Chapter 271 of the Texas Local Government Code contains an express waiver of governmental immunity for breach of contract claims arising from qualifying contracts brought against governmental entities. See Tex. Local Govt Code § 271.152. Some governmental entities appear to be under the incorrect assumption that a plea to the jurisdiction is a proper vehicle to challenge the merits of the underlying breach-of-contract claim. It is not. This mistake can be expensive for the parties because, unlike a summary judgment motion, even if a plea is wholly unmeritorious, the trial court’s denial of the plea entitles the governmental entity to an interlocutory appeal that automatically stays the trial court proceedings until the appeal is resolved. See Tex. Civ. Prac. & Rem. Code § 51.014 (a)(8), (b). This article is written to correct this mistaken assumption.
When a plaintiff alleges “facts that affirmatively demonstrate the court’s jurisdiction to hear the cause,” it meets its burden to show the court can adjudicate the claim. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In determining the sufficiency of the pleadings, a court is required to accept factual allegations as true and construe them in favor of the pleader. Id. at 226. In a plea to the jurisdiction, if a governmental entity attaches evidence to its plea demonstrating a jurisdictional element is negated, the burden shifts to a plaintiff to show a fact issue exists with respect to the negated jurisdictional element. Miranda at 227 (“we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue.”).
While the courts determine whether immunity exists, once they determine it exists, only the Texas Legislature can waive it. City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). When determining whether the Legislature intended to waive immunity, courts first look to the statutory language to which a plaintiff points in its pleading to identify the jurisdictional elements that are required to be supported with facts. When the Legislature speaks clearly, courts “have little difficulty recognizing the Legislature’s intent to waive immunity from suit” and simply apply the plain language of the statute to the facts alleged in the plaintiff’s petition. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-97 (Tex. 2003). Indeed, statutory language such as “sovereign immunity to suit is waived” is a clear and unambiguous expression of the Legislature’s intent to waive immunity. Id.
On the other hand, when Legislative intent is less than clear, courts must parse through the relevant statute to discern the parameters of the waiver, if any, and apply precedent to determine when immunity is waived and when it is not. See Taylor at 697 (in the absence of “magic words” that waive immunity “we have employed several aids to help guide our analysis in determining whether the Legislature has clearly and unambiguously waived sovereign immunity”); see also Tooke v. City of Mexia, 197 S.W.3d 325, 342 (Tex. 2006) (stating that phrases “sue and be sued” and “plead and be impleaded” do not constitute clear and unambiguous waivers of governmental immunity).
Sometimes, when the elements related to the immunity waiver and the underlying cause of action are the same, the jurisdictional and merit elements are said to “intertwine.” In such cases, a plaintiff must show fact issues exist as to the merits of a claim before jurisdiction can be invoked, which permits a court to consider evidence outside the pleadings. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (when “jurisdiction and the merits intertwine,” such as when “a statutory violation is necessary to establish an immunity waiver” a court may consider evidence outside the pleadings that goes to the merits of a claim); see, e.g., Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex. 2018) (“The TCHRA waives immunity from suit only for statutory violations, which means the trial court lacks subject-matter jurisdiction over the dispute absent some evidence the school district violated the TCHRA.”); see also Miranda, 133 S.W.3d at 225, 226 (“a governmental unit waives sovereign immunity under the recreational use statute and the Tort Claims Act only if it is grossly negligent. . . In this case, we address a plea to the jurisdiction in which undisputed evidence implicates both the subject matter jurisdiction of the court and the merits of the case.”).
However, jurisdiction and merits elements related to Chapter 271 contract cases do not “intertwine.” Consequently, a plaintiff does not have to show a fact issue exists with respect to the merits of the underlying breach of contract claim to defeat a plea to the jurisdiction. The Legislature’s intent to waive immunity for breach of contract claims arising from qualifying contracts is clear and unambiguous because it enacted an entire statute to do just that. See Tex. Local Govt Code § 271.152 (titled “Waiver of immunity to suit for certain claims.”); see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006) (“the Legislature intended to loosen the immunity bar so ‘that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.’”).
Chapter 271 therefore sets forth clear statutory jurisdictional elements that are separate and apart from the elements necessary to prove the underlying common-law breach of contract claim. This means that a plea that attaches evidence attacking only the merits of the breach-of-contract claim fails as a matter of law. See Zachry Constr. Corp. v. Port of Houston, Auth. of Harris Cnty, 449 S.W.3d 98, 109 (Tex. 2014) (Chapter 271 waiver “does not depend on the outcome” of the claim); Garland Independent Sch. District v. Reeder General Contractors, Inc., No. 05-22-00855-CV, 2024 WL 1208304, *8 (Tex. App.—Dallas Mar. 21, 2024, pet. denied) (failure to obtain change orders or modify contract go to the district’s “liability and do not address whether immunity has been waived”) (citing Zachry at 109); Romulus Group, Inc. v. City of Dallas, No. 05-16-00751-CV, 2017 WL 1684631, *6 (Tex. App.—Dallas May 2, 2017, pet. denied) (“the waiver of immunity is not dependent on compliance with section 271.154”); City of El Paso v. High Ridge Const., Inc., 442 S.W.3d 660, 672 (Tex. App.- El Paso, 2014, pet. denied) (city’s argument that claim for damages in excess of contractual cap without executed written amendment is “in reality an argument that the contract claim will fail on the merits. Such a claim does not deprive the trial court of jurisdiction to hear the claim.”).
Rather, to trigger the immunity waiver in Chapter 271, a plaintiff need only plead and prove the defendant is (1) a local governmental entity (2) authorized by statute or the Constitution to enter into contracts, and (3) a party to a written “contract subject to this subchapter.” Ben Bolt-Palito at 328 (relying on Tex. Local Govt Code § 271.152). The statute expressly defines “a contract subject to this subchapter” in relevant part as “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.” Tex. Loc. Govt Code §271.151 (2)(a). Moreover, a plaintiff is only entitled to recover an award expressly authorized by subsection 271.153, which describes the remedies available to a successful plaintiff. See Zachry at 109 (“the purpose of section 271.153 is to limit the amount due by a governmental agency on a contract once liability has been established, not to foreclose the determination of whether liability exists.”) (citing Kirby Lake Development, Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 840 (Tex. 2010)). Chapter 271 awards are limited to (1) “the balance due and owing” which includes “compensation for the increased costs to perform the work” caused by owner delays; (2) “amount owed for additional work the contractor is directed to perform . . . in connection with the contract,” (3) attorney’s fees; and (4) interest.
Since Chapter 271 sets out all the relevant jurisdictional elements which are untethered to the elements of the underlying breach of contract claim, a plea to the jurisdiction is not a proper vehicle to challenge the merits of the underlying breach of contract claim.
Jul. 11, 2025
Ann “Ana” Marie Jordan
ajordan@carterarnett.com