Appeal from the 358th District Court Ector County, Texas
Trial Court Cause No. D-138, 258
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY, JUSTICE
Skypark Aviation, LLC and its owner, Ray Spengler, filed suit
against Appellees-Kenneth Lind, Dale Childers, and Ector
County-concerning Skypark's unsuccessful effort to be
named as the "Fixed Base Operator" of the Ector
County (Schlemeyer) Airport. Lind was the purchasing agent of
Ector County, and Childers was the county commissioner of
Ector County that served as the "officer in charge of
opening the bids" that the County received in response
to its request for proposal for a fixed base operator. In
four issues on appeal, Appellants appeal the trial
court's order granting Appellees' pleas to the
jurisdiction. We affirm.
County is the owner of an airport facility, Schlemeyer Field,
located north of Odessa. The airport is operated by a fixed
base operator who contracts with Ector County for the
airport's operation and maintenance. In 2014, Ector
County issued a request for proposal to find a new fixed base
operator for the airport. Ector County received proposals
from four applicants, including Skypark. After reviewing the
applications, the Commissioners' Court selected another
applicant to be the fixed base operator.
being notified that Skypark was not selected, Spengler
appeared before the Commissioners' Court for an oral
presentation of Skypark's proposal. The
Commissioners' Court did not change its previous
selection of another applicant after this presentation.
Appellants then filed the underlying action seeking
declaratory and injunctive relief by having the contract
awarded to the other applicant declared void. Appellants
alleged that Skypark was a more qualified entity to serve as
the fixed base operator of the airport. They also alleged
various errors purportedly made by Ector County officials in
evaluating the proposals.
Appellee filed a plea to the jurisdiction in which they
alleged that they were immune from suit. After a hearing, the
trial court granted Appellees' pleas to the jurisdiction
and dismissed the suit. Appellants filed various motions for
reconsideration after the trial court entered its order
granting Appellees' pleas to the jurisdiction. However,
the record does not reflect that the trial court ruled on any
of the motions for reconsideration.
their first and second issues, Appellants contend that the
trial court erred when it granted Appellees' pleas to the
jurisdiction. "A plea to the jurisdiction is a dilatory
plea, the purpose of which is to defeat a cause of action
without regard to whether the claims asserted have
merit." Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction
challenges the trial court's subject-matter jurisdiction
over a pleaded cause of action. Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.
2004). Subject-matter jurisdiction is a question of law.
Id. at 226. Therefore, we apply a de novo standard
of review to a trial court's ruling on a plea to the
jurisdiction. Id. When, as here, a plea to the
jurisdiction challenges the pleadings, we determine whether
the pleader has alleged facts that affirmatively demonstrate
the trial court's jurisdiction. Id. The
plaintiff has the burden to plead facts that affirmatively
demonstrate the trial court's jurisdiction. Id.
If the pleadings affirmatively negate the existence of the
trial court's jurisdiction, then the trial court may
grant a plea to the jurisdiction without allowing the
plaintiff an opportunity to amend his pleadings. Id.
immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from
lawsuits and liability for money damages." Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655
(Tex. 2008). Sovereign immunity shields the state from suit
unless it expressly consents to being sued. Harris Cty.
v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental
immunity affords similar protection to subdivisions of the
state, including counties. Id. Sovereign and
governmental immunity in Texas embodies two concepts:
immunity from liability and immunity from suit. City of
Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011).
Immunity from liability protects governmental entities from
judgments, while immunity from suit completely bars actions
against those entities unless the legislature expressly
consents to suit. Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity
from suit deprives the courts of subject-matter jurisdiction
and thus completely bars the plaintiff's claim.
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
696 (Tex. 2003).
against government employees in their official capacities is,
in all respects, a suit against the governmental entity;
thus, employees sued in their official capacities are
shielded by sovereign immunity or governmental immunity.
See Franka v. Velasquez, 332 S.W.3d 367, 382-83
(Tex. 2011) ("[A]n employee sued in his official
capacity has the same governmental immunity, derivatively, as
his government employer."). In this regard, Lind and
Childers were only sued in their official capacities as
officials of Ector County. Accordingly, Appellees' pleas
to the jurisdiction present the same question: Do Appellees
have governmental immunity from suit for the claims asserted
political subdivision enjoys governmental immunity from suit
to the extent that immunity has not been abrogated by the
legislature. See Tex. Nat. Res. Conservation Comm'n
v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). For a
statute to effectuate a waiver of governmental immunity, the
legislative intent to waive immunity must be expressed in
clear and unambiguous language. Harris Cty. Hosp. Dist.
v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex.
2009); see Tex. Gov't Code Ann. § 311.034
(West 2013) ("[A] statute shall not be construed as a
waiver of sovereign immunity unless the waiver is effected by
clear and unambiguous language.").
their original petition, Appellants asserted that the trial
court had subject-matter jurisdiction under Texas Local
Government Code Section 262.033 for the relief that they
sought. See Tex. Loc. Gov't Code Ann. §
262.033 (West 2016). Appellants later cited Texas Local
Government Code Section 271.028 as an alternative statute
conferring subject-matter jurisdiction. Appellants contend in
their first and ...