January 22, 2019
Petition for Review from the Court of Appeals for the Fifth
District of Texas
JEFFREY S. BOYD JUSTICE
plaintiff in this case claims that a governmental entity
breached a contractual promise to make a good-faith effort to
obtain authorization for a higher payment than the
parties' written contract required the entity to make. We
must decide whether governmental immunity applies and, if so,
whether chapter 271 of the Texas Local Government Code waives
that immunity. We conclude that governmental immunity applies
and chapter 271 does not waive the entity's immunity. We
reverse the court of appeals' judgment in part and render
judgment dismissing all of the plaintiff's claims.
Dallas-Fort Worth International Airport Board operates the
DFW International Airport. See Tex. Transp. Code.
§§ 22.074(c), (d). In 2012, the Board's staff
retained Vizant Technologies to analyze the airport's
payment-processing costs (including costs for processing
credit-card payments) and to provide recommendations on how
the airport could reduce those costs. Exercising delegated
authority, the Board's staff negotiated and executed a
written Consulting Agreement providing for a three-year term.
The contract required the Board to pay Vizant a consulting
fee to be calculated as (1) fifty percent of any refunds the
airport received from its payment-processing vendors as a
result of Vizant's recommendations, plus (2) a specified
percentage of the amount by which Vizant's
recommendations reduced the Board's historical
these provisions, the contract stated that Vizant's
"compensation under this Agreement shall not exceed $50,
000," and Vizant must "stop work once its
compensation reaches" that amount. But it further
provided that "[i]n the event" Vizant's fee
exceeds $50, 000, the Board "will make a good faith
effort to receive board authorization to increase the
compensation," and "if approved," the parties
would amend the contract to reflect the higher amount. Vizant
alleges that it agreed to the $50, 000 cap only because the
Board's staff assured Vizant that the Board always
approves such increases.
to Vizant, its services ultimately saved the airport about
$820, 000, and its fee under the agreed formula exceeded
$300, 000. Vizant submitted an invoice for $50, 000 and
requested that the Board approve an amendment authorizing the
higher amount. The Board's staff paid the $50, 000 and
ultimately asked to Board to approve an increase to $330,
000, but the Board denied that request. Vizant sued the Board
for breach of contract, fraud, fraudulent inducement, and
promissory estoppel, alleging in part that the Board failed
to make the promised good-faith effort to authorize the
Board filed a plea to the jurisdiction asserting that
governmental immunity bars Vizant's claims. The trial
court denied the plea, holding that governmental immunity
does not apply because the Board's management of the
airport's payment-processing costs is a proprietary
(rather than governmental) function. See Wasson Interests
v. City of Jacksonville, 559 S.W.3d 142, 146 (Tex. 2018)
("Wasson II ") ("The
governmental/proprietary dichotomy recognizes that immunity
protects a governmental unit from suits based on its
performance of a governmental function but not a proprietary
Board filed an interlocutory appeal from the trial
court's denial of its jurisdictional plea. The court of
appeals reversed in part and affirmed in part. Dall./Fort
Worth Int'l Airport Bd. v. Vizant Techs., LLC, 565
S.W.3d 69, 71 (Tex. App.-Dallas 2017). It reversed and
rendered judgment dismissing Vizant's fraud and estoppel
claims, concluding that governmental immunity applies because
the Board was engaged in a governmental function and no
statute waives the Board's immunity against those claims.
Id. at 74-75. But it affirmed the trial court's
denial of the Board's plea against Vizant's
breach-of-contract claim, holding that-although governmental
immunity applies-chapter 271 of the Texas Local Government
Code waives the Board's immunity against that claim.
Id. at 75. The Board filed a petition for review
challenging the court of appeals' holding on the contract
claim, which we granted.
first address whether governmental immunity applies to
Vizant's breach-of-contract claim. Governmental immunity
generally protects local governmental entities against both
lawsuits and legal liabilities. City of Houston v. Hous.
Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex.
2018). Vizant does not dispute that the Board qualifies as a
local governmental entity,  but argues that immunity does not
apply here because the Board was acting in a proprietary
capacity when it entered into the contract. The trial court
agreed with Vizant, but the court of appeals disagreed and
held that the Board was acting in a governmental capacity. We
agree with the court of appeals.
immunity is inherent in the state's sovereignty, certain
local governmental entities enjoy its protection only when
they act "as a branch" of the state and not when
they act "in a proprietary, non-governmental
capacity." Wasson II, 559 S.W.3d at 146
(quoting Wasson Interests v. City of Jacksonville,
489 S.W.3d 427, 430 (Tex. 2016) ("Wasson
I")). As we recognized in Wasson II,
deciding whether an entity enters a contract as a
governmental or proprietary function can be quite difficult.
Id. at 147. But here, it is not. Pursuant to its
constitutional authority,  the legislature has enumerated
particular functions as governmental or proprietary for
purposes of determining whether immunity applies to tort
claims, see Tex. Civ. Prac. & Rem. Code §
101.0215(a), and these designations "aid our
inquiry" in cases involving contract claims as well.
Wasson II, 559 S.W.3d at 148 (quoting Wasson
I, 489 S.W.3d at 439).
the Board's functions, the legislature has unambiguously
declared that the "maintenance, operation, [and]
regulation" of an airport and the "exercise of any
other power granted" for that purpose, whether exercised
"severally or jointly" by local governments,
"are public and governmental functions, exercised for a
public purpose, and matters of public necessity." Tex.
Transp. Code § 22.002(a); see also Tex. Civ.
Prac. & Rem. Code § 101.0215(a)(10) (listing
"airports" as a governmental function under the
Tort Claims Act). Because the Board entered into the contract
with Vizant for the purpose of analyzing and reducing the
airport's expenses, it was acting in its governmental
capacity and governmental immunity applies.
Waiver of Immunity
address whether the legislature has waived the Board's
immunity against Vizant's contract claim. A governmental
entity waives its immunity from liability by
entering into a contract, voluntarily binding itself like any
other party to the agreement. Tooke v. City of
Mexia, 197 S.W.3d 325, 332 (Tex. 2006). But only the
legislature can waive governmental immunity from
suit, and when it chooses to waive such immunity it
must express that intent using "clear and
unambiguous" language. Lubbock Cty. Water Control
& Imp. Dist. v. Church & Akin, L.L.C., 442
S.W.3d 297, 301 (Tex. 2014). Unless waived, immunity from
suit deprives trial courts of jurisdiction over suits against
the government. State v. Lueck, 290 S.W.3d 876, 880
argues, and the court of appeals agreed, that chapter 271 of
the Local Government Code waives the Board's immunity
against Vizant's contract claim. Chapter 271 provides
local governmental entity that is authorized by statute or
the constitution to enter into a contract and that enters
into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for
breach of the contract, subject to the terms and conditions
of this subchapter.
Tex. Loc. Gov't Code § 271.152.
"contract subject to this subchapter" is "a
written contract stating the essential terms of the agreement
for providing goods or services to the local governmental
entity that is properly executed on behalf of the local
governmental entity." Id. § 271.151(2)(A).
The subchapter's "terms and conditions" include
section 271.153, which limits "the total amount of money
awarded in an adjudication brought against a ...