Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 343rd District Court of San Patricio County,
Chief Justice Contreras and Justices Longoria and Perkes
L. LONGORIA JUSTICE.
Naismith Engineering, Inc. (NEI) appeals from a plea to the
jurisdiction granted in favor of appellee the City of Aransas
Pass, Texas (the City). By one issue, NEI argues that the
trial court erred when it granted the City's plea. We
City's manager, authorized by the City Council, entered
into a contract with NEI to design improvements to the
boat-ramp area of the City's Conn. Brown Harbor (CBH
project). The scope of work by NEI for the CBH project
included engineering, permitting, and administration services
for the boating access and facilities at Conn. Brown Harbor.
NEI provided the design and the City then awarded the
construction contract to J.M. Davidson, Ltd.
City sued NEI, J.M. Davidson, Ltd., and RLI Insurance
Company, who provided the surety on J.M. Davidson, Ltd.'s
performance bond, alleging that there were deficiencies
related to the CBH project. The City sought over $1,000,000
in damages. NEI subsequently counterclaimed against the City,
seeking to recover outstanding fees for work performed
pursuant to NEI's contract to work for the City as the
engineer of record. NEI alleged that "[NEI] performed
work ranging from general project services to general harbor
engineering and planning and services for waterline
extension. [The City] has failed to pay [NEI] for rendered
services in breach of the parties' agreement." In
its second amended counterclaim, NEI sought
"approximately $611,575.36, plus interest, for work
performed under the contractual relationship."
that it had governmental immunity, the City filed a plea to
the jurisdiction challenging NEI's counterclaim. NEI
countered that immunity had been waived by chapter 271 of the
Local Government Code. See Tex. Loc. Gov't Code
Ann. § 271.152. The trial court granted the plea to the
jurisdiction, dismissing NEI's counterclaim. This appeal
Plea to the Jurisdiction
Standard of Review
a court has subject-matter jurisdiction over a dispute that
involves a governmental agency is a question of law. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). On appeal, courts use a de novo
standard in determining whether the plaintiff's pleadings
allege sufficient facts to demonstrate that a trial court has
jurisdiction over the controversy. Id. In reviewing
the pleadings, courts are not to weigh whether the
plaintiff's claims have merit; instead, courts must
decide whether the pleadings and the evidence before the
trial court demonstrate that the court may exercise
jurisdiction over the parties' dispute. See County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
reviewing whether the pleadings demonstrate that the trial
court has jurisdiction over the subject of the dispute, the
plaintiff's pleadings must "affirmatively
demonstrate the court's jurisdiction by alleging a valid
waiver of immunity." Dall. Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 542 (Tex. 2003). When the plea
"challenges the existence of jurisdictional facts,"
the relevant evidence submitted by the parties is considered,
when necessary, in resolving the defendant's challenge.
Miranda, 133 S.W.3d at 227. In this appeal, the
dispute concerns whether NEI's pleadings and the evidence
demonstrate that the Legislature waived the City's
immunity regarding NEI's alleged breach of contract
Political subdivisions in Texas have long enjoyed immunity
from suit when performing governmental functions like that
involved here. While this immunity can be waived, we have
consistently deferred to the Legislature to do so; indeed, we
have said immunity from liability "depends entirely upon
statute." For its part, the Legislature has mandated
that no statute ...