                                            OPINION
                                       No. 04-10-00199-CV

            SYLVIA S. ROMO, BEXAR COUNTY TAX ASSESSOR - COLLECTOR,
                                    Appellant

                                                  v.

                                  CAVENDER TOYOTA, INC.,
                                         Appellee

                     From the 37th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-10774
                              Honorable Larry Noll, Judge Presiding

Opinion by: Catherine Stone, Chief Justice
Concurring Opinion by: Marialyn Barnard, Justice

Sitting:         Catherine Stone, Chief Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: October 20, 2010

REVERSED AND REMANDED

           Appellant Sylvia S. Romo, Bexar County Tax Assessor-Collector (“Romo”) appeals the

trial court’s order denying her plea to the jurisdiction. On appeal, Romo alleges the trial court

erred in denying her plea to the jurisdiction because governmental immunity protects her from

suit. We reverse the trial court’s order denying Romo’s plea to the jurisdiction and remand the

cause to the trial court with instructions to dismiss Cavender Toyota’s (“Cavender”) lawsuit.
                                                                                     04-10-00199-CV


                                          BACKGROUND

       Rogelio Sanchez purchased a 2008 Mazda from World Car Mazda of San Antonio in

April 2008.    National Auto Finance Company (“NAFC”) financed the transaction between

World Car Mazda and Sanchez, and the application for certificate of title submitted to Romo

identified NAFC as a first lienholder on the vehicle. A certificate of title thereafter issued, but

the certificate of title issued by Romo failed to reference the existence of NAFC’s lien.

       After his transaction with World Car Mazda, Sanchez decided to purchase a 2008 Toyota

Tundra from Cavender in June 2008. Cavender accepted Sanchez’s Mazda as a trade-in and

credited Sanchez $12,350 towards the purchase price of his new vehicle. Sanchez presented

Cavender with the certificate of title issued by Romo reflecting no liens on the Mazda and made

no attempt to notify Cavender about NAFC’s lien. Cavender then sold Sanchez’s Mazda to

Cynthia Steubs for $18,738.74 in August 2008. Steubs financed the purchase of the vehicle

through Security Service Federal Credit Union (“SSFCU”). After Steubs purchased the Mazda

from Cavender, the Texas Department of Transportation notified SSFCU about NAFC’s lien on

the vehicle. Steubs returned the vehicle to Cavender, which refunded Steubs $18,738.74. To

obtain clear title to the Mazda, Cavender also paid NAFC $17,000.

       Cavender filed a suit against Romo for breaching the Texas Certificate of Title Act (the

“Act”). See TEX. TRANSP. CODE. ANN. §§ 501.001 et. seq. (West 2007 & Supp. 2010).

According to Cavender’s petition, “Romo breached the duties set forth in the Certificate of Title

Act by failing to note NAFC’s lien on the title receipt and on the certificate of title for the

Mazda.” It further claimed Romo breached her duties under the Act “by failing to deliver the

certificate of title to NAFC, the first lienholder.”     Cavender’s petition alleges it suffered




                                                -2-
                                                                                   04-10-00199-CV


$23,388.74 in damages as a result of Romo’s failure to comply with her responsibilities under

the Act and asserts Romo is liable on her official bond for its damages.

        Romo responded to Cavender’s suit by filing a plea to the jurisdiction on the ground of

governmental immunity.      Romo’s plea claimed Cavender failed to “plead how the Tax-

Assessor’s immunity from suit is waived” and requested the court to dismiss the action.

Cavender filed a response to Romo’s jurisdictional plea and an amended petition. Cavender

claimed the Legislature waived Romo’s governmental immunity by enacting section 501.137 of

the Texas Transportation Code, which provides: “Each county assessor–collector shall comply

with this chapter . . . An assessor-collector who fails or refuses to comply with this chapter is

liable on the assessor-collector’s official bond for resulting damages suffered by any person.”

Following a hearing on Romo’s plea to the jurisdiction, the trial court denied Romo’s plea.

Romo now brings this interlocutory appeal, claiming the trial court erroneously denied her plea

to the jurisdiction.

                                           IMMUNITY

        Governmental immunity protects political subdivisions of the State, including counties,

cities, and school districts, from lawsuits for damages. Harris County Hosp. Dist. v. Tomball

Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 694 n. 3 (Tex. 2003). It encompasses two distinct concepts: (1) immunity from suit (barring

a lawsuit unless the Legislature expressly gives consent to suit); and (2) immunity from liability

(even if the Legislature has expressly given its consent to suit). Tooke v. City of Mexia, 197

S.W.3d 325, 331 (Tex. 2006); City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. App.—

Fort Worth 2007, pet. denied). Immunity from liability is an affirmative defense; immunity from

suit deprives a court of subject matter jurisdiction. Singer, 232 S.W.3d at 795; see Harris



                                               -3-
                                                                                     04-10-00199-CV


County, 283 S.W.3d at 842 (stating immunity from suit is jurisdictional and bars suit; immunity

from liability is not jurisdictional and protects from judgments).

                                      STANDARD OF REVIEW

       A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority

to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000). The party suing a governmental entity bears the burden of affirmatively

showing the trial court has jurisdiction to hear the cause. Tex. Dept. of Criminal Justice v.

Miller, 51 S.W.3d 583, 587 (Tex. 2001). Whether a trial court has subject matter jurisdiction is a

question of law subject to de novo review. Harris County, 283 S.W.3d at 842; Tex. Natural Res.

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). We consider the pleadings and the evidence

pertinent to the jurisdictional inquiry; we do not consider the merits of the case. County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). “We review the trial court’s interpretation

of applicable statutes de novo.” Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd., 256

S.W.3d 735, 741 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d).

                                           DISCUSSION

       To resolve this appeal, we must determine whether the Legislature waived Romo’s

immunity from suit through its enactment of section 501.137 of the Transportation Code. The

Legislature has mandated that a statute shall not be construed as a waiver of immunity unless the

waiver is effected by clear and unambiguous language. TEX. GOV’T CODE ANN. § 311.034 (West

Supp. 2010) (“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.”). Courts have little



                                                -4-
                                                                                                   04-10-00199-CV


difficulty in ascertaining the Legislature’s intent to waive immunity from suit when a statute

contains language expressly waiving such immunity. See Taylor, 106 S.W.3d at 697. The Texas

Supreme Court has recognized “that it is more difficult to determine legislative consent to suit

against an entity when language specifying that ‘immunity is waived’ is absent from the

provisions in question.” Harris County, 283 S.W.3d at 844; see Taylor, 106 S.W.3d at 697. In

the absence of express waiver language, the Supreme Court has utilized aids to help analyze

statutes for legislative consent to suit: “(1) whether the statutory provisions, even if not a model

of clarity, waive immunity without doubt; (2) ambiguity as to waiver is resolved in favor of

retaining immunity; (3) immunity is waived if the Legislature requires that the entity be joined in

a lawsuit even though the entity would otherwise be immune from suit; and (4) whether the

Legislature provided an objective limitation on the governmental entity’s potential liability.”

Harris County, 283 S.W.3d at 844.                The court has also considered whether the statutory

provisions would serve any purpose absent a waiver of immunity. 1

        It is undisputed by the parties that the statute at issue does not contain the type of

language generally used by the Legislature to confirm its intent to waive immunity from suit.

Compare TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a) (West 2005) (“Sovereign immunity

to suit is waived and abolished to the extent of liability created by this chapter.”), id. § 63.007(b)

(West Supp. 2010) (“The state’s sovereign immunity to suit is waived only to the extent

necessary to authorize a garnishment action in accordance with this section.”), id. § 81.010(d)

(West 2005) (“Governmental immunity to suit is waived and abolished only to the extent of the

liability created by Subsection (b).”), TEX. GOV’T CODE ANN. § 2007.004 (West 2000)

(“Sovereign immunity to suit and liability is waived and abolished to the extent of liability.


1
 Id. “It appears that courts may use [the aforementioned aids,] but are not required to do so.” Clear Lake, 256
S.W.3d at 741.

                                                       -5-
                                                                                      04-10-00199-CV


created by this chapter.”), and TEX. PROP. CODE ANN. § 74.506(c) (West Supp. 2010) (“The

state’s immunity from suit without consent is abolished with respect to suits brought under this

section.”), with TEX. TRANSP. CODE. ANN. § 501.137 (“Each county assessor–collector shall

comply with this chapter . . . An assessor-collector who fails or refuses to comply with this

chapter is liable on the assessor-collector’s official bond for resulting damages suffered by any

person.”). We therefore turn to the aids established by the Supreme Court to analyze section

501.137 for legislative consent to suit. See Harris County, 283 S.W.3d at 844. Considering

these aids, we conclude that section 501.137 does not waive Romo’s immunity from suit.

       Reviewing the terms used by the Legislature in section 501.137, the plain language of the

statute does not waive immunity without doubt. As noted above, section 501.137 provides:

“Each county assessor–collector shall comply with this chapter . . . An assessor-collector who

fails or refuses to comply with this chapter is liable on the assessor-collector’s official bond for

resulting damages suffered by any person.” TEX. TRANSP. CODE. ANN. § 501.137. Although the

statute explicitly states that an assessor-collector “is liable” for failing to comply with his or her

obligations under the Act, such language does not necessarily mean that immunity from suit is

waived.   See Harris County, 283 S.W.3d at 849-50 (“If we were to hold that waiver of

governmental immunity to suit can occur in the manner contended for by THA—by repeatedly

using language in statutes to the effect that the district ‘assumes liability’ and ‘is liable’ for

expenses—our holding would be at odds with the Legislature’s plainly expressed intent that

statutes not be construed as waiving immunity unless there is clear and unambiguous waiver

language in the statute.”). This language appears to address Romo’s liability rather than her

immunity from suit.




                                                 -6-
                                                                                   04-10-00199-CV


        Cavender argues the statute’s inclusion of the term “damages” confirms that the

Legislature contemplated the pursuit of lawsuits against Romo because “[t]here is no way to

recover damages without . . . bringing suit.” However, a statute’s reference to “damages” in and

of itself does not mean that immunity from suit is waived. See, e.g., City of Midlothian v. Black,

271 S.W.3d 791, 795-98 (Tex. App.—Waco 2008, no pet.) (analyzing the following statutory

language from section 11.086 of the Texas Water Code and concluding it does not demonstrate a

clear and unambiguous waiver of immunity: “No person may divert or impound the natural flow

of surface waters in this state . . . in a manner that damages the property of another by the

overflow of the water diverted or impounded . . . A person whose property is injured by an

overflow of water caused by an unlawful diversion or impounding has remedies at law and in

equity and may recover damages occasioned by the overflow.”). If we were to hold that a waiver

of governmental immunity from suit can occur by a mere reference to “damages,” we believe our

holding would be at odds with the Legislature’s plainly expressed intent that statutes not be

construed as waiving immunity unless there is clear and unambiguous waiver language in the

statute. Indeed, it is difficult to conclude such language is a clear and unambiguous waiver of

immunity when far more overt declarations in statutes enacted by the Legislature fall short. See,

e.g., Tooke, 197 S.W.3d at 342 (holding statutory phrases stating a governmental entity may “sue

and be sued” or “plead and be impleaded” are not clear and unambiguous waivers of sovereign

immunity). When, as here, the text of the statute leaves room to doubt whether the Legislature

intended to waive immunity from suit, we resolve any ambiguities by retaining immunity. See

Taylor, 106 S.W.3d at 697; see also Magnolia Petro. Co. v. Walker, 125 Tex. 430, 83 S.W.2d

929, 934 (1935) (“Any ambiguity or obscurity in the terms of the statute must operate in favor of

the state.”).



                                               -7-
                                                                                                     04-10-00199-CV


         The next aid we consider is whether the statute requires the governmental entity be joined

in the lawsuit even though the entity would otherwise be immune from suit. Taylor, 106 S.W.3d

at 697-98. Nothing in section 501.137 requires the government to be joined in a lawsuit for a

violation of the Act. Compare TEX. TRANSP. CODE. ANN. § 501.137 (“Each county assessor–

collector shall comply with this chapter . . . An assessor-collector who fails or refuses to comply

with this chapter is liable on the assessor-collector’s official bond for resulting damages suffered

by any person.”), with TEX. CIV. PRAC. & REM. CODE § 37.006 (West 2008) (“When declaratory

relief is sought, all persons who have or claim any interest that would be affected by the

declaration must be made parties. A declaration does not prejudice the rights of a person not a

party to the proceeding . . . In any proceeding that involves the validity of a municipal ordinance

or franchise, the municipality must be made a party and is entitled to be heard, and if the statute,

ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must

also be served with a copy of the proceeding and is entitled to be heard.”). The lack of such a

requirement is yet another indication that the Legislature did not intend to waive immunity under

section 501.137. See Harris County, 283 S.W.3d at 844; Taylor, 106 S.W.3d at 697-98, 701.

         Another aid we consider is whether the statute provides an objective limitation on the

government’s potential liability. See Harris County, 283 S.W.3d at 844. Cavender argues

section 501.137 imposes such a limitation, asserting the statute limits the assessor-collector’s

liability to the amount of his or her bond. 2 However, there is no language within the statute that

expressly limits the government’s liability to the amount of the tax assessor-collector’s bond.

2
  Prior to an assessor-collector beginning performance of his or her duties of office, the “person elected or appointed
as county assessor-collector must give bonds to the state and to the county, conditioned on the faithful performance
of the person’s duties as assessor-collector.” TEX. TAX CODE ANN. § 6.28 (West 2008). The bond the assessor-
collector gives to the county, which is at issue here, is for “an amount equal to 10 percent of the total amount of
county taxes imposed in the preceding tax year, except that the amount of the bond may not be more than
$100,000.” Id. § 6.28(c).


                                                         -8-
                                                                                      04-10-00199-CV


Compare TEX. LOC. GOV’T CODE ANN. § 85.001(e) (West 2008) (“The bond is not void on the

first recovery, but may be sued on from time to time in the name of any injured person until the

entire amount of the bond is recovered”); id. § 86.002(c) (“The bond is not void on the first

recovery but may be sued on from time to time in the name of an injured party until the whole

amount of the bond is recovered”); TEX. EDUC. CODE ANN. § 51.212(c) (West Supp. 2010)

(“The bond may be sued on from time to time in the name of the person injured until the whole

amount is recovered”); id. § 51.214(b) (“The bond may be sued on from time to time in the name

of the person injured until the whole amount is recovered”), with TEX. TRANSP. CODE. ANN.

§ 501.137 (“An assessor-collector who fails or refuses to comply with this chapter is liable on the

assessor-collector’s official bond for resulting damages suffered by any person.”).

       Cavender cites Keller v. Judd, 671 S.W.2d 604, 607 (Tex. App.—San Antonio 1984, no

writ) and Doyle v. Harben, 660 S.W.2d 586, 589 (Tex. App.—San Antonio 1983, no writ) as

support for its contention, but Cavender’s reliance on these cases is misplaced. In Keller and

Doyle, both of which involve the sale of stolen automobiles, the sellers of the vehicles argued

that subjecting them to liability for automobiles that turned out to be stolen was unconstitutional

because they had relied on the Act in purchasing the automobiles. Keller, 671 S.W.2d at 607;

Doyle, 660 S.W.2d at 589. The sellers contended the State was culpable —as opposed to the

sellers— because of state agent error in issuing title certificates for the stolen vehicles. Keller,

671 S.W.2d at 606-07; Doyle, 660 S.W.2d at 588-89. The courts in both cases rejected the

constitutional claims, noting that any negligent or improper action by an agent of the state would

be a proper basis for a claim against the agents’ bonds under the Act. Keller, 671 S.W.2d at 607

(citing Article 6687-1, § 56 of the Revised Civil Statues of Texas, which is the predecessor

statute to section 501.137, and stating “[o]n the one hand, appellant could have sued his seller,



                                                -9-
                                                                                  04-10-00199-CV


Crayton. Or, if his allegations of error fit the requirements of art. 6687-1, § 56 (Vernon 1977),

he could sue designated agents on their bonds . . . To the extent appellant seeks to sue

government agents except as provided for under § 56, appellant would have us abolish sovereign

immunity. We decline to do so.”); Doyle, 660 S.W.2d at 589 (stating “[i]f, as appellant claims,

the authorized [State] agent negligently issued ‘quick titles’ to the automobiles, then appellant

could have attempted to hold the agent liable on his bond under section 56 of the Act.”). Absent

from Keller and Doyle, however, is any discussion of whether the Legislature actually intended

to waive the government’s immunity from suit through its enactment of the statutory language at

issue. Keller and Doyle are thus not instructive.

       Romo asserts section 501.137, if applied as Cavender suggests, subjects her to possible

indeterminate damage awards. If a damage award were to deplete her official bond, Romo notes

she would be required under the Tax Code to furnish another bond to the county. She points out

that if the damage award in question exceeded the amount of her original bond, there is no

language within section 501.137 preventing a person from satisfying the remainder of his or her

damage award against the successive bond.           We agree with Romo’s rationale.    Thus, we

conclude the absence of a limitation on the government’s potential liability indicates that the

Legislature did not intend to waive immunity under section 501.137. See Harris County, 283

S.W.3d at 844.

       Lastly, we may look to whether the statutory provision would serve any purpose absent a

waiver of immunity. Id. Cavender urges that failing to interpret section 501.137 as a waiver of

immunity would render several provisions of the Act meaningless.         Specifically, Cavender

claims both sections 501.030(f), which relates to motor vehicles brought into this State from

another jurisdiction, and 501.106, which concerns enforcement of the subchapter concerning



                                               - 10 -
                                                                                                        04-10-00199-CV


nonrepairable and salvage motor vehicles, make no sense if immunity from suit is not waived

through section 501.137. Section 501.030(f) provides as follows:

           A county assessor-collector may not be held liable for civil damages arising out of
           the assessor-collector’s failure to reflect on the title receipt a lien or encumbrance
           on a motor vehicle to which Subsection (e) 3 applies unless the assessor-collector’s
           failure constitutes willful or wanton negligence.

TEX. TRANSP. CODE. ANN. § 501.030(f) (West 2007). Section 501.106 provides:

           This subchapter shall be enforced by the department and any other governmental
           or law enforcement entity, including the Department of Public Safety, and the
           personnel of the entity as provided by this subchapter . . . The department, an
           agent, officer, or employee of the department, or another person enforcing this
           subchapter is not liable to a person damaged or injured by an act or omission
           relating to the issuance of a regular certificate of title, nonrepairable vehicle title,
           or salvage vehicle title under this subchapter.

Id. § 501.106 (West 2007).              We do not believe the provisions identified by Cavender are

rendered meaningless if immunity is not waived under section 501.137. As Romo argues in her

briefing, Chapter 501 of the Certificate of Title Act establishes a framework designed to protect

the interests of governmental bodies that are entitled to tax revenues and fees collected by an

assessor-collector. The official bond referenced in section 501.137 can be either a state bond or

a county bond, see TEX. TAX CODE ANN. § 6.28, and is available to an aggrieved governmental

entity that is not paid its share of taxes collected by an assessor-collector. Under this view of the

statute, the statute serves a purpose even absent a waiver of immunity because the statute


3
    Subsection (e) states:

           Before a motor vehicle that is required to be registered in this state and that is brought into this
           state by a person other than a manufacturer or importer may be bargained, sold, transferred, or
           delivered with an intent to pass an interest in the vehicle or encumbered by a lien, the owner must
           apply for a certificate of title on a form prescribed by the department to the county assessor-
           collector for the county in which the transaction is to take place. The assessor-collector may not
           issue a title receipt unless the applicant delivers to the assessor-collector satisfactory evidence of
           title showing that the applicant is the owner of the vehicle and that the vehicle is free of any
           undisclosed liens.

TEX. TRANSP. CODE. ANN. § 501.030(e) (West 2007).


                                                           - 11 -
                                                                                    04-10-00199-CV


provides circumstances under which an entity may be deemed liable under the Act. In light of

our analysis of the aids established by the Supreme Court, we hold that section 501.137 does not

waive Romo’s immunity from suit.

                                       ULTRA VIRES CLAIM

       Cavender nonetheless argues governmental immunity does not apply to this case because

“it represents a suit against a governmental official who has failed to perform a ministerial act.

As such, the case falls within the ultra vires exception to sovereign immunity.” It appears

Cavender is attempting to circumvent Romo’s immunity from suit by recharacterizing its suit as

a quasi-declaratory judgment action. Cavender’s action is plainly a suit for money damages;

therefore, it is barred by immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex.

2009) (“It is well settled that ‘private parties cannot circumvent the State’s sovereign immunity

from suit by characterizing a suit for money damages . . . as a declaratory-judgment claim.’”).

                                           CONCLUSION

       “The Certificate of Title Act . . . was enacted for the protection of the public.” Doyle,

660 S.W.2d at 588. Its spirit and purpose “is to prevent fraud; not to encourage it.” Bank of

Atlanta v. Fretz, 148 Tex. 551, 560, 226 S.W.2d 843, 849 (1950). Sanchez committed a fraud

against Cavender, yet Cavender seeks to pursue its damages solely against Romo. We do not

believe that allowing Cavender to sue Romo on her official bond in this instance furthers the

spirit of the Act. Because we cannot interpret the statute in the manner urged by Cavender, we

must conclude the trial court erred in denying Romo’s plea to the jurisdiction. Accordingly, we

reverse the trial court’s order denying Romo’s plea to the jurisdiction and remand the cause to

the trial court with instructions to dismiss Cavender’s suit.


                                                   Catherine Stone, Chief Justice

                                                - 12 -
