Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 139th District Court of Hidalgo County,
Justices Benavides, Hinojosa, and Perkes
GREGORY T. PERKES, JUSTICE
Rogelio Soto Garcia filed suit against appellant City of
Pharr, Texas (City), alleging that the City breached a
settlement agreement and that the City's governmental
immunity was waived under Texas A & M
University-Kingsville v. Lawson and Chapter 271 of the
Texas Local Government Code. The trial court denied the
City's plea to the jurisdiction. On interlocutory appeal,
the City argues that neither Lawson nor Chapter 271
applies. We affirm.
was employed by the City as Community Events Director. The
City asked Garcia to take a hair follicle drug test, and he
refused, alleging the City's conduct violated his Fourth
Amendment right against unreasonable searches. Instead,
Garcia resigned in what he characterizes as a constructive
a month of his separation and before Garcia filed suit, the
parties executed a "Mutual Separation Agreement and
Release" (the Settlement Agreement). Under the
Settlement Agreement, the City agreed to pay Garcia $8,
205.84 in exchange for Garcia's agreement to release
numerous state and federal claims against the City, including
those arising under 42 U.S.C. § 1983. The Settlement
Agreement described Garcia's release as "a material
inducement" for the City's payment.
Settlement Agreement also contained a non-disparagement
provision prohibiting the City and Garcia from "making
false, misleading or disparaging statements or
representations" about the other party. The City
allegedly breached this provision when a City official made
statements that Garcia "flunked a drug test" and
"was dirty," affecting his ability to obtain new
employment. Garcia filed suit for breach of the Settlement
Agreement. The City filed a plea to the jurisdiction based on
Garcia's pleading, and the trial court denied the plea.
This interlocutory appeal ensued. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(8).
Applicable Law & Standard of Review
governmental immunity protects the state's political
subdivisions from suits for money damages. City of
Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). It
has two components: immunity from suit, and immunity from
liability. Id. (citing Gen. Servs. Comm'n v.
Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.
2001)). A governmental unit waives immunity from liability
when it contracts with a private party, but immunity from
suit must be waived by legislative enactment or
constitutional provision. Id. (citing
Little-Tex, 39 S.W.3d at 594). "[A] statute
shall not be construed as a waiver of sovereign immunity
unless the waiver is effected by clear and unambiguous
language." Tex. Gov't Code Ann. § 311.034.
from suit deprives a trial court of subject matter
jurisdiction and may be raised in a plea to the jurisdiction.
Williams, 353 S.W.3d at 133. It is the
plaintiff's burden to plead facts that affirmatively
demonstrate the trial court's subject matter
jurisdiction. See Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993)). Because the City's plea to
the jurisdiction was based on Garcia's pleadings, we
accept the pleaded facts as true, and construe the pleadings
liberally to determine whether Garcia established a waiver of
governmental immunity. See id. (citing Tex. Air
Control Bd., 852 S.W.2d at 446). The trial court's
subject matter jurisdiction is a question of law we review de
novo. See Williams, 353 S.W.3d at 133 (citing
Tex. Nat. Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849, 855 (Tex.2002)).
alleged in his petition that the City's immunity was
waived under Texas A & M University-Kingsville v.
Lawson, 87 S.W.3d 518 (Tex. 2002) (plurality
op.). The City contends on appeal that
Lawson does not apply because: (1) unlike
Lawson, the Settlement Agreement did not settle a
pending lawsuit; and (2) regardless, the Settlement Agreement
did not settle any underlying claim for which immunity had
been waived. We conclude Lawson does apply.
Lawson, the plaintiff sued the university after he
was terminated, alleging various causes of action, including
a violation of the Whistleblower Act. Id. at 518-19.
The Whistleblower Act contains a clear and unambiguous waiver
of immunity. See Tex. Gov't Code Ann. §
554.0035. The parties settled the case and the plaintiff
brought a subsequent suit alleging the university breached
the settlement agreement. Lawson, 87 S.W.3d at 519.
The university argued that any breach of the settlement
agreement was a separate claim barred by immunity.
Id. The supreme court disagreed: "[W]e hold
that, having waived immunity from suit in the ...