~    assig~nts,           conveyances,      or
 t.-ansfe:rts of any kind. that would. affect the county's interest
 therein, there bave been no liens,                      deed.s    of t%Ust,      security
 inte~esta,       o3:' other enP'UlftPrances qJ:"anted or imposec:l upon its
 inte~est      the+ein,    tne~e   have been      ~o han~ptcy          or other debtor
 proaeeQ!Qes that        wo~ld a4ve~aely        affect    it~     inte%'eet tbe:ein, aRd
 the~e ~e       no other defects, adverse          claim~,        or otber   ~tters   that
 would aqver$ely ~ffect its interest,                       as beneficiary of the
 resi4ue, in the assets and          ~nerals       in issue in said cause, other




                                                                      HUGHES_RRFP000007




                                         698
    tb~u   the effect ai the county's sale of                th~    house desc:ibed in tbe
    residllaiy clause ant! tbe 1-.w regazc;U.ng tl)e dtsposition of uy
    excesa of the gift to SMD.
           In the event a party ha.s assigned let:ls than that party
    rep:eseQts herein that that party hap to a.s:rrign, the assignee party
    or parties shall be antitle4 to recover the def1cienay                              f~am    the
    asaignj.Dg party and. shall have any ather z:emedies                     p~c:avicleci   by law.
           S•        Miscel1apeous.
           Whe signatories hereto apecifiaally waive any conflicts of
    inte:r:est,      whet.he~   actqal az: potential, wbich exi11t, or may exist,
    by   the Ratuat      ~ap~pentation           of all   partie~   he:eto, following the
    execution of tbia dccmnent and the effeatuatian of the lqU.tual
    partial. assignments reflecbecl herein, py the law fixm of Thompson,
~   Coe,   Coua~ne      & I~ans,        ~.~.p.   and Pall & Lane,     ~.~.P.

           '!he   aignata~tes     !u:rther waive any conf1ictca of interest in the
    rep~esent-~ion by ~aappou, Coe, Cousins &                        Iron$,     ~.L.P. of       the
    heirs-at~ law       agai2u1t 'the County, arlcl the repJ:esentation by Ball &
    Lane, :t..;..P. of 1:.he Coun"t:y against tlle heirs-at-law as to any
    clisputes, llreacbes,        O:t'   lld.srepresentations that     Wll'   arise under this
    a.qreeme~t,.

           '»billS   agreement is entere4 into in the St.ate of Wexas and shall
    be   const~~e4 ~4 !~terpreted                 in aeaardanae      wtt~    the laws of the
    Sta1:e of !t'exas.
           tt i•      un~erstood        that the conei4eration stated herein is of a
    oant+actual nature and not a mere recital.




                                                   -a-

                                                                             HUGHES_RRFPOOOOOS




                                                 699
     All partiera to this agreement agree to and w.il·l execute any
document~!   ~eaesr:s4:cy   to comply wi.th iiPY requir~ts iaposed by
~exas 'r~perty     Code 1 12.014(b)•
     Al:S. parties agree that this clocument may Ae exeautecl in
muli:.iple originals, with suah doc:\ll'nents being constned as a single
doaumant.




                                    Duly   ~ tho~imed aep~asentative   of
                                    ~d     fxom mom   G~eeA oaaa~y




                                                           HUGHES_RRFP000009




                                   700
           Appendix3

Plaintiff’s Third Amended Petition
 to Enforce Settlement Agreement
and Declaratory Judgment Action
          (exhibits omitted)

          (CR:805-815)
                                                                                                     Filed for Record
                                                                                                     2/9/2016 3:50:04 PM
                                                                                                     Sheri Woodfin, District Clerk
                                                                                                     Tom Green County, Texas




                                                CAUSE NO. A130194C

CHARLES J. HUGHES,                                                    §         IN THE DISTRICT COURT OF
                                                                      §
                    Plaintiff,                                        §
                                                                      §
v.                                                                    §         TOM GREEN COUNTY, TEXAS
                                                                      §
TOM GREEN COUNTY,                                                     §
                                                                      §
                    Defendant.                                        §         51st JUDICIAL DISTRICT


                              Plaintiff’s Third Amended Petition to Enforce
                        Settlement Agreement and Declaratory Judgment Action

To the Honorable Judge of the Court:

          Plaintiff Charles J. Hughes files this Third Amended Petition to Enforce a Settlement

Agreement he entered with Tom Green County to resolve claims the underlying lawsuit.

I.        Related Case

          1.        This action is being filed to enforce a settlement agreement entered in Cause No.

CV91-0426-A; In re the Will of Duwain E. Hughes, Jr., in the 51st Judicial District Court of Tom

Green County.

II.       Discovery

          2.        Discovery in this action should be governed by the Level III scheduling order entered

in this matter.

III.      Parties

          3.        Plaintiff Charles J. Hughes is a resident of Tom Green County.

          4.        Defendant Tom Green County is a county located in Texas. Tom Green County has

answered and appeared in this suit.




Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action             Page 1

                                                            805
IV.       Venue and Jurisdiction

          5.        Venue is mandatory in Tom Green County. Tex. Civ. Prac. & Rem. Code § 15.015.

          6.        This Court has subject matter jurisdiction over Tom Green County because this action

arises from a settlement agreement entered between parties to an action initiated, in part, by Tom

Green County, and Tom Green County thereby waived sovereign immunity. Kinnear v. Tex.

Comm’n on Human Rights ex rel. Hale, 14 S.W. 299, 300 (Tex. 2000)(holding the state waives

immunity from suit when it files suit); Tex. A&M Univ.–Kingsville v. Lawson, 87 S.W.3d 518, 521

(Tex. 2002)(holding where the state has waived sovereign immunity, and then enters an agreement

settling the claims subject to that waiver, the state cannot assert sovereign immunity as a basis to

avoid enforcement of the settlement). Further, Tom Green County has waived sovereign immunity

from suit as a result of its conduct in entering into and then breaching the Mutual Partial

Assignments between Hughes and the County.

          7.        In addition, Hughes files a declaratory judgement action seeks to invalidate and set

aside a March 1, 2011 motion and resolution of the Tom Green County Commissioners' Court made

in violation of the Texas Open Meeting Act. Texas courts have repeatedly held that the State has

waived sovereign immunity for alleged violations of the Texas Open Meetings Act. See, e.g., Riley

v. Comm'rs Ct., 413 S.W.3d 774, 776 - 77 (Tex. App. - Austin 2013, no pet.). Moreover, this action

seeks recovery of amounts in excess of the minimum jurisdictional limits of this Court.

          7.        In addition to declaratory relief, Hughes seeks monetary relief of over $1,000,000.00.

V.        Facts

          8.        Duwain E. Hughes, Jr. was the uncle of Charles J. Hughes. Duwain Hughes lived

in San Angelo and taught English for many years. Following Duwain Hughes’s death, The Will



Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 2

                                                            806
of Duwain E. Hughes, Jr. (the “Will”) was probated in the County Court of Tom Green County,

Texas, on April 6, 1965.

          9.        Under the terms of the Will, Duwain E. Hughes, Jr. left his then new home, collection

of rare books, and his music collection to the Tom Green County Library board, to establish an

adjunct library in his name. Duwain E. Hughes, Jr. also left the residue of his estate to the Tom

Green County Library Board to pay down the mortgage on the home and for the upkeep and

maintenance of his home. At that time, this residual gift included a significant mineral estate that

was worth several million dollars.

          10.       Inexplicably, instead of honoring Duwain E. Hughes, Jr.’s wishes and maintaining

his home as a library, the County chose to sell the home at a steep discount. This allowed the

residuary gift of Duwain E. Hughes, Jr.’s estate to arguably lapse to Southern Methodist University

(“SMU”), which also received gift of specific mineral interests under the Will.

          11.       On April 9, 1991, Southern Methodist University filed a lawsuit styled In re: The Will

of Duwain E. Hughes, Jr. in the 51st Judicial District Court of Tom Green County under Cause No.

CV91-0426-A (the “Underlying Suit”). In the Underlying Suit, SMU requested that the court

release a restriction on the use of a gift made to it under the Will for the endowment of a Chair of

English for SMU, so that the excess value of that gift could otherwise be used to support and

maintain the English Department for SMU. At that time, the value of the mineral estate that SMU

had received exceeded the maximum amount necessary to endow a Chair for the Department of

English by approximately $4,000,000.

          12.       On May 3, 1991, Tom Green County intervened in the Underlying Suit on behalf of

the Tom Green County Library, and sought a declaration that the residue of the gift to SMU

belonged to the County Library.




                                                            807
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 3
          13.       On March 30, 1993, Charles J. Hughes intervened and sought a declaration that

because of the lapse in the gift of the residue to Tom Green County, the residue of the gift to SMU

belonged to Duwain E. Hughes, Jr.’s heirs-at-law – Charles J. Hughes, Carol Crews Carter, and Joan

Crews Hoyt (the “Heirs-at-Law”).

          14.       The Court ordered the parties to mediation of the SMU Lawsuit on May 26, 1994.

Prior to mediation, Tom Green County and the Heirs-at-Law entered an agreement titled Mutual

Partial Assignments (hereafter the “Agreement”), attached hereto as Exhibit A, by which the parties

irrevocably assigned and divided the proceeds of any recovery in the lawsuit 50% to the Heirs-at-

Law, and 50% to Tom Green County. The signatories to the Agreement were authorized to sign

by all required authorities.

          15.       Specifically, under the terms of the Agreement Tom Green County promised to name

its Central Tom Green County Library in honor of Duwain E. Hughes, Jr. or Frances Hughes Crews,

“if the commissioners consider the County’s ultimate recovery to be substantial enough for such

recognition.” Exhibit A, p. 4.

          16.       The Tom Green County Commissioner’s Court authorized Timothy Weatherby, one

of the Commissioners at the time, to serve as the County’s representative for the mediation. Exhibit

B, Affidavit of Timothy Weatherby. Mr. Weatherby was fully aware that a settlement and

substantial recovery from SMU would trigger the naming obligation under the Assignment

Agreement. Id. Counsel for the County, Phil Lane, and the County Attorney, Tom Goff, also

participated in the mediation. Pursuant to the Agreement, Hughes and the Heirs at Law aligned with

the County at mediation and joined forces against SMU. After the initial separate offers to the

County and to the Heirs at Law, the County representatives and the Heirs at Law moved into the

same room and began negotiating for joint offers from SMU.




                                                            808
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 4
          17.       SMU offered to pay the Heirs-at-Law and Tom Green County $1,000,000 in

settlement for their claims. Id.

          18.       At the time that the $1,000,000 settlement offer was made, and although he was

already delegated authority, Timothy Weatherby contacted the other County Commissioners, and

they all agreed that the County’s $500,000 share was “significant” (as it constituted the largest single

cash donation the County had ever received), should be accepted, and warranted naming the Central

Tom Green County Library in honor of Duwain E. Hughes, Jr. or Frances Hughes Crews, as set forth

in the Agreement. Id.

          19.       Because the Tom Green County representatives at the mediation stated that the

County’s portion of SMU’s offer would be substantial enough to warrant naming the Central Library

as contemplated in the Assignment Agreement, the Heirs-at-Law agreed to go along with Tom

Green County and accepted SMU’s offer. Id. Under the terms of the Assignment Agreement, the

Heirs-at-Law and Tom Green County split those proceeds 50/50. Id.

          20.       On July 6, 1994, Tom Green County Commissioner’s Court met in open session.

During this session, the Commissioners considered the ultimate recovery in the lawsuit to be

substantial enough and ratified the Agreement with Hughes and the Heirs at Law.

          21.       After ratifying the Agreement and the separate agreement settling claims against

SMU and dismissing the lawsuit, Tom Green County deposited the settlement proceeds it received

into a segregated bank account called the Hughes Library Fund. Exhibit B.

          22.       Tom Green County used a part of the Hughes Library Fund to hire an architect to

evaluate potential new locations for the central library, and also utilized a portion of the funds to hire

a grant consulting firm to assist the Library Board with grant applications. Id.

          23.       The planning and preparation for the new library location was interrupted, however,

when financial difficulties caused by bad investments and criminal cover ups by a previous County


                                                            809
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 5
Treasurer made it necessary to utilize a portion of the Hughes Library Fund to assist Tom Green

County in meeting its financial shortfalls. Id.

          24.       The Tom Green County Commissioners discussed the use of the Hughes Library

Fund to assist with the County’s financial burdens with Charles Hughes, who agreed to allow the

fund to be used in such a manner, so long as the County fulfilled its obligation to name the new

Central Library in honor of Duwain E. Hughes, Jr. or Frances Hughes Crews, whenever it was built.

Id. The County agreed to this stipulation. Id.

          25.       Charles Hughes met and spoke with County Judge Mike Brown and Timothy

Weatherby on a number of occasions to discuss the County’s plans regarding the naming of the

Central Library, and was repeatedly informed that the issue would be addressed when the location

for the new central library was chosen, and it was an appropriate occasion for giving it a name.

          26.       The Tom Green County Central Library remained unnamed until March 1, 2011,

when the Tom Green County Commissioners met to vote on naming portions of the new Tom Green

County Central Library, which had just been constructed by remodeling the former Hemphill-Wells

Building. Exhibit C, Excerpt of Minutes of County Commissioners Meeting. Notwithstanding the

County’s agreement with Mr. Charles Hughes, and the donations made by his uncle Duwain E.

Hughes, Jr. —which had the County retained would have had a value of more than $12,000,000—

the County Commissioners read a pre-written "motion" and “voted” unanimously to name the library

the “Stephens Central Library,” in recognition of a recent $3,000,000 donation from Pollyanna and

Steve Stephens. Id.

        27.       In addition to a blank for the Commissioners to fill in with “Stephens Central Library,”

the pre-written motion provided that "Tom Green County's ultimate recovery in [the Underlying

Lawsuit] is not substantial enough to name Tom Green County's main library in honor of Duwain

E. Hughes Jr. [or] in honor of Frances Hughes Crews . . . ." See Exhibit C (emphasis added).


                                                            810
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 6
        28.       On information and belief, the County Commissioners came to a final decision on this

matter and pre-drafted the accompanying motion in a private meeting prior to the public hearing - a

meeting at which neither Plaintiff nor any other members of the public were present. The pointed

reference to the language of the Assignment Agreement clearly indicates the County Commissioners

were aware of the County’s prior obligation to the Hughes family, and entered the March 1, 2011

hearing with a settled intent to disregard that obligation, regardless of the Commissioners Court’s

decision on July 6, 1994. Thus, the naming decision was a foregone conclusion, and the County's

purported deliberations and "vote" at the hearing were simply a sham. The pre-written motion only

announced the County’s pre-determined decision, and was orchestrated to present an appearance of

due process and facial compliance with the Open Meetings Act.

VI.     Causes of Action

        29.       The foregoing facts are fully incorporated herein by reference for all purposes.

        A.        Declaratory Judgment

        30.       Section 551.102 of the Texas Open Meetings Act (the "Act") provides that "[a] final

action, decision, or vote on a matter deliberated in a closed meeting under this chapter may only be

made in an open meeting that is held in compliance with the notice provisions of this chapter."

        31.       The March 1, 2011 motion was pre-determined and pre-written by the Commissioners

prior to the public hearing. Upon information and belief, the official "vote" taken in open session was

merely an announcement of the actual decision, which was made by the Commissioners in private,

outside of the open meeting. Neither Plaintiff nor any other member of the public received any notice

of, or were given any opportunity to participate in, these private deliberations.

        32.       Such actions constitute a direct violation of the Texas Open Meetings Act and the

March 1, 2011 resolution should therefore be declared invalid and set aside. See TEX. GOV'T CODE

ANN. § 551.141 ("An action taken by a governmental body in violation of this chapter is voidable");


                                                            811
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 7
See Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975)

(recognizing the courts' inherent authority to invalidate and set aside government decisions made in

violation of the Act).

        33.       Violations of the Texas Open Meetings Act may be addressed through a number of

remedies available under the Act and separate statutory authorities. One such remedy is found in

Section 551.142 of the Act, which allows any "interested person" to "bring an action by mandamus

or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by

members of a governmental body." In lieu of a writ of mandamus or injunction, an "interested

person" authorized under Section 551.142 may also seek a declaratory judgment to invalidate the

unlawful act under Chapter 37 of the Texas Civil Practice and Remedies Code. See Bd. of Trs. v. Cox

Enters., Inc., 679 S.W.2d 86, 88 (Tex. App. - Texarkana 1984) (recognizing declaratory judgment

action as an additional option to challenge violations of the Act); see also TEX. CIV. PRAC. & REM.

CODE ANN. § 37.003 (authorizing a court to declare the "rights, duties, and other legal relations" of

citizens and public officials).

        B.        Breach of Settlement Agreement

        34.       The Agreement constituted a valid and enforceable settlement agreement between

Tom Green County and the Heirs-at-Law, including Charles Hughes.

        35.       Tom Green County waived sovereign immunity with respect to those claims by

intervening in the Underlying Lawsuit filed by SMU.

        36.       Tom Green County accepted the proceeds from the settlement reached with SMU and

the Heirs-at-Law, including Charles Hughes, thus Charles Hughes and the other Heirs-at-Law fully

performed their obligations under the settlement agreement. Further, on July 6, 1994, Tom Green

County ratified the Agreements.




                                                            812
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 8
         37.      Tom Green County, however, has materially breached the Agreement by failing and

refusing to name the Tom Green County Central Library in honor of Duwain E. Hughes, Jr. or

Frances Hughes Crews. At the time of the County’s breach on March 1, 2011, the value of the

naming obligation was $3,000,000.00. As a result of the County’s breach, Hughes suffered damages

in the amount of the lost value of the naming obligation – $3,000,000.00.

         38.      Further, and in the alternative, because Tom Green County has materially breached

the agreement, it is liable for the $500,000 in settlement proceeds it received, plus pre-judgment and

post judgment interest.

         C.       Action for Money Had and Received

         39.      Tom Green County accepted the benefits of the Assignment Agreement, and the

subsequent settlement reached with SMU and the Heirs-at-Law. By accepting those benefits, Tom

Green County enjoyed the savings of significantly limiting the scope and risk associated with the

Underlying Lawsuit as it approached mediation, and then benefitted from its use of the $500,000 in

settlement proceeds for many years.

         40.      Tom Green County received this benefit on the basis of false promises that it would

name the Tom Green County Central Library in honor of Duwain E. Hughes, Jr. or Frances Hughes

Crews.

         41.      Tom Green County has failed and refused to do equity, by returning the $500,000 it

has unjustly received, in exchange for its promise to name the Central Library.

         42.      Tom Green County has instead named the Central Library the “Stephens Central

Library,” and continues to retain, or has otherwise appropriated the $500,000 it received and that in

equity, justice, or in law belongs to Hughes.

         43.      Therefore, Tom Green County is obligated to return the $500,000 to the Charles

Hughes as is equitable and just.


                                                            813
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 9
VII.     Conditions Precedent

         44.       All conditions precedent to the relief sought by Charles Hughes have been fulfilled

or have occurred.

VIII. Attorney’s Fees

         45.       Charles Hughes seeks reasonable and necessary attorneys' fees for Tom Green

County’s breach of contract pursuant to Texas Civil Practice & Remedies Code Section 38.001(8)

and seeks such attorneys’ fees as are equitable and just pursuant to Texas Civil Practice and

Remedies Code Section 37.009.

IX.      Damages

         46.        As a result of Tom Green County’s breach of the Agreement, Hughes suffered the loss

of the value of the naming obligation, which at the time of the County’s breach was valued at

$3,000,000.00.

         47.       Alternatively, as a result of Tom Green County’s breach of the Agreement, Hughes

suffered the loss of his share of $500,000 by his reliance on the County’s Agreement.

         48.       Further, and in the alternative, Tom Green County was unjustly enriched in the amount

of $500,000.00 in funds that it received and that amount should be returned to Hughes.

IX.      Prayer

         Wherefore, Plaintiff Charles J. Hughes respectfully requests that upon trial of this matter the

Court enter judgment for Hughes against Tom Green County, invalidate and set aside the March 1,

2011 Resolution made in violation of the Texas Opening Meetings Act, order the County to pay

Charles J. Hughes the amount of damages sought herein, plus pre-judgment interest, costs, attorney

fees, post judgment interest, and grant Charles J. Hughes such other and further relief, at law or in

equity, to which he is justly entitled.


                                                             814
 Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 10
                                                          Respectfully submitted,

                                                          DAVIS, GERALD & CREMER
                                                          A Professional Corporation
                                                          400 W. Illinois, Ste. 1400
                                                          Midland, Texas 79701
                                                          432-687-0011
                                                          Fax: 432-687-1735


                                                          By:         /s/ Daniel J. Harper
                                                                    David H. Smith
                                                                    Texas Bar No. 00794652
                                                                    dhsmith@dgclaw.com

                                                                    Daniel J. Harper
                                                                    Texas Bar No. 24074363
                                                                    djharper@dgclaw.com

                                                          ATTORNEYS FOR PLAINTIFF

                                          CERTIFICATE OF SERVICE

       I certify that on this 9th day of February, 2016, a true and correct copy of the foregoing was
delivered as follows:

        VIA E-SERVICE
        Wm. Keith Davis
        Hay, Wittenburg, Davis, Caldwell &
        Bale, L.L.P.
        P.O. Box 271
        San Angelo, Texas 76902



                                                               /s/ Daniel J. Harper
                                                          Daniel J. Harper




                                                            815
Plaintiff's Third Amended Petition to Enforce Settlement Agreement and Declaratory Judgment Action   Page 11
     Appendix4

Settlement Agreement

     (CR:751)
                                (·--.                                    ,--...
                                                                         t
                                   ·SE'ITLEMENT AGREEMENT


      . This is a memorandum of understanding between the undersigned parties in settlement
 of a pending dispu'te, which has been voluntarily resolved through a mediation process conducted
 at Judiciai Arbitration & Mediation Services, Inc. (J • A· M • S) on the date hereinbelow
 indicated. In accordance with their understanding, the parties agree:
 . Jvv $~        M




        It is al_so agreed: (1) that the attorneys for said parties have prepared and approved this
agreement, and that the parties have relied entirely on the legal advice of their respective counsel
in effecting this settlement; (2) that the parties enter into this agreement of their own voluntary
will and accord; and (3) that this agreement will be considered to have·been made pursuant to
Rule 11, Texas Rules of Civil Procedure. The parties further agree to execute and deliver such
additional agreements and documents as shall be nec:essary to carry out the purposes of this
agreement, and that this agreement may be enforced as any other contrac~

       Signed this    L6 74 day of      /ttatJ J191{at       6~~-~~
./.4                                         I       -




'&-t   r~4n rbCtbt~ 4£4tL~<
Parties and/ or Representa~                              .     Counsel
                                                                                   v


             '       DEPOSmON
             !        ,.3rr
             It-t z..-1 ~c._)                    751
                    Appendix5

Compromise and Settlement and Release of All Claims

                  (RR3:241-247)
;-
 .   .·
                      -: DEFENDANT'S
                      i EXHIBIT
                      s
                      !

                      l
                               ,I
                             Too-·




                                              NO. CV91-0426-A
                                                                               m
                                                                               ~
                                                                               1ll
                                                                               !i
                                                                                     DEPOSITION
                                                                                      EXHIB~
                                                                                        ;s        I
                                                                               ~ '2-1 i-1 Lt (.yvi

          IN RE: THE WILL OF                               §     IN THE DISTRICT COURT OF
                                                           §
          DUWAJN E. HUGHES, JR.,                           §
          DECEASED                                         §     TOM GREEN COUNTY, TEXAS
                                                           §
          SOUTHERN METHODIST UNIVERSITY,                   §
          BENEFICIARY                                      §     51ST JUDICIAL DISTRICT


                  COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS


                WHEREAS, SOUTHERN METHODIST UNIVERSITY, acting through its Board

          of Trustees, herein referred to as SMU, filed an Application to Release Restriction with

          reference to the will of Duwain E. Hughes, Jr., in the above entitled and numbered cause,

          and has supplemented such application with its Supplemental Petition for Declaratory

          Judgment, which pleadings and all amendments and supplements and the will of Duwain E.

          Hughes, Jr. are here referred to for all purposes;

                 WHEREAS, TOM GREEN COUNTY, on behalf of TOM GREEN COUNTY

          LIBRARY, filed a Plea In Intervention in said cause, which plea in intervention was

          amended by TOM GREEN COUNTY with its First Amended Plea in Intervention and

          Original Counterclaim for Declaratory Judgment, and a Supplemental Plea in Intervention

          and Counterclaim for Declaratory Judgment, which pleadings asserted rights in the Estate

          ofDuwain E. Hughes, Jr., and such pleadings and all amendments and supplements are here

          referred to for all purposes;

                 WHEREAS, CHARLES J. HUGHES filed his Plea In Intervention and Petition for

          Declaratory Judgment in said cause, which asserted rights in the Estate of Duwa41 E.

          Hughes, Jr., and made KATHARINE HUGHES TRIGG, CAROL CREWS CARTER,

          COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS                          P<>n<> 1
AND JOAN CREWS HOYT, additional interested parties in the suit, such pleadings and

all amendments and supplements are here referred to for all purposes;

       WHEREAS, pursuant to order of the Court SMU filed a Petition to Join Party which

made FIRST NATIONAL BANK OF WEST TEXAS, TRUSTEE OF THE CARLOTTA

HUGHES TRUST as an additional party to the suit;

       WHEREAS, all parties who have or might have an interest in the Estate of Duwain

E. Hughes, Jr. to the extent of the oil, gas and minerals and disputes descnbed herein, are

parties to the suit and have filed pleadings, which pleadings are here referred to for all

purposes;

       WHEREAS, there are various disputes concerning the will of Duwain E. Hughes, Jr.,

and the Estate of Duwain E. Hughes, Jr., which disputes are reflected in the various

pleadings which have been filed herein, and which disputes include, without limitation,

interpretation of the will of Duwain E. Hughes, Jr., denomination and classification of the

nature of the gift made to SMU in paragraph No. III. of such will, whether or not such will

created a fee simple title to the properties descnbed in SMU without limitation or

restriction, whether or not the will created a charitable trust to SMU for the purpose of

funding one chair in the English department at SMU, whether or not the purpose of such

a trust, if any, has been fulfilled and whether the funds in excess of such fulfillment should

belong to Torn Green County under paragraph No. V. of the will or to the intestate heirs

of Duwain E. Hughes, Jr., whether or not there are restrictions in the will on the use of the

funds by Tom Green County, whether or not the doctrine of cy pres is applicable, and if so,

how it should be applied, whether or not restrictions, if any, on the use of the funds, by

SMU or Tom Green County should be relieved pursuant to the Texas Uniform Management -


COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS                            Page 2
Funds Act, Tex. Prop. Code § 163.001 et seq., or under the doctrine of cy pres, all of which

disputes are further detailed in the pleadings filed herein;

       WHEREAS, it is agreed that resolution of the said disputes is problematical and

difficult to predict with any degree of certitude, that said suit, unless compromised and

settled by the parties, will require extensive time and expense in the courts, and the parties

therefore have agreed to a complete and final compromise and settlement of such suit and

all of such disputes in accordance with the agreement made at the mediation hearing

conducted on May 26, 1994, which compromise and settlement is further reduce(\ to writing

in this agreement which is as follows:



Green County, Charles J. Hughes, Carol Crews Oirter, and Joan Crews Hoyt, which

payment will be made on execution of the settlement documents by all parties and on entry

of a final judgment in this suit by the presiding judge.

       2. Judgment will be entered in the suit which will declare and confirm:

       a. that SOUTHERN METHODIST UNIVERSITY has a vested fee title in

       the oil, gas and other mineraJs owned by Duwain E. Hughes, Jr., at his death,

       situated in Reagan and Irion Counties, Texas, save and except any interest

       therein which had been inherited by Duwain E. Hughes, Jr., from his brother

       Jackson Hughes, and all claims made by the parties to this proceeding other

       than SOUTHERN METHODIST UNIVERSITY to said oil, gas and other

       minerals are held for naught and denied;

       b. that SOUTHERN METHODIST UNIVERSITY is entitled to all funds

       and income which it has received from the Estate of Duwain E. Hughes, Jr.,


COMPROMISE AND SE'ITLEMENT AND RELEASE OF ALL CLAIMS                           Page 3
                                                            (---



     and all claims made to such funds and income by the parties to this

     proceeding other than SOUTHERN METHODIST UNIVERSITY are held

     for naught and denied;

     c. that the restriction, if any, contained in the will of Duwain E. Hughes, Jr.,

     concerning the use of the estate devised to SOUTHERN :M ETHODIST

     UNIVERSITY under such will is obsolete, inappropriate or impracticable, and

     is released to the extent that SOUTHERN METHODIST UNIVERSITY

     shall be entitled to use the property and income therefrom derived from the

     estate of Duwain E. Hughes, Jr., for the purpose of establishing, supporting

     and maintaining a chair in its English Department, called the "Duwain E.

     Hughes, Jr. Distinguished Chair in English", and for any other purpose

     connected with supporting and maintaining the· English Department at

     SOUTHERN METHODIST UNIVERSITY;

     d. that the restriction, if any, contained in the will of Duwain E. Hughes, Jr.,

     concerning the use of the estate devised to TOM GREEN. COUNTY

     LIBRARY under such will is obsolete, inappropriate or impracticable and is

     is released to the extent that TOM GREEN COUNTY, ON BEHALF OF

     TOM GREEN COUNTY LIBRARY, shall use any funds derived from the

      settlement of the claims made by TOM GREEN COUNTY in this suit for any

      purpose connected with operating, supporting, maintaining and housing the

     Tom Green County Library;

      e. that all claims made by the parties to this proceeding against SOUTHERN

      METHODIST UNIVERSITY have been fully and finally settled and released,


COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS                          Page 4
,'         and all relief prayed for by any party not specifically granted is specifically

           denied;

            f that all court costs and attorney's fees shall be borne by and paid by the
            party incurring the same; and

            g. that the judgment entered is restricted solely to the declaration of rights

            to the oil, gas and minerals which were part of the       e~tate   of Duwain E.

            Hughes, Jr. and that other oil, gas and mineral interests of any kind owned by

            the parties hereto or their predecessors in title are not in any manner

            determined or affected by the judgment.

            3. In consideration of the agreements made herein and the money to be paid as set

     forth herein, TOM GREEN COUNTY, on behalf of TOM GREEN COUNTY LIBRARY,

     CHARLES J. HUGHES, CAROL CREWS CARTER, JOAN CREWS HOYT, FIRST

     NATIONAL BANK OF WEST TEXAS, TRUSTEE OF THE CARLOTTA HUGHES

     HARTMAN TRUST (which has made no claim against SMU), and KATHARINE

     HUGHES TRIGG (who has made no claim against SMU), DO HEREBY FOREVER

     RELEASE, REMISE AND DISCHARGE SOUTHERN METHODIST UNIVERSITY

     from all claims of any kind or nature pertaining to or arising from the will and Estate of

     Duwain E. Hughes, Jr., and from all causes of action which have been asserted in this suit,

     or which might have been asserted in this suit.

            4. All parties agree to pay the attorney's fees and court costs incurred by such party,

     which agreement shall be reflected in the judgment of the Court to be entered herein.

            5. It is further understood and agreed that this agreement is a compromise and

     settlement of a disputed matter, it is not an admission of liability or facts by any party


     COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS                             Page 5
·'   hereto, and neither this compromise and settlement agreement nor any part thereof shall

     ever be construed or used as an admission on the part of any party hereto.

               6.   This compromise and settlement agreement and release contains the entire

     agreement between the parties, and the terms hereof are contractual and not a mere recital.



               EXECUTED in multiple counter parts on this the ___ day of _ _ _ _ _ __

     1994.




     ~RSITY
                                                      SMITH,


                                                                                               rn




     CARLOTTA HUGHES HARTMAN


     FIRST NATIONAL BANK OF WEST   SIMS, KIDD, HUBBERT & WILSON
     TEXASONBEHALFOFTHE
     CARLOTTA HUGHES HARTMAN TRUST


     By:
        _;;-
               4;/ &u:__.-----
                      .      L/                                                              First




                                                      HALLdZ,~
                                                      By:     fi~ dcz_J-Jf
                                                            Phil Lane, Attorney for Tom Green
                                                            County




     COMPROMISE AND SETTLEMENT AND RELEASE OF ALL CLAIMS                          Pal!e ti
                            (
                            (




    /
I                                                  HUGHES & LUCE, L.L.P.


                                                   By:~v{;5terii{~
                                                      -eS}uml1ey                      for
                                                       Kath,€rine Hugnes Trigg
                                                           0-'




        ~Rfw~c'AA~·L~~                             1HOMPSON, COE, COUSINS, & IRONS,
                                                   L.L.P.




        COMPROMISE AND SE'ITLEMENT AND RELEASE OF ALL CJ.ATMS                »---"'
  Appendix6

 Final Judgment
(SMU Litigation)

 (RR3:159-163)
,.   t   ••   Ill




                                                               ·NO. CV91-0426-A

                    IN RE: THE WILL OF

                    DUWAIN E. HUGHES, JR.,
                    DECEASED

                    SOUTHERN METHODIST
                    UNIVERSITY, BENEFICIARY                                                  51ST JUDICIAL DISTRICT· ..




                           On this ~ 7       day of __S_tii-"-·p_ti.-'-e_~-t_;;G:...:..:::...:..fl..::__ _, 1994, carne on to be heard the abo':e

                    entitled and numbered cause, and it was announced to the Court that all matters in...

                    controversy between the parties which is the subject matter of this suit have been fully and

                    finally agreed to and settled as is further evidenced by the signatures of all parties and their

                    attorneys agreeing to this judgment, and the Court, having considered the pleadings, the

                    agreement of the parties and the evidence offered, finds and concludes as follows:

                           that the Court has jurisdiction over all the parties hereto and that all

                           necessary parties for entry of this judgment are properly before the Court;

                           that the Attorney General of the State of Texas has filed a proper Waiver of

                           the right of the Sta!e of Texas to intervene and be a party to this proceeding;

                           that the Court has jurisdiction over the subject matter of this suit, and the

                           jurisdiction and authority to enter this judgment, pursuant to its general

                           jurisdictional authority, <:md punmant to the Uniform Management of

                           Instiiutional Funds Act, Texas Property Code § 163.001 et seq., and the

                           Uniform Declaratory Judgments Act, Texas Civil Practice & Remedies Code,

                           ~·   J7 .001 cl_sc~; and the Court finds and is of the opinion that this judgment

                           should he entered.


                                                                                                                                      - Pngcl
IT IS, THEREFORE, ORDERED, ADJUDGED                 AND DECREED a... ·-·-·A·····:
A    SOUTHERN METHODIST UNIVERSITY has a vested fee title in the

oil, gas and other minerals owned by Duwain E. Hughes, Jr., at. his death~
                                                                         '•''

situated in Reagan and Irion Counties, Texas, save and except any interest

therein which had been inherited by Duwain E. Hughes, Jr. from his brother

Jackson Hughes, and all claims made by the partie$ to this proceeding other

than SOUTHERN METHODIST UNIVERSITY to said oil, gas and other

minerals are held for naught and denied;

B. SOUTHERN METHODIST UNIVERSITY is entitled to all funds and

income \-Vhich it has received from the Estate of Duwain E. Hughes, Jr., and

all claims made to such funds and income by the parties to this proceeding

other than SOUTHERN METHODIST UNIVERSITY are held for naught

and denied;

C.   the restriction, if any, contained in the will of Duwain E. Hughes, Jr.,

concerning the use of the estate devised to SOUTHERN METHODIST

UNIVERSITY under such will is obsolete, inappropriate or impracticable, and

it is hereby decreed that such restriction is released to the extent that

SOUTHERN METHODIST UNIVERSITY shall be entitled to use the

property and income therefrom dc::ivcd from the estate of Duwain E.   Hughe~,


Jr., for the purpose of establishing, supporting and maintaining a chair in its

Engli~;ll   Department, called the "Duwain E. Hughes, Jr. Distinguished Chair

in Engiish'', and for any other purpose connected with supporting and

maintaining the English Department at SOUTHERN METHODIST

UNIVERSITY;

                                                                                • Pagel
       D.

       concerning the use of the estate devised to TOM GREEN

       LIBRARY under such will is obsolete, inappropriate or impracticable
                                                                       ·,•,',··'
                                                                         '




       is hereby decreed that such restriction is released to the extent'

       GREEN COUNTY, ON BEHALF OF TOM GREEN COUNTYLIBRARY,,,,

       shall use any funds derived from the settlement of the claims made by       TOM
       GREEN COUNTY in this suit for any purpose connected with operating,

       supporting, maintaining and housing the Tom Green County Library;

       E. all claims made by the parties to this proceeding against SOUTHERN

       METHODIST UNIVERSITY have been fully and finally settled and released,

       and all relief prayed for by any party not specifically granted herein is

       spccificaliy denied; and

       F. all court costs and attorney's fees shall be borne by and paid by the party

       incurring the same, and it appearing to the Court that all costs of tt"lis suit

       have been paid, no further order is entered with respect thereto.

       IT IS SPECIFICALLY ORDERED            AI~D   DECREED that the judgment entered in

this case is restricted solely to the declaration of rights to the oil, gas and minerals which

were part of the estate of Duwain E. Hughes, Jr. Other oil, gas and mineral interests of any

kind owned by the parties hereto or their predecessors in title are not in anv manner

determined or affected by this judgment.



                                                            '1994.



                                    CURT STEIB, JUDGE PRESIDING

                                                                                      • Page3
~   .,   ....


                APPROVED AND AGREED TO:




                FIRST NATIONAL BANK OF WEST    SIMS, KIDD, HUBBERT & WILSON
                TEXAS ON BEHALF OF THE
                CARLO'n'A HUGHES HARTMAN TRUST


                                                    ~~=~~~~~~~-=~~-
                                                           ]ohn C. (Sims, Attorney for First
                                              /          /National Bank of West Texas
                                              .      /
                                             i/
                                             \../

                                                    HALL~ ~E~LP.
                                                    By:     ;/1/:zd ,-~. .
                                                          Phil Lane, Attorney for Tom Green
                                                          County



                                                    HUGHES & LUCE, L.L.P.




                                                                                     • Page4
• PageS
