Robstown Independent School District v. Jesus Alejandro

NUMBER 13-23-00406-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ROBSTOWN INDEPENDENT

SCHOOL DISTRICT, Appellant,

v.

JESUS ALEJANDRO, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 3

OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca

Memorandum Opinion by Justice Fonseca

In this appeal, appellant Robstown Independent School District (RISD) contends

that the trial court erred by denying its plea to the jurisdiction seeking to dismiss a breach

of contract suit filed by appellee Jesus Alejandro. By one issue, RISD argues that

Alejandro failed to establish a waiver of its governmental immunity to suit because the

contract at issue was not “properly executed” by RISD under Chapter 271 of the Texas

Local Government Code. See TEX. LOC. GOV’T CODE ANN. § 271.151(2). We affirm.

I. BACKGROUND

Alejandro began providing business consulting services to RISD in July of 2012.

On October 16, 2012, Alejandro entered into a “Consulting Agreement” under which he

agreed to “[d]irect and manage the operation of all financial and business affairs of [RISD]

including accounting, payroll, purchasing, risk management[,] and budget” from

November 1, 2012, to January 31, 2013, for total compensation of $28,500, payable semi-

monthly. The agreement stated that the consulting relationship would terminate upon the

expiration of the contractual term, upon Alejandro’s death or disability, or upon written

notice of his termination for “just cause,”1 at which point Alejandro would be entitled only

to the “compensation earned as of the date of termination.” If the relationship was

terminated for any other reason, Alejandro would be entitled to receive the full term’s

compensation. The agreement was signed by Alejandro and RISD’s then-superintendent

Leobardo Cano.

On November 21, 2012, RISD’s acting superintendent Roel Lara2 notified

1 The agreement defined “just cause” as

(a) the failure or inability for any reason (other than illness or incapacity) of [Alejandro] to

devote the required time set forth in Agreement to the business of [RISD]; (b) the

commission by [Alejandro] of any act involving willful misconduct, moral turpitude or gross

negligence, or the commission by [Alejandro] of any act or the suffering by [Alejandro]

incapable of performing his duties under this Agreement [sic]; (c) any material breach by

[Alejandro] of any of the terms of, or the failure to perform any covenant contained in this

Agreement; or (d) a material violation by [Alejandro] of policies established by [RISD] with

respect to the operation of its business [] affairs.

2 As set out by the Austin Court of Appeals in an unrelated case, Cano was placed on paid

administrative leave on November 6, 2012, and was terminated in December of 2012, due to various

misconduct findings. See Morath v. Cano, No. 03-15-00799-CV, 2017 WL 3585252, at *1 (Tex. App.—

Austin Aug. 17, 2017, no pet.) (mem. op.).

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Alejandro that his consulting services would “no longer be needed.” In response,

Alejandro sent a letter to Lara claiming that his termination constituted a breach of the

consulting agreement and requesting the remainder of the $28,500 payment. Lara

replied, explaining in a November 21, 2012 letter that RISD would not pay Alejandro the

full amount because the October consulting agreement “violated Board Policy CH(Local)

in effect at that time” and was therefore unenforceable. Specifically, Lara claimed that

Alejandro had originally agreed to provide consulting services to RISD in July of 2012 for

$500 per day; that RISD had already paid Alejandro over $40,000 under the July

arrangement as of October 25; and that the “addition of another $28,500 caused the total

contractual obligation to exceed” the superintendent’s authority to enter into contracts

without board approval.3 Lara’s letter also stated that, even if the agreement was valid,

RISD “would easily be able to substantiate just cause as the grounds for termination.”

Alejandro then filed this suit against RISD. In his live petition filed on September

7, 2022, Alejandro alleged that the October 16, 2012 consulting agreement was valid

because Cano was authorized to enter into the contract on RISD’s behalf. He further

alleged that he did not commit any act which would give rise to “just cause” for his

termination. He claimed that RISD’s governmental immunity to suit was waived under

Texas Local Government Code § 271.153, and he requested $22,500 in actual damages

along with attorney’s fees and interest. RISD filed a plea to the jurisdiction arguing that it

retained governmental immunity to Alejandro’s suit for the reasons set forth in Lara’s

3 Cano’s termination was based in part on a finding by RISD that he violated board policy by

“committing [RISD] to two contracts [with Alejandro] without obtaining required Board approval.” Id. at *2 &

n.4. The Austin Court of Appeals did not analyze or evaluate this finding, but rather based its decision on

other grounds. See id. at *2–5 (finding that a contractual “Early Termination” provision did not control and,

on that basis, reinstating the Commissioner of Education’s order affirming the denial of Cano’s grievance).

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letter—i.e., because the October consulting agreement “was outside the authority of the

superintendent to execute without approval from RISD’s Board of Trustees.” RISD

attached a copy of a memorandum dated July 9, 2012, signed by Cano, in which

Alejandro agreed to “[r]eview all existing budget data and prepare and develop the 2012–

2013 RISD Budget and related matters” for compensation of $500 per day. RISD also

attached an affidavit by its human resources director stating in part that “[f]or the period

through his last day on November 15, 2012, [Alejandro] was paid a total of $47,750.00.”

Alejandro filed a response to the plea, and RISD filed a reply.

After a hearing, the trial court denied the plea by order dated August 23, 2023, and

this accelerated interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (providing for interlocutory appeal of an order denying a plea to the

jurisdiction by a governmental unit); TEX. GOV’T CODE ANN. § 101.001(3)(B) (defining

“governmental unit” to include a school district).4

II. PLEA TO THE JURISDICTION

A. Standard of Review

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a

cause of action without regard to whether the claims asserted have merit.” Bland Indep.

4 Following the filing of briefs in this appeal, RISD notified this Court that Alejandro died on May 10,

2024, and it asserted that “this Court may not proceed with the appeal without questioning whether those

purporting to represent the deceased party have the authority to do so.” However, because Alejandro’s

counsel filed his brief prior to Alejandro’s death, there is no dispute that counsel had the authority to

represent Alejandro for purposes of this appeal. Accordingly, we proceed to adjudicate the appeal as if

Alejandro were still alive. See TEX. R. APP. P. 7.1(a)(1) (“If a party to a civil case dies after the trial court

renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected,

and the appellate court will proceed to adjudicate the appeal as if all parties were alive.”); cf. Murphy v.

Murphy, 21 S.W.3d 797, 798 (Tex. App.—Houston [1st Dist.] 2000, order) (noting that an appellant died

and, because her attorneys joined in a motion to dispose of the appeal after her death, ordering that her

attorneys provide documentation showing (1) their authority to represent the appellant’s estate, and (2) that

the estate representative adopted or ratified the motion).

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Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s

subject matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Because subject matter jurisdiction is a

question of law, we review the trial court’s ruling on a plea to the jurisdiction de novo. Id.

A plaintiff has the initial burden to plead facts affirmatively demonstrating the trial

court’s jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019).

“When a defendant challenges jurisdiction, a court ‘is not required to look solely to the

pleadings but may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised.’” Id. (quoting Bland Indep. Sch. Dist., 34 S.W.3d at 555); see

Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022). This is true even when the

jurisdictional issue intertwines with the merits of the case. Town of Shady Shores, 590

S.W.3d at 550.

When jurisdictional facts are challenged, our standard of review mirrors that of a

summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 805 (Tex.

2018). We must take as true all evidence favorable to the nonmovant, indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor, and disregard

contrary evidence if a reasonable factfinder could do so. See id. at 771; Miranda, 133

S.W.3d at 228. If the evidence raises a fact issue regarding jurisdiction, the plea cannot

be granted, and a factfinder must resolve the issue. Miranda, 133 S.W.3d at 227–28. On

the other hand, if the evidence is undisputed or fails to raise a fact issue, the plea must

be determined as a matter of law. Id. at 228; Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 635 (Tex. 2012).

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B. Applicable Law

1. Sovereign Immunity

The doctrine of sovereign immunity holds that “no state can be sued in her own

courts without her consent, and then only in the manner indicated by that consent.” Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,

769 (1847)); see Nevada v. Hall, 440 U.S. 410, 414 (1979) (“The immunity of a truly

independent sovereign from suit in its own courts has been enjoyed as a matter of

absolute right for centuries. Only the sovereign’s own consent could qualify the absolute

character of that immunity.”). Thus, unless waived by the legislature, sovereign immunity

deprives a Texas court of subject matter jurisdiction over any lawsuit against a

governmental unit such as RISD. See El Paso Educ. Initiative, Inc. v. Amex Props., LLC,

602 S.W.3d 521, 526 (Tex. 2020); Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d

384, 388 (Tex. 2011); see also TEX. GOV’T CODE ANN. § 311.034 (“In order to preserve

the legislature’s interest in managing state fiscal matters through the appropriations

process, a statute shall not be construed as a waiver of sovereign immunity unless the

waiver is effected by clear and unambiguous language.”).

2. Local Government Code Chapter 271

Chapter 271, subchapter I of the Texas Local Government Code clearly and

unambiguously waives sovereign immunity for certain contract claims against local

governmental entities. See TEX. LOC. GOV’T CODE ANN. §§ 271.151–.160. In particular,

§ 271.152 provides that 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

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breach of the contract, subject to the terms and conditions of this subchapter.” Id.

§ 271.152. As relevant here, a “contract subject to this subchapter” is “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.”

Id. § 271.151(2)(A).

C. Analysis

The issue in this case is whether the contract at issue was “properly executed on

behalf” of RISD as required by Chapter 271. See id. “[J]ust as a government official cannot

bind the government to a contract based on apparent authority, an agent acting on behalf

of a [governmental unit] cannot bind it in a way that exceeds its statutory grant of authority

to enter into contracts.” El Paso Educ. Initiative, 602 S.W.3d at 533 (citing State ex rel.

Dep’t of Crim. Just. v. VitaPro Foods, Inc., 8 S.W.3d 316, 322 (Tex. 1999) (“Only persons

having actual authority to act on behalf of the State can bind the State in contract.”)).

Thus, a contract is “properly executed” only “when it is executed in accord with the

statutes and regulations prescribing that authority.” Id. at 532 (noting that “proper” means

“[a]ppropriate, suitable, right, fit, or correct; according to the rules”).

Under the education code, the board of trustees of an independent school district

“may enter into contracts as authorized under this code or other law and delegate

contractual authority to the superintendent as appropriate.” TEX. EDUC. CODE. ANN.

§ 11.1511(c)(4). At the time Alejandro began providing services to RISD, the district’s

local purchasing and acquisition policy (referred to as “CH(Local)”) stated:

The Board delegates to the Superintendent or designee the authority to

make budgeted purchases for goods or services. However, any single,

budgeted purchase of goods or services that costs $10,000.00 or more,

regardless of whether the goods or services are competitively purchased,

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shall require Board approval before a transaction may take place.

Prior to the October 16, 2012 consulting agreement, the policy was amended to state that

“any single, budgeted purchase of goods or services that costs $50,000.00 or more”

required board approval.

In its plea and on appeal, RISD argued that Cano violated this policy by executing

the October 16, 2012 agreement because “the total contractual obligation was more than

$50,000 in the aggregate for a 12-month period,” and the agreement was not approved

by the board. Thus, RISD asserts that the agreement was not “properly executed” on its

behalf and does not support a waiver of immunity.

This assertion depends on RISD’s contention that the amounts paid and due under

the July and October agreements should be aggregated for purposes of determining

Cano’s authority. In support thereof, RISD points to sections of the education and

government codes which it claims demonstrate that “governmental employees/officers

are precluded from breaking what would ordinarily be a single contract into multiple

agreements to avoid a particular spending limit.” See TEX. EDUC. CODE ANN. § 44.031(a),

(b) (requiring “all school district contracts for the purchase of goods and services, except

contracts for the purchase of produce or vehicle fuel, valued at $50,000 or more in the

aggregate for each 12-month period” to be made by one of several enumerated

purchasing methods); id. § 44.032(b) (providing that it is a Class B misdemeanor for an

“agent of a school district” to authorize, with criminal negligence, “separate, sequential,

or component purchases to avoid the requirements of [§] 44.031(a) or (b)”); TEX. GOV’T

CODE ANN. § 2254.035 (“(a) A state agency may not divide a consulting services contract

into more than one contract to avoid the requirements of this subchapter. (b) This section

applies to all consulting services contracts, including renewals, amendments, and

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extensions of consulting services contracts.”).5 RISD argues that “the framework of these

laws requires that separate, sequential, or component purchases of services ordered or

purchased from the same provider by the same officer or institution are treated as if part

of a single purchase and a single contract.” It contends “the Agreements must, in effect,

be construed together” because the October agreement “was undeniably a continuation

of the same services at the same compensation of $500 per day” as agreed to in July.

In his response to the plea in the trial court, Alejandro simply argued that the

October 16, 2012 agreement was within Cano’s authority to execute because “the total

amount due” under the contract was $28,500—i.e., “a sum well below” the limit set forth

in the CH(Local) policy. He further argued that the evidence attached to RISD’s plea

should be struck on hearsay and other grounds.

On appeal, Alejandro argues that, when “selecting a financial consultant, a school

district . . . may choose to comply with either Texas Education Code [§] 44.031(a) or

[Texas] Government Code[ §] 2254.003.” See TEX. EDUC. CODE ANN. § 44.031(a); id.

§ 44.031(f) (“A school district may, at its option, contract for professional services

rendered by a financial consultant . . . in the manner provided by [§] 2254.003,

Government Code, in lieu of the methods provided by this section.”); TEX. GOV’T CODE

ANN. § 2254.003(a) (requiring governmental entities to “select a provider of professional

services” or “award a contract for the services . . . (1) on the basis of demonstrated

5 RISD also cites local government code § 271.029, which is applicable to school districts and which

it claims is “like [§] 44.032 of the Texas Education Code” in that it “prescribes penalties for an officer or

employee of a governmental entity who makes or authorizes separate, sequential, or component purchases

to avoid the statute’s requirements.” In fact, § 271.029 applies only when multiple purchases are made “to

avoid the competitive bidding requirements of the statute that requires a contract described by [§] 271.024

to be awarded on the basis of competitive bids.” TEX. LOC. GOV’T CODE ANN. § 271.029(a). There is no

suggestion that that multiple consulting agreements with Alejandro were made for that reason. This statute

is not applicable to this case.

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competence and qualifications to perform the services; and (2) for a fair and reasonable

price”). He further contends that, although “the only complaint raised by RISD purportedly

pertains to the alleged failure to comply with [§] 44.031,” Cano “chose not to adopt the

provisions” of that statute pursuant to the authority validly delegated to him by the board.6

Alejandro misunderstands RISD’s argument. The question is not whether the

district complied with statutorily-required purchasing procedures, such as those set forth

in the education and government codes, before entering into the consulting agreement

with him. The question is whether Cano had the authority, as delegated by the board, to

execute this particular contract on the district’s behalf. Contrary to Alejandro’s claim, RISD

has never complained about the “alleged failure to comply with [§] 44.031” of the

education code—it has consistently asserted only that the contract was not “properly

executed” on its behalf because Cano lacked the authority to bind it to this type of contract

without board approval.

That said, we conclude RISD has failed to establish that Cano lacked that

authority. The CH(Local) policy explicitly and broadly delegated to the superintendent “the

authority to make budgeted purchases for goods or services.” There is no dispute that

Cano was RISD’s superintendent on October 16, 2012, nor is there any dispute that the

payments to Alejandro contemplated in the agreement constituted “budgeted purchases

6 In his brief, Alejandro also argues that RISD’s live answer in the trial court failed to comply with

Texas Rule of Civil Procedure 93(7) because it was verified by the “newly appointed RISD superintendent”

who “would have no knowledge of the circumstances leading up to the execution of Alejandro’s contract

with RISD.” See TEX. R. CIV. P. 93(7) (providing that a pleading alleging “[d]enial of the execution by himself

or by his authority of any instrument in writing, upon which any pleading is founded” must be verified by

affidavit, and “[i]n the absence of such a sworn plea, the instrument shall be received in evidence as fully

proved”). We note that RISD does not deny that Cano personally signed the agreement, nor did it dispute

that the version of the agreement offered into evidence was authentic and admissible. In any event, even

assuming Rule 93(7) applies to RISD’s defense, the affidavit by the “newly appointed” superintendent is

valid on its face and complies with the rule.

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for . . . services.” See TEX. EDUC. CODE ANN. § 44.006 (“Public funds of the school district

may not be spent in any manner other than as provided for in the budget adopted by the

board of trustees . . . .”); see also Edcouch-Elsa Indep. Sch. Dist. v. Comprehensive

Training Ctr., LLC, No. 13-23-00108-CV, 2024 WL 3708934, at *3 (Tex. App.—Corpus

Christi–Edinburg Aug. 8, 2024, pet. filed) (mem. op.) (involving similar policy and

concluding no waiver of immunity under Chapter 271 because purchases were not

“budgeted”). The policy stated that “any single, budgeted purchase . . . that costs $50,000

or more” requires board pre-approval, but it is undisputed that Cano made no “single”

purchase of $50,000 or more. Instead, he made one agreement to purchase Alejandro’s

services on July 9, 2012, for $500 per day over an unspecified term; and he made a

second purchase on October 16, 2012, for $28,500 over three months. The October

agreement—the only one at issue in Alejandro’s breach of contract claim—was a “single”

purchase costing less than $50,000. Therefore, under the plain language of the policy,

Cano was authorized to enter into the October 16, 2012 agreement.

RISD urges that the amounts paid and payable under both contracts must be

aggregated for purposes of determining Cano’s authority, but the authorities it cites in

support of that proposition are unavailing. Education code § 44.031 provides that school

district purchases “valued at $50,000 or more in the aggregate for each 12-month period”

must generally be made by one of several specified methods, such as competitive bidding

or a request for proposals. See TEX. EDUC. CODE ANN. § 44.031(a). And the government

code forbids any “state agency” from “divid[ing] a consulting services contract into more

than one contract to avoid” its requirements. See TEX. GOV’T CODE ANN. § 2254.035. But

these statutes, by their own terms, do not apply in this case. See TEX. EDUC. CODE ANN.

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§ 44.031(f) (“This section does not apply to a contract for professional services

rendered . . . .”); TEX. GOV’T CODE ANN. § 2151.002 (defining “state agency” to exclude

political subdivisions such as school districts).

To the extent the cited statutes may be helpful in this case, they provide examples

of language that the RISD board could have adopted in the CH(Local) policy which would

have unequivocally prohibited Cano from entering into these two contracts without board

approval. Specifically, the policy could have said that “any budgeted purchase of goods

or services valued at $50,000 or more in the aggregate for each 12-month period shall

require Board approval.” Alternatively, it could have said that “separate, sequential, or

component purchases” made to avoid the $50,000 limit shall be considered one

purchase. The fact that the drafters of the policy declined to employ this language, but

instead confined the restriction on the superintendent’s authority to “single” purchases of

$50,000 or more, unambiguously indicates that they did not intend for multiple distinct

purchases to be aggregated in this situation. We will not read into the policy language

which was conspicuously omitted from it.

It is also noteworthy that RISD has not produced evidence demonstrating that the

two contracts constituted a “single . . . purchase” under the circumstances. Instead, its

human resources director recognized in her affidavit that the October 16, 2012 agreement

constituted “another contract” with Alejandro “that provided he would continue performing

the same services for the District through January 31, 2013” (emphasis added). RISD

cites no authority, and we find none, providing that two separate contracts must be

considered a “single” purchase under the policy merely because, as it alleges, the second

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was “a continuation of the same services at the same compensation” as the first.7

For the foregoing reasons, Alejandro satisfied his initial burden to plead facts

affirmatively demonstrating the trial court’s jurisdiction. See Town of Shady Shores, 590

S.W.3d at 550. And, resolving all doubts in Alejandro’s favor, see Alamo Heights Indep.

Sch. Dist., 544 S.W.3d at 771, we conclude RISD failed to establish the trial court’s lack

of jurisdiction as a matter of law. See Miranda, 133 S.W.3d at 228. Therefore, the trial

court did not err in denying RISD’s plea to the jurisdiction. RISD’s issue on appeal is

overruled.

III. CONCLUSION

The trial court’s judgment is affirmed.

YSMAEL D. FONSECA

Justice

Delivered and filed on the

20th day of February, 2025.

7 The parties do not cite any authority establishing the proper standard of review for the

interpretation of a school board policy. We observe that a school board is generally “the ultimate interpreter

of its policy,” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex. 2000) (noting that “the

Board retains the authority to make the ultimate decision of whether the facts demonstrate that board policy

was violated”), and RISD has apparently already determined that the October 16, 2012 consulting

agreement violated its policy. See Morath, 2017 WL 3585252, at *2 & n.4. But a school board’s discretion

in interpreting its own policies is not unlimited—instead, it is “subject to the limits established by the

Legislature in its provisions for administrative and judicial review.” Montgomery Indep. Sch. Dist., 34 S.W.3d

at 565. Ordinarily, an administrative decision may be reversed on judicial review for erroneous conclusions

of law. See TEX. EDUC CODE ANN. § 21.307(f). To the extent this law applies here, RISD’s prior legal

conclusion that the October 16, 2012 consulting agreement violated its policy is not controlling because it

is erroneous for the reasons set forth above.

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