Texas Association of School Boards Risk Management Fund // Southwest Texas Junior College v. Southwest Texas Junior College // Cross-Appellee, Texas Association of School Boards Risk Management Fund

ACCEPTED
NO. 15-25-00134-CV
15-25-00134-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS

In the
10/22/2025 9:12 AM
CHRISTOPHER A. PRINE
CLERK

Fifteenth Court of Appeals FILED IN
15th COURT OF APPEALS

Austin, Texas
AUSTIN, TEXAS
10/22/2025 9:12:51 AM

______________________________________________
CHRISTOPHER A. PRINE
Clerk

T EXAS A SSOCIATION OF S CHOOL B OARDS R ISK M ANAGEMENT F UND ,
Appellant,
v.
SOUTHWEST TEXAS JUNIOR COLLEGE,
Appellee.
______________________________________________
Appeal from the 38th Judicial District Court
Uvalde County, Texas, No. 2023-11-35269-CV
The Honorable Kelley T. Kimble, Presiding Judge
__________________________________________________________________

RESPONSE BRIEF OF CROSS-APPELLEE TEXAS ASSOCIATION OF
SCHOOL BOARDS RISK MANAGEMENT FUND
__________________________________________________________________

Jack W. Higdon
Texas Bar No. 24007360
jack.higdon@blankrome.com
Barry Abrams
Texas Bar No. 00822700
barry.abrams@blankrome.com
Joshua A. Huber
Texas Bar No. 24065457
josh.huber@blankrome.com
BLANK ROME LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002-2727
Telephone: (713) 228-6601
Attorneys for Cross-Appellee

ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S ORDER:
CROSS-APPELLANT: Southwest Texas Junior College

CROSS-APPELLEE: Texas Association of School Boards Risk
Management Fund
TRIAL AND APPELLATE COUNSEL:
FOR CROSS-APPELLANTS: Preston J. Dugas III (Trial and Appellate)
State Bar No. 24050189
pdugas@dcclawfirm.com
Vincent P. Circelli (Trial and Appellate)
State Bar No. 24058804
vcircelli@dcclawfirm.com
Andrew D. Spadoni (Trial and Appellate)
State Bar No. 24109198
aspadoni@dcclawfirm.com
Sarah Arroyo (Trial and Appellate)
State Bar No. 24138756
sarroyo@dcclawfirm.com
DUGAS & CIRCELLI, PLLC
4800 Bryant Irvin Ct.,
Fort Worth, Texas 76107

FOR CROSS-APPELLEES: Jack W. Higdon (Trial and Appellate)
State Bar No. 24007360
jack.higdon@blankrome.com
Barry Abrams (Appellate)
State Bar No. 00822700
barry.abrams@blankrome.com
Joshua A. Huber (Appellate)
State Bar No. 24065457
josh.huber@blankrome.com
Gregory J. Moore (Trial)
State Bar No. 24055999
greg.moore@blankrome.com

i
Christopher W. Caudill (Trial)
State Bar No. 24104717
christopher.caudill@blankrome.com
BLANK ROME LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002-2727

Clarissa M. Rodriguez (Trial and Appellate)
State Bar No. 24056222
cmrodriguez@rampagelaw.com
Lori Hanson (Trial)
State Bar No. 21128500
lwhanson@rampagelaw.com
DENTON NAVARRO RODRIGUEZ BERNAL
SANTEE & ZECH, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212

ii
TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL............................................... i

STATEMENT REGARDING ORAL ARGUMENT .................................. 1

ABBREVIATIONS AND RECORD REFERENCES ................................ 2

I. STATEMENT OF THE CASE ......................................................... 3

II. ISSUES PRESENTED ..................................................................... 4

III. STATEMENT OF FACTS ................................................................ 5

IV. SUMMARY OF THE ARGUMENT ................................................. 5

V. STANDARD OF REVIEW ............................................................... 7

VI. ARGUMENT .................................................................................... 9

A. THE FUND IS A GOVERNMENTAL ENTITY WITH IMMUNITY
FROM SUIT. ............................................................................... 9

B. THE LEGISLATURE GRANTED A LIMITED IMMUNITY WAIVER
FOR CLAIMS TO ENFORCE EXPRESS CONTRACT TERMS AND
RECOVER DEFINED CATEGORIES OF DAMAGES ........................ 10

C. THE ACT DOES NOT WAIVE THE FUND’S IMMUNITY FROM
THE COLLEGE’S CONSEQUENTIAL DAMAGES CLAIM. ................ 11

1. The Legislature Did Not Grant a General Waiver of
Immunity for Consequential “Delay Damages” .......... 11

2. The Fund is Not the Property Owner and Therefore
Cannot Impose “Owner-Caused” Construction
Delays or Acceleration. ................................................ 14

iii
VII. PRAYER ......................................................................................... 19

CERFITICATE OF COMPLIANCE ........................................................ 20

CERFITICATE OF SERVICE................................................................. 21

iv
TABLE OF AUTHORITIES

Page(s)

Cases

Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.
Political Subdivisions Prop./Cas. Joint Self-Ins. Fund,
212 S.W.3d 320 (Tex. 2006) .................................................................. 9

Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Benavides
Indep. Sch. Dist.,
221 S.W.3d 732 (Tex. App.—San Antonio 2007, no pet.) ................... 10

Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ................................................................ 8, 9

City of Corpus Christi v. Graham Construction Services, Inc.
No. 13-19-00367-CV, 2020 Tex. App. LEXIS 4734 (Tex.
App. - Corpus Christi June 25, 2020, pet. denied) ....................... 17, 18

City of Houston v. Jackson,
192 S.W.3d 764 (Tex. 2006) ............................................................ 8, 14

City of Mesquite v. PKG Contracting, Inc.,
263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied)...................... 18

City of San Antonio v. Maspero,
640 S.W.3d 523 (Tex. 2022) .................................................................. 9

Cont'l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393 (Tex. 2000) .................................................................. 12

Cty. of Galveston v. Triple B Servs., LLP,
498 S.W.3d 176 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied) ................................................................................................. 14

DART v. Whitley,
104 S.W.3d 540 (Tex. 2003) ............................................................ 7, 10

v
Garland Indep. Sch. Dist. v. Reeder Gen. Contractors, Inc.,
No. 05- 22-00855-CV, 2024 Tex. App. LEXIS 2046 (Tex.
App.—Dallas Mar. 21, 2024, pet. denied) .......................................... 18

Green Intern., Inc. v. Solis,
951 S.W.2d 384 (Tex. 1997) (Gonzalez, J., dissenting) ...................... 14

In re Hall,
286 S.W.3d 925 (Tex. 2009) ................................................................ 15

ISI Contracting, Inc. v. Metro. Transit Auth. of Harris Cty.,
No. 14-24-00119-CV, 2025 Tex. App. LEXIS 5771 (Tex.
App.—Houston [14th Dist.] Aug. 5, 2025, no pet. h.)......... 5, 12, 13, 19

Reata Constr. Corp. v. City of Dallas,
197 S.W.3d 371 (Tex. 2006) .................................................................. 8

San Jacinto River Auth. v. City of Conroe,
688 S.W.3d 124 (Tex. 2024) ................................................................ 10

Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) .......................................................... 7, 8, 9

Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692 (Tex. 2003) .................................................................. 8

Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty.,
449 S.W.3d 98 (Tex. 2014) ................................................ 11, 12, 13, 18

Statutes

Tex. Gov’t. Code
§ 311.034 ............................................................................................... 8
§ 791.001 ............................................................................................... 9
§ 2259 .................................................................................................... 9
§ 2259.002 ............................................................................................. 9
§ 2259.031(a) ......................................................................................... 9

vi
Tex. Loc. Gov’t Code
§ 271.151 ............................................................................................... 5
§ 271.151(2)(A) ................................................................................ 5, 11
§ 271.152 ..................................................................................... passim
§ 271.153 ............................................................................. 4, 11, 12, 16
§ 271.153(a)(1)............................................................................. passim
§ 271.153(a)(2)..................................................................................... 16
§ 271.153(b)(1)..................................................................................... 13

Other Authorities

House Research Org., Bill Analysis, Tex. H.B. 2039
79th Leg., R.S. (2005) ..................................................................... 6, 15

Senate Research Ctr., Bill Analysis, Tex. H.B. 2039
79th Leg., R.S. (2005) ........................................................................... 7

TEX. R. APP. P. 9.7 ...................................................................................... 5

vii
STATEMENT REGARDING ORAL ARGUMENT

Counsel for Cross-Appellee requests oral argument because it may

assist the Court in understanding the procedural aspects of the case

below and afford the members of the Court the opportunity to ask counsel

for Cross-Appellant and Cross-Appellee any questions they may have

about the record and the jurisdictional matters involved.

1
ABBREVIATIONS AND RECORD REFERENCES

Abbreviations

“Fund” refers to Appellant/Cross-Appellee, Texas Association of School
Boards Risk Management Fund.

“College” refers to Appellee/Cross-Appellant, Southwest Texas Junior
College.

Record References

References to the Clerk’s Record are abbreviated “CR [pg#].”

References to the Supplemental Clerk’s Record are abbreviated “SCR
[pg#].”

References to the Reporter’s Record are abbreviated “RR [pg#]:[ln#].”

2
I.
STATEMENT OF THE CASE

Nature of the Case: This is an intergovernmental contract dispute.
The College seeks replacement cost value
benefits under a self-insurance contract
between it and other members of the Fund, for
property damage allegedly sustained during an
April 2021 hailstorm.

Claiming a waiver of the Fund’s governmental
immunity from suit and liability under TEX.
LOC. GOV’T CODE § 271.152, the College seeks
damages for coverage that does not exist under
the coverage documents – i.e., replacement cost
value benefits for property damage that has not
been repaired nor replaced – based upon the
equitable theories of waiver and
unconscionability, and allegations that the
Fund committed fraud and/or acted in bad
faith.

Course of Proceedings: The College sued the Fund on November 17,
2023, 1/ and the Fund asserted its governmental
immunity from suit in an amended answer and
partial plea to the jurisdiction on June 13, 2025
(“Jurisdictional Plea”).2/ The Jurisdictional Plea
asserted that no waiver of the Fund’s immunity
from suit and liability exists for the College’s: (1)
equitable theories of waiver and
unconscionability, (2) intentional tort theories of
fraud and bad faith, or (3) claims for
consequential, exemplary, or treble damages. 3/

1/ CR 5-21.
2/ CR 31-103.
3/ CR 37-43.

3
The College responded to the Jurisdictional Plea
on July 18, 2025. 4/ The trial court held an oral
hearing on the Jurisdictional Plea on July 21,
2025. 5/

Trial Court Disposition: The Jurisdictional Plea was granted in part and
denied in part, on July 30, 2025.6/ The trial court
partially granted the Jurisdictional Plea
regarding the College’s claims for consequential,
exemplary, and treble damages and dismissed
those claims with prejudice for lack of subject
matter jurisdiction. The trial court partially
denied the Jurisdictional Plea regarding the
College’s equitable and intentional tort theories.

II.
ISSUE PRESENTED

Did the trial court err when it granted the Fund’s Jurisdictional

Plea as it pertained to the College’s claim for consequential damages,

where TEX. LOC. GOV’T CODE § 271.153 specifically does not waive the

Fund’s governmental immunity for consequential damages other than an

“amount owed as compensation for the increased cost to perform the work

as a direct result of owner-caused delays or acceleration.” [Germane to

Cross-Appellant’s Issue 1].

4/ CR 106-123.
5/ CR 104.
6/ CR 137-138.

4
III.
STATEMENT OF FACTS

Pursuant to TEX. R. APP. P. 9.7, the Fund adopts and incorporates

by reference the Statement of Facts in the Brief of Appellant filed by the

Fund in this appeal.

IV.
SUMMARY OF THE ARGUMENT

TEX. LOC. GOV’T CODE §§ 271.151, et. seq. (the “Act”) created a

narrow immunity waiver to adjudicate claims for breach of the express

terms of government contracts. Id. §§ 271.151(2)(A), 271.152. This

limited immunity waiver is restricted to adjudication awards for defined

types of damages, which the Legislature expressly stated does not

encompass any claim for consequential damages other than “the

increased cost to perform . . . as a direct result of owner-caused delays or

acceleration.” Id. §§ 271.153(a)(1), (b)(1) (emphasis added).

The Fund is immune from the College’s consequential damages

claim because the College, and not the Fund, is the property “owner” in

this case, and the Fund therefore cannot impose “owner-caused”

construction delays or acceleration under any set of facts. ISI

Contracting, Inc. v. Metro. Transit Auth. of Harris Cty., No. 14-24-00119-

5
CV, 2025 Tex. App. LEXIS 5771, at *38-39 (Tex. App.—Houston [14th

Dist.] Aug. 5, 2025, no pet. h.) (“[T]o the extent a breach-of-contract claim

seeks . . . delay damages that are not ‘any amount owed as compensation

for the increased cost to perform the work as a direct result of owner-

caused delays,’ there is no clear and unambiguous waiver of

governmental immunity under the Act.”) (quoting TEX. LOC. GOV’T CODE

§ 271.153(a)(1)) (emphasis added).

The plain and ordinary meaning of the statutory text does not

support the College’s contrary position that the phrase “owner-caused

delays” in the Act does not refer to property “owners.” When the

Legislature authorized a recovery of damages for the “increased cost to

perform the work as a direct result of owner-caused delays or

acceleration,” it did so in the context of contractor plaintiffs who contract

to perform work on government owned property. That construction of the

statute is consistent with the Act’s legislative history, which emphasizes

the Act’s significance to construction contractors. See

also House Research Org., Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S.

(2005) (explaining that proponents of Section 271.152 had argued that it

would “bring fairness to business relationships between contractors and

6
local government entities,” avoid “a fundamentally unfair situation that

denie[d] redress . . . to a contractor who completed a project for a city that

refused to pay,” and address the concerns of contractors who “do not bid

for local government contracts.”); Senate Research Ctr., Bill Analysis,

Tex. H.B. 2039, 79th Leg., R.S. (2005).

By its plain terms, Section 271.153(a)(1), does not apply here

because the Fund is not the “owner” of the relevant properties and the

College did not allege or adduce any jurisdictional evidence that it had

incurred increased costs to perform work as a direct result of its own

“owner-caused” delays or acceleration.

V.
STANDARD OF REVIEW

Government entities remain immune from suit and liability except

to the extent the Legislature has expressly waived that immunity. See

DART v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Immunity waivers

must be based on the application of a statute and the extent of any waiver

is limited by that statute’s text. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). A plaintiff that sues a governmental

unit must affirmatively demonstrate the court’s jurisdiction by alleging

a statutory immunity waiver. DART, 104 S.W.3d at 542.

7
Because a waiver of governmental immunity “may hamper

governmental functions by requiring tax resources to be used for

defending lawsuits and paying judgments rather than using those

resources for their intended purposes,” the Texas Supreme Court has

instructed that such waivers must be “clearly and unambiguously

stated.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex.

2006); see TEX. GOV’T CODE §311.034. Statutes waiving immunity

therefore are “strictly construed,” City of Houston v. Jackson, 192 S.W.3d

764, 770 (Tex. 2006), and courts “generally resolve ambiguities by

retaining immunity.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 697 (Tex. 2003).

A plea to the jurisdiction contests a court’s subject matter

jurisdiction to decide all or some of the issues in a case. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).The applicable procedural

standard “generally mirrors that of a summary judgment.” Miranda, 133

S.W.3d at 228.

To determine if the plaintiff has met its burden to demonstrate a

viable claim subject to a statutory immunity waiver, a court must

“consider the facts alleged by the plaintiff and, to the extent it is relevant

8
to the jurisdictional issue, the evidence submitted by the parties.” Bland

Indep. Sch. Dist., 34 S.W.3d at 554. To avoid dismissal, plaintiffs “must

raise at least a genuine issue of material fact to overcome the challenge

to the trial court’s subject matter jurisdiction.” Miranda, 133 S.W.3d at

227.

A trial court’s grant or denial of an assertion of governmental

immunity is reviewed de novo. City of San Antonio v. Maspero, 640

S.W.3d 523, 528 (Tex. 2022).

VI.
ARGUMENT

A. THE FUND IS A GOVERNMENTAL ENTITY WITH IMMUNITY FROM SUIT.

The Fund is an intergovernmental self-insurance risk pool

operating under the Texas Interlocal Cooperation Act, TEX. GOV’T CODE

§§ 791.001, et seq.; and Chapter 2259 of the Government Code. It was

created by its local governmental members to administer their self

insurance funds, as authorized by the Legislature. Id., § 2259.031(a). In

creating a risk pool, the parties to the interlocal agreement did not waive

the Fund’s immunity, id. § 2259.002, which it enjoys to the same extent

as any other Texas political subdivision. See Ben Bolt-Palito Blanco

Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint

9
Self-Ins. Fund, 212 S.W.3d 320, 326 (Tex. 2006); Tex. Ass’n of Sch. Bds.

Risk Mgmt. Fund v. Benavides Indep. Sch. Dist., 221 S.W.3d 732, 737

(Tex. App.—San Antonio 2007, no pet.).

The College therefore cannot proceed with its consequential

damages claim unless it first satisfies its burden to establish a legislative

waiver of the Fund’s immunity with respect to that claim. DART, 104

S.W.3d at 542; San Jacinto River Auth. v. City of Conroe, 688 S.W.3d 124,

133 (Tex. 2024) (“jurisdiction is determined on a claim-by-claim basis”).

B. THE LEGISLATURE GRANTED A LIMITED IMMUNITY WAIVER FOR
CLAIMS TO ENFORCE EXPRESS CONTRACT TERMS AND RECOVER
DEFINED CATEGORIES OF DAMAGES.

The College alleges that the Legislature waived the Fund’s

immunity through TEX. LOC. GOV’T CODE § 271.152, 7/ which states:

“A 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.” (emphasis added).

The Act defines the term “contract subject to this subchapter” as “a

written contract stating the essential terms of the agreement for

7/ CR 6.

10
providing goods or services to the local government entity that is properly

executed on behalf of the local governmental entity.” Id., §

271.151(2)(A)(emphasis added).

The scope of the Act’s immunity waiver is further narrowed by

Section 271.153, which expressly excludes the recovery of consequential

damages other than “the increased cost to perform . . . as a direct result

of owner-caused delays or acceleration. Id. §§ 271.153(a)(1), (b)(1)

(emphasis added); Zachry Constr. Corp. v. Port of Hous. Auth. of Harris

Cty., 449 S.W.3d 98, 110 (Tex. 2014) (“Zachry”) (“Section 271.152 uses

Section 271.153 to further define to what extent immunity has been

waived.”).

C. THE ACT DOES NOT WAIVE THE FUND’S IMMUNITY FROM THE
COLLEGE’S CONSEQUENTIAL DAMAGES CLAIM.

1. The Legislature Did Not Grant a General Waiver of Immunity
for Consequential “Delay Damages.”

The College incorrectly characterizes Section 271.153 as a general

immunity waiver for any claim for consequential “delay damages.” See

College Brief at 12 (“At worst Plaintiff has presented clear evidence that

its pleadings seek delay damages that the Texas legislature has

specifically permitted recovery for.”); 13 (“The Texas legislature included

11
explicit language allowing for the recovery of delay damages under the

Act . . .”). That interpretation would require the Court to excise the

phrase “owner-caused” from Section 271.153(a)(1) altogether. See Cont'l

Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex.

2000) (noting that courts must “give effect to all words of a statute, and,

if possible, [ ] not treat any statutory language as mere surplusage.”).

When it adopted the Act, the Legislature confined its consequential

damages immunity waiver to “owner-caused delays.” The Fund is not

“improperly attempt[ing] to narrow the statute” by giving effect to all of

the Legislature’s words. See College Brief at 23. Other courts have

recently correctly read the Act as the Fund does. In ISI Contracting, Inc.

v. Metro. Transit Auth. of Harris Cty., for example, the Fourteenth Court

of Appeals recently analyzed this issue and observed that the Act does

not embody a general waiver of immunity for all alleged delay damages:

In construing these provisions in Zachry, the Supreme Court
of Texas concluded that section 271.153 allows recovery of
only one type of consequential damages in the adjudication in
question— “amount[s] owed as compensation for the
increased cost to perform the work as a direct result of owner-
caused delays.” See [TEX. LOC. GOV’T CODE] § 271.153; Zachry
Constr. Corp., 449 S.W.3d at 110-12. . . . . [G]iven the
Supreme Court’s statement that “[d]elay damages are
consequential damages,” we conclude that in the context of
the Act the Zachry precedent mandates the conclusion that

12
any delay damages other than “amount[s] owed as
compensation for the increased cost to perform the work as a
direct result of owner-caused delays” are consequential
damages disallowed under section 271.153(b)(1). See Zachry
Constr. Corp., 449 S.W.3d at 110-12, 114, n.71.

Therefore, to the extent a breach-of-contract claim by
[plaintiff] seeks . . . delay damages that are not “any amount
owed as compensation for the increased cost to perform the
work as a direct result of owner-caused delays,” the trial court
did not err by impliedly determining that (1) the clear and
unambiguous waiver of governmental immunity under the
Act does not apply to the claim[.]

2025 Tex. App. LEXIS 5771, at *37-39 (emphasis added).

The College ultimately concedes that “owner-caused” delays are the

only type of consequential delay damages for which the Legislature has

expressly waived immunity, but maintains that it has pleaded

consequential delay damages that supposedly are “nearly identical to

what the legislature has expressly allowed a claimant to recover in a

breach of contract case against a governmental entity.” See College Brief

at 23 (emphasis added). Use of the telling phrase “nearly identical”

confirms that the College is trying to sidestep the standard applicable

when determining the scope of statutory immunity waivers, which the

Texas Supreme Court has instructed must be “strictly construed.”

Jackson, 192 S.W.3d at 770.

13
2. The Fund is Not the Property Owner and Therefore Cannot
Impose “Owner-Caused” Construction Delays or Acceleration.

According to the College, because the phrase “owner-caused delays”

is not defined in the Act, that term does not necessarily mean the owner

of property, and the Fund therefore could be held liable for delay damages

as “the owner of [the Fund’s] risk management programs, including

property coverage.” See College Brief at 25. But the plain and ordinary

meaning of the statutory text does not support the College’s position,

because the term “owner-caused delays” plainly refers to “delay damages”

in the construction context.8/

“‘Delay damages’ is a term of art in the construction industry . . . .”

Green Intern., Inc. v. Solis, 951 S.W.2d 384, 393 (Tex. 1997) (Gonzalez,

J., dissenting). It refers to construction damages “‘arising out of delayed

completion, suspension, acceleration or disrupted performance’; these

damages compensate the contracting party that is injured when a project

8/ In any event, the Fund does not “own” anything, and the College adduced no
evidence that the Fund purportedly is “the owner of [the Fund’s] risk management
programs, including property coverage.” See College Brief at 25. The Fund is an
“administrative agency” created by its governmental entity members, including
the College, to perform risk management services and governmental functions
relative to the administration of its members’ collective agreement to self-insure
against various risks. See CR 56.

14
takes longer than the construction contract specified.” Cty. of Galveston

v. Triple B Servs., LLP, 498 S.W.3d 176, 181 (Tex. App.—Houston [1st

Dist.] 2016, pet. denied) (citing Phillip J. Bruner & Patrick J. O’Connor,

5 Construction Law § 15:29 (2002)). When the Legislature authorized a

recovery of damages for the “increased cost to perform the work as a

direct result of owner-caused delays or acceleration,” it did so in the

context of a contractor plaintiff who is party to a written contract to

perform work on property owned by a defendant local governmental

entity.

That construction of the statute also is consistent with the Act’s

legislative history, which emphasizes the Act’s importance to

construction contractors. See also House Research Org., Bill Analysis,

Tex. H.B. 2039, 79th Leg., R.S. (2005) (explaining that proponents of

Section 271.152 had argued that it would “bring fairness to business

relationships between contractors and local government entities,” avoid

“a fundamentally unfair situation that denie[d] redress . . . to a contractor

who completed a project for a city that refused to pay,” and address the

concerns of contractors who “do not bid for local government contracts.”);

Senate Research Ctr., Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S.

15
(2005).

Moreover, Texas courts “will not give an undefined term a meaning

that is out of harmony or inconsistent with other terms in the statute.”

In re Hall, 286 S.W.3d 925, 929 (Tex. 2009). Where, as here, “a different,

more limited, or precise definition is apparent from the term’s use in the

context of the statute, [courts] apply that meaning.” Id. Other provisions

in the Act confirm that the Legislature used the phrase “owner-caused

delays” in the context of a local government property owner. For example,

the only other category of damages for which a waiver of immunity in

Section 271.153 exists beyond the “amount due and owing under the

contract,” is for amounts owed pursuant to “change orders or additional

work the contractor is directed to perform by a local governmental entity

in connection with the contract.” See TEX. LOC. GOV’T CODE §

271.153(a)(2) (emphasis added). The context in which the Legislature

adopted Sections 271.153(a)(1)-(2) of the Act is self-evident: to allow

construction contractors to recover increased costs to perform a contract

subject to the Act that are caused by a local government property owner’s

delays, acceleration, or change orders.

By its plain terms, Section 271.153(a)(1), does not apply here

16
because the College – not the Fund – is the “owner” of the relevant

properties9/ and the College did not allege or adduce any jurisdictional

evidence that it had incurred increased costs to perform work as a direct

result of its own “owner-caused delays or acceleration.”

The College’s characterization of City of Corpus Christi v. Graham

Construction Services, Inc. as having “rejected a similar argument” is

wrong. See College Brief at 23-25. In Graham Construction Services, Inc.,

the City of Corpus Christi (the “City”) was sued for delay damages

under Section 271.153(a)(1) by a construction contractor hired to build a

waste treatment plant for the City. See No. 13-19-00367-CV, 2020 Tex.

App. LEXIS 4734, at *2-4 (Tex. App.—Corpus Christi June 25, 2020, pet.

denied). The City argued that its immunity was not waived under Section

271.153(a)(1) because the alleged construction delays had been caused by

the City’s independent contractor, Carollo, not by the City-owner itself.

Id. at *7. The Graham Construction court found a jurisdictional fact issue

existed that allowed the claim to proceed because the construction

contract at issue specifically identified the City’s independent contractor,

Carollo, as the “Owner’s Representative.” Id. Thus, whether the alleged

9/ CR 5 (“[The College] owns the property made the basis of this suit . . .”).

17
construction delays had been caused directly by the City-owner, or

indirectly by the City-owner’s contractually designated owner-

representative, the alleged delays were attributable to the City, which

was the owner of the property being constructed.

Graham Construction does not stand for the proposition that a

waiver of immunity exists for delay damages under Section 271.153(a)(1)

in the non-construction context, simply because a plaintiff asserts that

the government defendant “owns” something.

The other authorities the College cites do not support its argument

that the Fund’s immunity has been waived for consequential delay

damages because the Fund is “the owner of [its] risk management

programs, including property coverage.” See College Brief at 25. Every

case the College cites involved claims by construction contractors against

local government property owners. See Zachry, 449 S.W.3d at 101

(“Petitioner, Zachry Construction Corporation, contracted to construct a

wharf on the Bayport Ship Channel for respondent, the Port of Houston

Authority of Harris County, Texas.”); Garland Indep. Sch. Dist. v. Reeder

Gen. Contractors, Inc., No. 05- 22-00855-CV, 2024 Tex. App. LEXIS 2046,

at *2 (Tex. App.—Dallas Mar. 21, 2024, pet. denied) (“Reeder sued the

18
District for breach of contract, alleging the two parties executed a

contract for Reeder to perform construction work at several district

campuses.”); City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444,

448 (Tex. App.—Dallas 2008, pet. denied) (“PKG contracted with the City

[of Mesquite] to construct a storm drainage system.”).

Because the College does not seek delay damages that are the

“direct result of owner-caused delays,” the clear and unambiguous

damages immunity waiver in the Act does not apply, and the trial court

properly granted the Fund’s Jurisdictional Plea regarding the College’s

consequential damages claim. ISI Contracting, Inc., 2025 Tex. App.

LEXIS 5771, at *39.

VII.
PRAYER

The Fund respectfully prays that the Court affirm the trial court’s

partial grant of the Fund’s Jurisdictional Plea, and grant all other and

further relief to which the Fund may be entitled.

19
Respectfully submitted,

By: /s/ Jack W. Higdon
Jack W. Higdon
jack.higdon@blankrome.com
State Bar No. 24007360
Barry Abrams
barry.abrams@blankrome.com
State Bar No. 00822700
Joshua A. Huber
josh.huber@blankrome.com
State Bar No. 24065457
BLANK ROME LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002-2727
(713) 228-6601
(713) 228-6605 (Fax)
ATTORNEYS FOR CROSS-APPELLEE,
TEXAS ASSOCIATION OF SCHOOL
BOARDS RISK MANAGEMENT FUND

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this brief complies
with the type-volume restrictions of TEX. R. APP. P. 9.4(e), (i)(2)(B).
Exclusive of the portions exempted by Rule 9.4(i)(1), this brief contains
2,998 words.

/s/ Jack W. Higdon
Jack W. Higdon

20
CERTIFICATE OF SERVICE

I certify pursuant to TEX. R. APP. P. 9.5(b)(1) that a true and correct
copy of the foregoing and/or attached instrument was electronically
served on counsel for all parties on October 22, 2025, through the
Fifteenth District Court of Appeals’ electronic filing manager, as
indicated below:

Via Electronic Service:
Preston J. Dugas III
pdugas@dcclawfirm.com
Vincent P. Circelli
vcircelli@dcclawfirm.com
Andrew D. Spadoni
aspadoni@dcclawfirm.com
Sarah Arroyo
sarroyo@dcclawfirm.com
DUGAS & CIRCELLI, PLLC
4800 Bryant Irvin Ct.,
Fort Worth, Texas 76107

/s/ Jack W. Higdon
Jack W. Higdon

21
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Penny Johnson on behalf of Jack Higdon
Bar No. 24007360
pljohnson@blankrome.com
Envelope ID: 107137917
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Response Brief of Cross-Appellee Texas Association of
School Boards Risk Management Fund
Status as of 10/22/2025 9:21 AM CST

Associated Case Party: Texas Association of School Boards Risk Management Fund

Name BarNumber Email TimestampSubmitted Status

Barry Abrams barry.abrams@blankrome.com 10/22/2025 9:12:51 AM SENT

Jack Higdon jack.higdon@blankrome.com 10/22/2025 9:12:51 AM SENT

Joshua Huber josh.huber@blankrome.com 10/22/2025 9:12:51 AM SENT

Penny Johnson penny.johnson@blankrome.com 10/22/2025 9:12:51 AM SENT

Liniuse Umunna Liniuse.Umunna@blankrome.com 10/22/2025 9:12:51 AM SENT

Noorhan Chahal noorhan.chahal@blankrome.com 10/22/2025 9:12:51 AM SENT

Clarissa Rodriguez cmrodriguez@rampagelaw.com 10/22/2025 9:12:51 AM SENT

Yvette Manzano yvette.manzano@blankrome.com 10/22/2025 9:12:51 AM SENT

Christopher W.Caudill Christopher.Caudill@BlankRome.com 10/22/2025 9:12:51 AM SENT

Gregory J.Moore Greg.Moore@BlankRome.com 10/22/2025 9:12:51 AM SENT

Associated Case Party: Southwest Texas Junior College

Name BarNumber Email TimestampSubmitted Status

Amy Easley aeasley@dcclawfirm.com 10/22/2025 9:12:51 AM SENT

Preston J.Dugas III pdugas@dcclawfirm.com 10/22/2025 9:12:51 AM SENT

Vincent P. Circelli vcircelli@dcclawfirm.com 10/22/2025 9:12:51 AM SENT

Andrew D. Spadoni aspadoni@dcclawfirm.com 10/22/2025 9:12:51 AM SENT

Sarah Arroyo sarroyo@dcclawfirm.com 10/22/2025 9:12:51 AM SENT