Andrew Narvaez D/B/A Texas Fabricators v. Montgomery County

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00095-CV
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ANDREW NARVAEZ D/B/A TEXAS FABRICATORS, Appellant

V.

MONTGOMERY COUNTY, Appellee

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 23-11-17518-CV
__________________________________________________________________

MEMORANDUM OPINION

Andrew Narvaez d/b/a Texas Fabricators (“Appellant” or “Plaintiff”) appeals

from the trial court’s order granting Montgomery County’s (“Appellee” or the

“County”) plea to the jurisdiction and dismissing the case for lack of jurisdiction.

We affirm.

Background

Plaintiff filed an Original Petition (hereinafter the “petition”) alleging that the

County had a contract with Narvaez to rebuild the County election carts and that the

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parties later entered an amendment to the contract through a change order.

According to the petition, the County provided Plaintiff with incorrect election cart

measurements, Plaintiff purchased materials and began building the carts, and then

the County rescinded the contract and took possession of the materials that a third

party used to then build the carts. Plaintiff asserts claims against the County for

breach of contract, negligence, fraud, and conversion.

On January 17, 2024, the County filed a plea to the jurisdiction, arguing that

Plaintiff’s pleadings do not and cannot establish a waiver of the County’s immunity

from suit and immunity from liability. According to the County’s plea to the

jurisdiction, the trial court lacks jurisdiction over Plaintiff’s breach of contract cause

of action because the Plaintiff failed to plead or prove a waiver of immunity and the

Legislature has not waived the County’s immunity for the Plaintiff’s breach of

contract claim. As to the tort claims, the County states in its plea to the jurisdiction

that a suit against the County for negligence must be brought under the Texas Tort

Claims Act (“TTCA”), which waives immunity for negligence claims only to the

extent expressly created by the Act. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.021, 101.025. According to the County, the TTCA waives immunity for a

negligence claim only in “three general areas: ‘use of publicly owned automobiles,

premises defects, and injuries arising out of conditions or use of property.’” See Tex.

Dept. of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting Lowe v. Tex. Tech

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Univ., 540 S.W.2d 297, 298 (Tex. 1976)). Because Plaintiff’s negligence claim does

not fit within the defined areas of the TTCA, the County argues it is barred by the

County’s immunity. With respect to the Plaintiff’s fraud and conversion causes of

action, the County states in its plea that both claims are intentional torts that are

excluded from the waiver of immunity under the TTCA. See Tex. Civ. Prac. & Rem.

Code Ann. § 101.057 (“This chapter does not apply to a claim . . . (2) arising out of

. . . any other intentional tort.”).

Plaintiff filed a Response to Defendant’s Plea to the Jurisdiction and argues

in its response that the trial court has jurisdiction over Plaintiff’s claims.1 As to

Plaintiff’s cause of action for breach of contract, Plaintiff cites Tooke v. City of

Mexia,2 and argues that section 271.005 of the Texas Local Government Code

authorizes counties to enter into contracts for personal property and that section

271.152 of the Texas Local Government Code waives sovereign immunity for local

governmental entities that enter into contracts under that subchapter.

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Plaintiff also states in its Response that Plaintiff did not receive timely notice
of the hearing on the plea to the jurisdiction. As for Plaintiff’s negligence, fraud, and
conversion claims, in Plaintiff’s Response, Plaintiff states the trial court needed to
determine whether the building of election carts is a governmental or proprietary
function, and that the TTCA’s list of governmental functions for which the Act
provides immunity is inapplicable here. We do not include a discussion of these
arguments because Plaintiff does not raise these arguments on appeal.
2
197 S.W.3d 325 (Tex. 2006).
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The County filed a Reply to Plaintiff’s Response. Therein, the County argues

that Plaintiff’s petition included no allegation of a waiver of the County’s

governmental immunity from suit or liability. The County also states Tooke does not

support Plaintiff’s claims, section 271.152 of the Local Government Code does not

apply to the County or waive immunity, section 271.005 of the Local Government

Code does not contain language that grants a clear and unambiguous waiver of the

County’s immunity, the trial court need not determine whether the building of

election carts is a governmental or proprietary function because the County does not

perform proprietary functions, and Plaintiff did not and cannot demonstrate any

waiver for a tort claim covered by the TTCA.

On February 14, 2024, the trial court signed an Order Granting Defendant’s

Plea to the Jurisdiction and dismissing the case for lack of jurisdiction. Plaintiff

timely appealed.

Issues on Appeal

On appeal, the Appellant argues in issue one that the trial court erred in

granting the plea to the jurisdiction. According to Appellant, sections 262.007(a) and

271.005(a) of the Texas Local Government Code waive the County’s immunity for

Appellant’s breach of contract claim and the Texas Constitution’s Taking Clause

waives the County’s immunity for Appellant’s conversion claim. In issue two,

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Appellant argues, in the alternative, that the trial court erred in failing to allow

Appellant to amend the pleadings prior to dismissal.

The County argues on appeal that the Plaintiff’s petition failed to directly or

indirectly mention the County’s immunity and failed to plead a valid waiver of

immunity, and that despite the County’s plea to the jurisdiction putting the Plaintiff

on notice that the Plaintiff had failed to plead or prove waiver of the County’s

governmental immunity for any of the Plaintiff’s claims, the Plaintiff never amended

Plaintiff’s Original Petition. According to the County, section 271.152 of the Texas

Local Government Code, the section that the Plaintiff relied upon in Plaintiff’s

Response to Defendant’s Plea to the Jurisdiction as a basis for a waiver of the

County’s immunity, does not apply to counties. The County also argues that any

reliance upon section 262.007(a) of the Texas Local Government Code for a waiver

of the County’s immunity is untimely because it was not raised in the trial court and

has been raised for the first time on appeal. The County also argues that even if that

statutory provision had been raised at the trial court, section 262.007 does not apply

here because the contract at issue was not for engineering, architectural, or

construction services. The County also contends that nothing in the express language

of section 271.005 of the Texas Local Government Code waives immunity for this

contract. As for the plaintiff’s tort claims for negligence, fraud, and conversion, the

County argues those claims do not fall within the TTCA’s waiver of immunity

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because they do not relate to automobile use, a premise defect, or injuries arising out

of conditions or use of property. The County also argues that the causes of action for

fraud and conversion are intentional torts for which the TTCA does not waive

immunity. In response to the Appellant’s second issue, the County asserts that the

trial court was authorized to grant the plea to the jurisdiction without giving the

Plaintiff an opportunity to amend the petition because the pleadings on their face

negated jurisdiction and, even if they did not, the Plaintiff had the opportunity to

amend the petition in response to the plea to the jurisdiction but chose only to file a

response to the plea to the jurisdiction.

Standard of Review and Applicable Law

Governmental immunity protects political subdivisions of the State, including

counties, from lawsuits for damages, because unless the governmental unit has

consented to suit, a trial court lacks subject matter jurisdiction to consider a claim

against it. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26

(Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3, 696

(Tex. 2003); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B).

Governmental immunity consists of immunity from liability and immunity

from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). A governmental

entity that enters into a contract may waive its immunity from liability but retains its

immunity from suit unless specifically waived by the Legislature. Id. Governmental

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immunity deprives the trial court of subject matter jurisdiction where

instrumentalities of the state have been sued, absent waiver of immunity by the state.

Miranda, 133 S.W.3d at 224.

A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction over a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000). A plea to the jurisdiction is a proper instrument to raise the issue of

governmental immunity. Miranda, 133 S.W.3d at 225-26. Where the jurisdictional

facts are not in dispute, we review the trial court’s ruling on a plea to the jurisdiction

under a de novo standard of review, liberally construing the plaintiff’s pleadings and

construing the evidence in favor of the nonmovant. See id. at 226. Statutory waivers

of immunity are to be construed narrowly. See Tex. Adjutant Gen.’s Off. v. Ngakoue,

408 S.W.3d 350, 353 (Tex. 2013) (citing Tex. Gov’t Code Ann. § 311.034). When

construing a statute that purportedly waives immunity, we generally engage in a

heavy presumption in favor of immunity and resolve ambiguities in favor of the

governmental entity retaining immunity. See Harris Cnty. Hosp. Dist. v. Tomball

Reg’l Hosp., 283 S.W.3d 838, 844, 848 (Tex. 2009) (citing Nueces Cnty. v. San

Patricio Cnty., 246 S.W.3d 651, 653 (Tex. 2008); Taylor, 106 S.W.3d at 697).

The Local Government Contract Claims Act outlines the conditions

under which immunity is waived from breach of contract claims against local

governmental entities, but it expressly does not apply to counties. See Tex. Loc.

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Gov’t Code Ann. §§ 271.151-.160 (“Chapter 271, Subchapter I”) (in section

271.151(3), providing that “local governmental entity” for purposes of the

subchapter “does not include a county”). There is a “heavy presumption in favor of

immunity[,]” and a statutory waiver of sovereign immunity must be “clear and

unambiguous[.]” See Tex. Gov’t Code Ann. § 311.034; City of Galveston v. State,

217 S.W.3d 466, 469 (Tex. 2007).

When there is a challenge solely to the pleadings, we decide if the plaintiff

has alleged sufficient jurisdictional facts to show the trial court’s subject matter

jurisdiction, using a liberal construction in favor of the plaintiff. Miranda, 133

S.W.3d at 226. If the plaintiff’s pleadings “affirmatively negate the existence of

jurisdiction,” then a plea to the jurisdiction may be granted without affording the

plaintiff an opportunity to amend his pleadings. Id. at 227. To affirmatively

demonstrate the trial court’s jurisdiction, the plaintiff must allege a valid waiver of

immunity, which may be either a reference to a statute or to evidence of express

legislative permission. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999); see Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)

(a plaintiff must allege a valid waiver of sovereign immunity to establish

jurisdiction).

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Analysis

Here, in the Original Petition, Plaintiff fails to assert anything about a waiver

of the County’s immunity nor does the petition reference a statutory basis for a

waiver of the County’s immunity. A plaintiff must plead facts invoking a waiver of

immunity but need not use particular magic words. Univ. of N. Tex. v. Harvey, 124

S.W.3d 216, 223, n.3 (Tex. App.—Fort Worth 2003, pet. denied) (emphasis added);

see also Lara v. Tex. Dep’t of Crim. Justice, No. 13-11-00510-CV, 2012 Tex. App.

LEXIS 5599, at *6 (Tex. App.—Corpus Christi–Edinburg July 12, 2012, no pet.)

(mem. op.) (rejecting the notion that a pleading was jurisdictionally defective merely

because it failed to “address the issue of appellees’ immunity [or] assert a basis for

waiver of immunity” and instead focusing on the facts alleged in the petition to

determine the trial court’s jurisdiction).

As for the Plaintiff’s breach of contract claim, the Plaintiff argued in the trial

court and argues on appeal that Montgomery County’s immunity for any breach of

contract claim is waived under section 271.005(a) of the Texas Local Government

Code. For the first time on appeal, Appellant also argues Montgomery County’s

immunity is waived for Appellant’s breach of contract claim under section

262.007(a).3

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On appeal, Appellant does not challenge the trial court’s grant of the plea to
the jurisdiction as to Appellant’s negligence and fraud claims. On appeal, Appellant

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Assuming without deciding that the Plaintiff pleaded sufficient facts that

would support a waiver of immunity under either 271.005 or 262.007(a), we

conclude that neither statute establishes a waiver of immunity for the Appellant’s

breach of contract claim against the County.

Section 271.005(a) provides, in relevant part, that “[t]he governing body of a

governmental agency may execute, perform, and make payments under a contract

with any person for the use or the purchase or other acquisition of any personal

property, or the financing thereof. The contract is an obligation of the governmental

agency.” Tex. Loc. Gov’t Code Ann. § 271.005(a). The definition of “governmental

agency” in Chapter 271 generally includes a county. See Tex. Loc. Gov’t Code Ann.

§ 271.003(4). But, in other subparts of Chapter 271, counties are expressly excluded

from the subsection that contains a waiver of immunity. See, e.g., id. § 271.152.

Even so, Appellant argues that section 271.005(a) is a “waiver” of the County’s

immunity as to a breach of contract claim.

abandoned its argument that under section 271.152, the County waived immunity
for Appellant’s breach of contract claim. Under section 271.152 of the Texas Local
Government Code, the Legislature has expressly waived governmental immunity for
certain contracts with a local governmental entity. See Tex. Loc. Gov’t Code Ann.
§ 271.152. However, that subsection expressly does not apply to counties. See id.
§ 271.151(3) (the definition of “local governmental entity” for purposes of the
subchapter does not include a county). On appeal, Appellant also abandoned its
argument that, as for its negligence, fraud, and conversion claims, the trial court
needed to determine whether the building of election carts is a governmental or
proprietary function and its argument that the TTCA’s list of governmental functions
for which the Act provides immunity is inapplicable here.
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In determining whether a statute waives sovereign immunity, a statute shall

not be construed as a waiver of sovereign immunity unless the waiver is set forth in

“clear and unambiguous” language. PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d

296, 302 (Tex. 2019) (citing Tex. Gov’t Code Ann. § 311.034; Tooke, 197 S.W.3d

at 328-29). We interpret statutory waivers of sovereign immunity narrowly. Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We interpret

statutory waivers of immunity narrowly[.]”); Taylor, 106 S.W.3d at 697 (any waiver

of immunity should be construed in favor of retaining immunity)).

While it is clear Section 271.005(a) authorizes governmental agencies,

including counties, to enter into contracts for personal property, there is no language

within that section that waives governmental immunity from suit pertaining to such

contracts. See Tex. Loc. Gov’t Code Ann. § 271.005(a). When determining whether

a statute affords a clear and unambiguous waiver of immunity absent express

language to that effect, we examine the statute to determine if “the provision in

question would be meaningless unless immunity were waived.” See Taylor, 106

S.W.3d at 697. Here, section 271.005(a) would not be meaningless unless the

governmental agency’s immunity was waived. See Travis Cent. Appraisal Dist. v.

Norman, 342 S.W.3d 54, 58 (Tex. 2011) (The clear and unambiguous standard is

never applied “mechanically to defeat the law’s purpose or the Legislature’s intent.”)

(citing Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000)).

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Accordingly, we find that section 271.005(a) does not provide a valid waiver of the

County’s immunity as to Appellant’s breach of contract claim.

Next, with respect to the Plaintiff’s reliance on Section 262.007(a) of the

Texas Local Government Code, an argument the Plaintiff did not make in the trial

court, that section provides, in relevant part, that “[a] county that is a party to a

written contract for engineering, architectural, or construction services or for goods

related to engineering, architectural, or construction services may sue or be sued . . .

on a claim arising under the contract.” Tex. Loc. Gov’t Code Ann. § 262.007(a).

According to Appellant, the statute provides an express waiver of immunity which

applies here because Appellant “contracted to construct, build and engineer voting

carts for the County.”

Assuming without deciding that Plaintiff preserved this argument in the trial

court, to plead a waiver of immunity, a plaintiff may not merely reference a statute’s

elements, but must allege a violation of the statute by pleading facts that state a claim

under the statute. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022).

Appellant’s pleadings fail to allege facts that state a claim under section 262.007(a),

and the facts plaintiff alleged would not fit within the limited waiver provided in

section 262.007(a). See Tex. Loc. Gov’t Code Ann. § 262.007(a); see also Wilson

Cnty. v. Thomas, No. 04-06-00675-CV, 2007 Tex. App. LEXIS 6244, at *10 (Tex.

App.—San Antonio, Aug. 8, 2007, no pet.) (mem. op.) (describing section

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262.007(a) as a “limited waiver of immunity from suit”). Here, there is nothing

alleged that indicates the contract was for “goods related to engineering,

architectural, or construction services” within the purview of section 262.007(a). See

Tex. Loc. Gov’t Code Ann. § 262.007(a). Accordingly, Appellant has failed to

demonstrate that section 262.007(a) applies to this agreement.

As for Appellant’s conversion claim, on appeal Appellant abandons its

argument in its Response to the plea to the jurisdiction that the TTCA waived the

County’s immunity. For the first time on appeal, Appellant argues that its conversion

claim is really a takings claim in violation of Article I, section 17 of the Texas

Constitution. That section provides that “[n]o person’s property shall be taken,

damaged or destroyed for or applied to public use without adequate compensation

being made, unless by the consent of such person[.]” Tex. Const. art. I, § 17.

According to Appellant’s brief, the County took the Appellant’s goods and material

from Appellant without any compensation and the Texas Constitution’s Takings

Clause waives the County’s immunity for Appellant’s conversion claims.

Neither sovereign immunity nor governmental immunity shield a

governmental entity from a claim based on an unconstitutional taking of property.

Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 390 (Tex. 2011); Gen.

Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The

Texas Supreme Court has outlined a three-part test to identify a constitutional taking:

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(1) the governmental entity intentionally performed certain acts, (2) that resulted in

a “taking” of property, (3) for public use. See Little-Tex, 39 S.W.3d at 598; see also

Sawyer Tr., 354 S.W.3d at 390-91. “To meet the first prong, the [governmental

entity] must have the requisite intent to be acting under its eminent domain powers,

rather than merely withholding property or money in a contract dispute.” Smith v.

Lutz, 149 S.W.3d 752, 760 (Tex. App.—Austin 2004, no pet.). In a contractual

situation, when acting within a color of right to take or withhold property, the

governmental entity is acting like a private citizen and not under any sovereign

powers. Little-Tex, 39 S.W.3d at 599; Lutz, 149 S.W.3d at 760. Courts have held that

in such a circumstance, the governmental entity only has an intent to act within the

scope of the contract and does not have the requisite intent to take under its eminent

domain powers. Little-Tex, 39 S.W.3d at 599; Lutz, 149 S.W.3d at 760-61. Here, not

only did Appellant’s pleadings in the trial court fail to reference any constitutional

provisions and fail to assert a takings claim that waived the County’s immunity, but

also there is nothing indicating that the County was acting under its eminent domain

powers with respect to the alleged contract. See id. Accordingly, Appellant has not

established a valid waiver of the County’s immunity for Appellant’s conversion

claim, nor has it asserted a takings claim.

Because on appeal Appellant only challenges the trial court’s grant of the plea

to the jurisdiction as to Appellant’s breach of contract and conversion claims and we

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have determined that Appellant has failed to demonstrate a valid waiver as to these

claims, we overrule Appellant’s first issue.

In issue two, Appellant argues in the alternative that if its pleadings are

insufficient to demonstrate, but do not affirmatively negate, subject matter

jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend

before dismissing. Appellant argues that it should be allowed to amend its petition

to replead its conversion claim as a takings claim under the Texas Constitution if

appropriate and to make claims for breach of contract under section 262.007(a) and

other subparts of Chapter 271 of the Texas Local Government Code.

When a plaintiff fails to plead facts to establish jurisdiction, but the petition

does not demonstrate incurable defects, the issue is one of pleading sufficiency and

the plaintiff should be afforded the opportunity to amend. See Miranda, 133 S.W.3d

at 226-27; see also Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.

2007); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If, however,

the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiff an opportunity to amend.

Brown, 80 S.W.3d at 555. If the allegations in a plaintiff’s pleadings neither

affirmatively demonstrate nor negate jurisdiction, the issue is considered a matter of

pleading sufficiency, and the plaintiff should be given an opportunity to amend. City

of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

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We have already concluded that neither of the statutes nor the constitutional

provision relied upon by Appellant on appeal waive the County’s immunity. As

such, allowing Appellant the opportunity to replead to specifically assert a waiver

under these statutes would be futile. We overrule issue two.

Having overruled both issues, we affirm the trial court’s order granting the

plea to the jurisdiction and dismissing the case for lack of jurisdiction.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on August 9, 2024
Opinion Delivered August 29, 2024

Before Golemon, C.J., Johnson and Wright, JJ.

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