applying equitable defenses to governmental entities “invades the domain of the Legislature and cuts against the very nature of sovereign immunity.”
How later courts described this case
- applying equitable defenses to governmental entities “invades the domain of the Legislature and cuts against the very nature of sovereign immunity.”
- “The rule expressio unius est exclusio alterius is a sound one, frequently applied in the construction of statutes.”
- “We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous.”
- “We conclude that the Act does not waive immunity from suit on a claim for damages not recoverable under Section 271.153.”
Written by the judges who cited it.
The opinion
ACCEPTED
04-25-00316-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/23/2025 8:51 AM
NO. 04-25-00316-CV
In the FILED IN
Fourth Court of Appeals SAN ANTONIO, TEXAS
4th COURT OF APPEALS
6/23/2025 8:51:41 AM
San Antonio, Texas CAITLIN A. MCCAMISH
Clerk of Court
______________________________________________
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 83rd Judicial District Court
Val Verde County, Texas, No. 2023-0279-CIV
The Honorable Robert E. Cadena, Presiding Judge
__________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
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 Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
PARTIES TO THE TRIAL COURT’S ORDER:
APPELLANT: Texas Association of School Boards Risk
Management Fund
APPELLEES: Southwest Texas Junior College
TRIAL AND APPELLATE COUNSEL:
FOR APPELLANTS: 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
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
State Bar No. 24056222
cmrodriguez@rampagelaw.com
Lori Hanson
State Bar No. 21128500
lwhanson@rampagelaw.com
Denton Navarro Rodriguez Bernal Santee &
Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
i
FOR APPELLEES: Preston J. Dugas III
State Bar No. 24050189
pdugas@dcclawfirm.com
Vincent P. Circelli
State Bar No. 24058804
vcircelli@dcclawfirm.com
Andrew D. Spadoni
State Bar No. 24109198
aspadoni@dcclawfirm.com
DUGAS & CIRCELLI, PLLC
4800 Bryant Irvin Ct.,
Fort Worth, Texas 76107
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. ISSUE PRESENTED ........................................................................ 5
III. STATEMENT OF FACTS ................................................................. 6
A. Governmental Self-Insurance Pools. ....................................... 6
B. The Nature of the Fund ........................................................... 9
C. The Terms of the District’s Self-Insurance Coverage
Documents. ............................................................................. 11
D. The College Self-Insurance Claim. ........................................ 13
E. The College Lawsuit Against the Fund and the
Trial Court Proceedings. ........................................................ 14
IV. SUMMARY OF THE ARGUMENT ................................................ 17
V. STANDARD OF REVIEW .............................................................. 21
VI. ARGUMENT .................................................................................... 23
A. The Fund is a Governmental Entity with Immunity
from Suit. ................................................................................ 23
B. The Legislature Granted a Limited Immunity Waiver for
Claims to Enforce Express Contract Terms. ........................ 24
C. The Act Does Not Waive the Fund’s Governmental
Immunity from Certain of the College’s Claims. .................. 25
iii
1. No Waiver Exists of the Fund’s Immunity from the
College’s Consequential Damages Claims ................... 27
2. No Waiver Exists of the Fund’s Immunity from the
College’s Equitable Claims that Express Terms of the
Parties’ Written Agreement are Waived,
Unconscionable, or Void ............................................... 28
a. Governmental Entities Historically are Immune
from Equitable Defenses Such as Waiver and
Estoppel ............................................................... 29
b. Zachry Broadly Disapproved the Principle that a
Court Should Not “Parse” the Pleadings to
Determine Whether Asserted Claims, Damages,
and Remedies Fall Within the Scope of Sections
271.152 and 271.153. ........................................... 30
c. No Statutory Waiver of Immunity Exists for
“Subordinate” Equitable Issues .......................... 33
d. Hays Street Bridge Restoration Group v. City of
San Antonio Does Not Apply to the Version of the
Act at Issue and Does Not Establish a Waiver of
Immunity for Other Forms of Equitable Relief
that the Legislature Did Not Include in the
Current Version of the Act .................................. 34
e. Section 271.155 does not grant an immunity
waiver for the College’s Equitable Claims ......... 37
f. The College Asserts the Equitable Doctrines of
Waiver and Unconscionability Offensively, Not
Defensively ........................................................... 38
g. The College Adduced No Jurisdictional
Evidence of a Viable Waiver or Unconscionability
Claim .................................................................... 40
VII. PRAYER........................................................................................... 42
iv
APPENDIX
App. A - Order Denying the Fund's Jurisdiction Plea (CR1569)
App. B - Order Granting the College's MSJ (CR1570)
App. C - Property Coverage Documents
App. D - The Local Government Contract Claims Act, Tex.
Loc. Gov't Code §§ 271.151, et seq. (excerpts)
App. E - Texas Government Code (excerpts)
App. F - Amended Notice of Non-Suit of Certain Claims with
Prejudice
App. G - The Fund's Consent to Lifting of Tex. Civ. Prac. &
Rem. Code § 51.014(b) Stay for Limited Purpose
v
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) ........................................................... 10, 23
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ............................................................. 22, 27
City of Galveston v. State,
217 S.W.3d 466 (Tex. 2007) ................................................................. 27
City of Houston v. Jackson,
192 S.W.3d 764 (Tex. 2006) ........................................................... 22, 34
City of Houston v. Swinerton Builders, Inc.,
233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) ....................................................................................................... 29
City of Mesquite v. PKG Contracting, Inc.,
263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied) ................. 31, 32
City of S. El Monte v. So. Cal. Joint Powers Ins. Auth.,
45 Cal. Rptr. 2d 729 (Cal. Ct. App. 1995) ............................................. 8
City of San Antonio v. Maspero,
640 S.W.3d 523 (Tex. 2022) ................................................................. 23
Coffman v. Scott Wetzel Servs.,
908 S.W.2d 516 (Tex. App.—Fort Worth 1995, no writ) ................ 8, 10
DART v. Whitley,
104 S.W.3d 540 (Tex. 2003) ........................................................... 21, 24
Enterprise Leasing Co. of Houston v. HCTRA,
356 S.W.3d 85 (Tex. App.—Houston [1st Dist.] 2011, no
pet.) ................................................................................................. 30, 38
vi
In re FirstMerit Bank, N.A.,
52 S.W.3d 749 (Tex. 2001) ................................................................... 42
Furmanite Worldwide, Inc. v. NextCorp, Ltd.,
339 S.W.3d 326 (Tex. App.—Dallas 2011, no pet.) ............................. 29
H & H Sand & Gravel, Inc. v. City of Corpus Christi,
No. 13-06-00677-CV, 2007 Tex. App. LEXIS 8878 (Tex.
App.—Corpus Christi Nov. 8, 2007, pet. denied) ......................... 30, 38
Harris County v. Crooker,
112 Tex. 450, 248 S.W. 652 (Tex. 1923) .............................................. 33
Hays Street Bridge Restoration Grp. v. City of San Antonio,
570 S.W.3d 697 (Tex. 2019) ..................................................... 34, 35, 36
Hill v. Tex. Council Risk Mgmt. Fund,
20 S.W.3d 209 (Tex. App.—Texarkana 2000, pet. denied)............. 8, 10
LeBlanc v. Lange,
365 S.W.3d 70 (Tex. App.—Houston [1st Dist.] 2011, no
pet.) ....................................................................................................... 42
Matzen v. McLane,
659 S.W.3d 381 (Tex. 2021) ........................................................... 40, 42
Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653 (Tex. 2008) ................................................................. 26
Nunn v. City of Vernon Emple. Benefit Tr.,
No. 07-05-0212-CV, 2006 Tex. App. LEXIS 1545 (Tex.
App.—Amarillo Feb. 27, 2006, no pet.) ................................................. 8
Port Freeport v. RLB Contracting Inc.,
369 S.W.3d 581 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied) .................................................................................................. 31
Prairie View A&M Univ. v. Chatha,
381 S.W.3d 500 (Tex. 2012) ........................................................... 30, 38
vii
Reata Constr. Corp. v. City of Dallas,
197 S.W.3d 371 (Tex. 2006) ........................................................... 22, 36
Roma ISD v. Ewing Const. Co.,
No. 04-12-00035-CV, 2012 Tex. App. LEXIS 5968 (Tex.
App.—San Antonio July 25, 2012, pet. denied) .................................. 31
San Jacinto River Auth. v. City of Conroe,
688 S.W.3d 124 (Tex. 2024) ................................................................. 24
Shields Ltd. P'ship v. Bradberry,
526 S.W.3d 471 (Tex. 2017) ................................................................. 41
Southwestern Bell Tel. Co. v. DeLanney,
809 S.W.2d 493 (Tex. 1991) ................................................................. 29
Statewide Ins. Fund v. Star Ins. Co.,
289 A.3d 448 (N.J. 2023)........................................................................ 7
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, 23
Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Colo. Indep. Sch.
Dist.,
660 S.W.3d 767 (Tex. App.—Eastland 2023, no pet.)....................37, 38
Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Greenville Indep.
Sch. Dist.,
No. 05-21-01012-CV, 2022 Tex. App. LEXIS 4952 (Tex.
App.—Dallas July 19, 2022, pet. denied) ....................................... 37, 39
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ......................................................... passim
Tooke v. City of Mexia,
197 S.W.3d 325 (Tex. 2006) ........................................................... 18, 38
Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692 (Tex. 2003) ................................................................. 22
viii
Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty.,
449 S.W.3d 98 (Tex. 2014) ........................................................... passim
Statutes
Cal. Gov’t Code § 990.8(c) ........................................................................... 8
Colo. Rev. Stat. Ann. § 24-10- 115.5(2) ...................................................... 8
Fla. Stat. Ann. § 624.4622 .......................................................................... 9
Ohio Rev. Code Ann. § 2744.081(E)(2)....................................................... 8
Or. Rev. Stat. Ann. § 731.036..................................................................... 8
Tex. Civ. Prac. & Rem. Code § 101.001 ................................................... 10
2013 Tex. Gen. Laws 1138 ....................................................................... 35
Tex. Gov’t Code
§ 311.034 ......................................................................................... 22, 38
§ 791.001 ................................................................................. 8, 9, 10, 23
§ 791.011(a) ............................................................................................ 9
§ 2259.001 ............................................................................................. 10
§ 2259.002 ............................................................................................. 23
§ 2259.031(a) .................................................................................... 9, 23
§ 2259.037 ......................................................................................... 8, 10
Tex. Loc. Gov’t Code
§ 271.151 ..................................................................................... 5, 18, 24
§ 271.152 ....................................................................................... passim
§ 271.153 ....................................................................................... passim
§ 271.155 .....................................................................................37, 38, 40
Other Authorities
Jason E. Doucette, Note, Wading into the Pool: Interlocal
Cooperation in Municipal Insurance and the State
Regulation of Public Entity Risk Sharing Pools—A
Survey, 8 CONN. INS. L.J. 533, 537 (2002) ..................................... 7, 9
ix
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Appellant 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
Appellant and Appellee any questions they may have about the record.
1
ABBREVIATIONS AND RECORD REFERENCES
Abbreviations
“Fund” refers to Appellant, Texas Association of School Boards Risk
Management Fund.
“College” refers to Appellee, Southwest Texas Junior College.
Record References
References to the Clerk’s Record are abbreviated “CR [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 additional self-insurance
benefits under a contract between it and other
members of the Fund, for property damage
allegedly sustained during a 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 to
equitably strike various provisions from the
parties’ contract and asserts that the Fund has
breached what remains of the contract by
failing to pay for additional repair and
replacement costs that the College claims to
have incurred, but did not timely complete.
Course of Proceedings: The College sued the Fund on November 17,
2023.1/ The Fund asserted its governmental
immunity from suit in a partial plea to the
jurisdiction on November 12, 2024
(“Jurisdictional Plea”).2/ The College amended
its pleadings the same day (“Amended
Petition”).3/ The Amended Petition included a
new immunity-barred claim against the Fund
for alleged breach of the duty of good faith and
fair dealing, seeks to enforce an equitably
modified version of the parties’ contract,
contains multiple allegations of fraud and bad
faith by the Fund, and seeks to recover
consequential damages from the Fund.4/
The Fund moved for summary judgment on both
1/ CR 7-26.
2/ CR 33-110.
3/ CR 111-123.
4/ CR 114-116, 119-121.
3
merits and jurisdictional grounds on March 26,
2025 (“Fund’s MSJ”). The Fund’s MSJ
reincorporated the grounds in its earlier
Jurisdictional Plea and also contested the
College’s new immunity-barred claims asserted
in the Amended Petition.5/ The College cross-
moved for summary judgment on certain of the
Fund’s affirmative defenses and the Fund’s
assertion of governmental immunity, (“College’s
MSJ”).6/ The Fund’s defensive response to the
College’s MSJ reincorporated the grounds in the
Fund’s Jurisdictional Plea and the updated
jurisdictional arguments in the Fund’s MSJ
contesting the College’s new immunity-barred
claims asserted in the Amended Petition.7/ The
College responded to the Fund’s Jurisdictional
Plea and filed a reply in support of the College’s
MSJ on May 12, 2025.8/
The trial court held a hearing on the Fund’s
Jurisdictional Plea and the College’s MSJ on
May 12, 2025.9/
Trial Court Disposition: The trial court denied the Fund’s Jurisdictional
Plea and granted the College’s MSJ,10/ thereby
implicitly denying the Fund’s jurisdictional
challenges asserted in both the Fund’s MSJ and
the Fund’s Response to the College’s MSJ. The
Fund timely appealed on May 19, 2025.11/
5/ CR 125-435.
6/ CR 436-974.
7/ CR 975-1241.
8/ CR 1248-1568.
9/ CR 1242-1247.
10/ CR 1569-1570.
11/ CR 1578-1581.
4
II.
ISSUES PRESENTED
TEX. LOC. GOV’T CODE §§ 271.151, et. seq. (the “Act”) created a
narrow immunity waiver to adjudicate claims for breach of written
contracts which contain the essential terms of the parties’ agreement. Id.
§§ 271.151(2)(A), 271.152. This limited immunity waiver is further
restricted to adjudication awards for defined types of damages (i.e., “the
balance due and owed by the local governmental entity under the
contract”) and a narrow category of equitable relief (i.e., specific
performance or injunctive relief for certain types of contracts not involved
here). The damages immunity waiver in the Act expressly excludes 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), (c) (emphasis added).
The College has sued the Fund asserting: (1) equitable claims of
waiver and unconscionability to disregard and/or strike express terms
from the parties’ contract and impose governmental liability on the Fund
beyond the express written terms that the Fund agreed to; and (2)
consequential damages claims unrelated to any “owner-caused delays or
acceleration.”
5
Issue 1: Did the trial court err by overruling the Fund’s
jurisdictional plea and jurisdictional defenses to the
College’s MSJ?
Issue 2: Does the Act’s narrow immunity waiver for defined
types of adjudication awards, which specifically
excludes consequential damages, authorize the
College to seek consequential damages from the Fund?
Issue 3: Does the Act’s narrow immunity waiver authorize the
College to adjudicate equitable claims of waiver and
unconscionability that seek to disregard essential
contract terms, or is the scope of the immunity waiver
limited to actions to enforce the essential contract
terms as written?
III.
STATEMENT OF FACTS
A. GOVERNMENTAL SELF-INSURANCE POOLS.
Governmental entity risk pools exist in most states throughout the
country. They have been described by the Texas State Comptroller in the
following way:
a cooperative group of governmental entities joining together
to finance an exposure, liability or risk. Risk may include
property and liability, workers’ compensation, or employee
health care. A pool may be a standalone agency or included
as part of a larger agency that acts as the pool’s sponsor.12/
When two or more independent public entities desire to share risk,
12/ See Statement No. 10 of the Governmental Accounting Standards Board, Pg. 4
(Nov. 1989); see also Texas State Comptroller, Fiscal Management Division (FMX)
Website at Note 17- Risk Management, Public Entity Risk Pool
(https://fmx.cpa.texas.gov/fmx/pubs/afrrptreq/notes/index.php?menu=2§ion=
note17&page=note17 ).
6
they may do so by forming a pool, rather than independently self-insuring
or obtaining coverage from the private insurance market. In general, the
member entities of self-insurance pools transfer their risk exposures
(minus a deductible) to the pool, sharing with other entities in the pool
the transfer of related risks. Jason E. Doucette, Note, Wading into the
Pool: Interlocal Cooperation in Municipal Insurance and the State
Regulation of Public Entity Risk Sharing Pools—A Survey, 8 CONN.
INS. L.J. 533, 537 (2002). In most states, governmental risk pooling is
considered to be a form of self-insurance. Id.; see, e.g., Statewide Ins.
Fund v. Star Ins. Co., 289 A.3d 448, 454 (N.J. 2023) (“‘Risk-pooling’
arrangements, such as JIFs [Joint Insurance Funds], are different from
typical insurance contracts in which an authorized insurer assumes the
risk in exchange for a premium. JIF members decidedly retain the risk
typically assumed by carriers. Public entities do not purchase insurance
from JIFs; instead, they join JIFs, manage risk, and optimize taxpayer
dollars by self-insuring or reducing coverage costs.”).
Administrative services (e.g., underwriters, claim operations, loss
prevention/risk management, reinsurance purchasing) are either
provided by the pool or by third parties retained by the pool. Doucette,
supra, at 537. Rather than issue an insurance policy, pools typically issue
a document called a “plan document” or “coverage agreement” that is an
intergovernmental contract for coverage among the pool’s member
7
entities and the pool itself. Under a coverage agreement, the pool will
self-insure the members based on the terms and conditions of the
coverage agreement in exchange for a “contribution,” rather than a
“premium,” and it is through these member contributions that the public
entities “pool” their funds with the risk pool. Id. In most states,
governmental entity risk pools have a governance structure organized
around a board of directors/chief executive form of organization. Id.
Even though most pools’ coverage agreements contain terms and
concepts similar to those found in insurance policies, with coverage
terms, exclusions, exceptions to exclusions, coverage territories, and
coverage periods, pools are not considered insurers and their contracts
are excluded from insurance regulation in most states, including Texas.13/
13/ See, e.g., TEX. GOV’T CODE ANN. § 791.001 et seq.; TEX. GOV’T CODE ANN. §
2259.037; Hill v. Tex. Council Risk Mgmt. Fund, 20 S.W.3d 209, 213–14 (Tex.
App.—Texarkana 2000, pet. denied); Coffman v. Scott Wetzel Servs., 908 S.W.2d
516, 517 (Tex. App.—Fort Worth 1995, no writ); Nunn v. City of Vernon Emple.
Benefit Tr., No. 07-05-0212-CV, 2006 Tex. App. LEXIS 1545, *4 (Tex. App.—
Amarillo Feb. 27, 2006, no pet.); City of S. El Monte v. So. Cal. Joint Powers Ins.
Auth., 45 Cal. Rptr. 2d 729, 732 (Cal. Ct. App. 1995); CAL. GOV’T CODE § 990.8(c)
(West 2010) (stating “[t]he pooling of self-insured claims or losses among entities
as authorized in subdivision (a) of Section 990.4 shall not be considered insurance
nor be subject to regulation under the Insurance Code.”); see also OHIO REV. CODE
ANN. § 2744.081(E)(2) (West 2006) (“A joint self-insurance pool is not an insurance
company. Its operation does not constitute doing an insurance business and is not
subject to the insurance laws of this state”); COLO. REV. STAT. ANN. § 24-10-
115.5(2) (West 2008) (“Any self-insurance pool authorized by subsection (1) of this
section shall not be construed to be an insurance company nor otherwise subject
to the provisions of the laws of this state regulating insurance or insurance
companies . . . ”); OR. REV. STAT. ANN. §§ 731.036(4), (5) (West 2003) (“[T]he
Insurance Code does not apply to any of the following to the extent of subject
matter of the exemption . . . (4) Public bodies . . . that either individually or jointly
8
Pools provide their members with many advantages. They protect
their members from cyclic insurance rates, offer loss prevention services,
have expertise with governmental entities, and offer significant savings
(because they are non-profit organizations, they do not expend funds for
broker fees, and they consist of members with governmental immunity
from claims that drive up private-sector insurance prices). Doucette,
supra, at 535.
B. THE NATURE OF THE FUND.
Texas law authorizes local governments to establish self-insurance
funds “to protect the governmental unit and its officers, employees, and
agents, from any insurable risk or hazard.” TEX. GOV’T CODE ANN. §
2259.031(a). Under the Texas Interlocal Cooperation Act, local
governments are empowered to contract with one another through
interlocal agreements to pool their resources and collectively self-insure
against insurable risks and hazards. TEX. GOV’T CODE §§ 791.001,
791.011(a); Op. Tex. Att’y Gen. No. MW-347 (May 29, 1981).
establish a self-insurance fund for tort liability . . . [or] (5) Public bodies . . . that
either individually or jointly establish a self-insurance fund for property damage
. . . ”); FLA. STAT. ANN. § 624.4622 (West Supp. 2007) (which does not subject pools
to the Florida Insurance Code, other than some reporting and initial capitalization
requirements).
9
The issuance of public securities and the use of available money for
a self-insurance fund are defined public purposes of a governmental unit,
and self-insurance funds are not subject to the Texas Insurance Code and
other Texas laws relating to the provision or regulation of the private
insurance market. TEX. GOV’T CODE ANN. § 791.001 et seq.; TEX. GOV’T
CODE ANN. § 2259.037; Hill, 20 S.W.3d at 213–14; Coffman, 908 S.W.2d
at 517.
The Texas Supreme Court has confirmed that governmental risk
pools are themselves governmental entities which, separate from their
constituent members, are entitled to assert governmental immunity in
their own right. See TEX. GOV’T CODE ANN. § 2259.001; TEX. CIV. PRAC. &
REM. CODE ANN. § 101.001(3)(D); Ben Bolt-Palito Blanco Consol. Indep.
Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint 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 Fund is one such self-insurance pool, formed pursuant to the
Texas Interlocal Cooperation Act.14/ The Fund has over 1,000 political
14/ CR 1001.
10
subdivisions as its members, including Texas school districts, community
colleges, and other governmental educational organizations.15/
C. THE TERMS OF THE DISTRICT’S SELF-INSURANCE COVERAGE
DOCUMENTS.
Fund members established the Fund and its property self-
insurance program through a document called the Interlocal
Participation Agreement (the “Interlocal Agreement”).16/ It is undisputed
that the College executed the Interlocal Agreement in 2012 and is
obligated to comply with its terms.17/ In the Interlocal Agreement, all
Fund members, including the College, expressly agree to abide by the
“Bylaws of the Fund.”18/
The specific coverage afforded individual Fund members is stated
in a “Contribution & Coverage Summary”, and a program specific
document known as the “Property Coverage Agreement” (collectively, the
“Coverage Documents”),19/ both of which are expressly incorporated by
reference in the Interlocal Agreement.20/
15/ Id.
16/ CR 1002, 1005-1010.
17/ CR 1010.
18/ CR 240-247, 1008.
19/ CR 1012-1052.
20/ CR 1005, 1007-1008, 1014, 1017.
11
The Fund’s property coverage program provides each member with
two coverage options from which the member must elect within 180 days
after the date of a contractually defined Loss: (1) the option to repair or
replace the Covered Property and be reimbursed for amounts the member
has actually and necessarily spent (“replacement cost value” or “RCV”);
or (2) the option to receive payment for the Actual Cash Value of the
Covered Property subject to Loss (“ACV”).21/
The RCV option provides reimbursement coverage and the Property
Coverage Documents expressly state that the maximum allowable RCV
reimbursement is for the amounts a member actually and necessarily has
spent out of pocket to repair or replace Covered Property, within 365 days
of the Loss (unless an extension is granted by the Fund in writing).22/ If
a Fund member does not complete repairs within the 365 day period, or
within a longer period if the member is granted a written extension by
the Fund or its representatives, Fund members have agreed that any
payments made by the Fund before the end of the RCV period “will be
the full and final payment for the Loss.”23/
The ACV option provides advancement coverage that is “computed
by subtracting the depreciation of the Covered Property subjected to Loss
21/ CR 1020.
22/ CR 941, 1020.
23/ Id.
12
from the actual replacement cost of the Covered Property, using material
of like kind and quality at the time of Loss.”24/
D. THE COLLEGE SELF-INSURANCE CLAIM.
The College filed a claim with the Fund on April 13, 2020, related
to an April 11, 2020 hail event at its Del Rio campus (the “April 2020
Claim”).25/ The Fund adjusted the April 2020 Claim per the terms of the
Interlocal Agreement.26/ The Fund assigned an independent adjuster and
hired engineers to visit and inspect the College’s properties on multiple
occasions.27/ The College did not make the mandatory election between
ACV and RCV coverage for its alleged Loss,28/ and, ultimately, the Fund
made an estimated ACV payment to the College of $1,241,309.63 for the
April 2020 Claim.29/
The Fund granted the College four extensions of the 365 day repair
and replace deadline under the Property Coverage Documents, through
February 18, 2023.30/ The College did not complete repairs or replacement
24/ CR 1020.
25/ CR 940.
26/ CR 189.
27/ Id.
28/ Id.
29/ CR 189, 941.
30/ CR 189, 941.
13
of its allegedly damaged property before the extended RCV deadline
expired, or incur out of pocket expenses greater than the $1,241,309.63
payment already made by the Fund.31/
E. THE COLLEGE LAWSUIT AGAINST THE FUND AND THE TRIAL COURT
PROCEEDINGS.
On November 17, 2023, the College sued the Fund for breach of
contract, seeking “actual damages, consequential damages, reasonable
and necessary attorney’s fees . . . [and] pre- and post-judgment
interest.”32/ The College did not seek to enforce the express written terms
of the contract it signed; instead it sought to enforce an equitably
rewritten contract that disregards various express terms that the College
indisputably did not comply with, purportedly based upon the equitable
doctrines of waiver and unconscionability.33/ The College also asserted
tort claims against the Fund’s adjuster, Abercrombie, Simmons, &
Gillette Inc. (“ASG”).34/
The Fund filed a Jurisdictional Plea on November 12, 2024,
asserting that the College’s claims for equitable relief, allegations of
31/ CR 189, 945-947.
32/ CR 17.
33/ CR 12, 16-17.
34/ CR 17-24.
14
tortious conduct, and consequential damages claim were barred by
governmental immunity and that no legislative immunity waiver exists
under the Act as to those claims.35/
Shortly after the Fund filed its Jurisdictional Plea, the College filed
an Amended Petition.36/ The Amended Petition repeated the College’s
claims for equitable relief and consequential damages, but also asserted
a new and different cause of action against the Fund for an alleged breach
of the common law duty of good faith and fair dealing,37/ and multiple
allegations of “bad faith” and “fraudulent misrepresentation(s)” by the
Fund. See, e.g.:
• “[E]ach of these promises and representations proved to be
false—in reality TASB used the same tactics, biased
inspectors, misreading of policy language, and pretextual
investigations as bad faith insurance carriers . . .”38/
• “Based on TASB’s representations listed above, Plaintiff
entered into an agreement with TASB to pay premiums in
exchange for comprehensive property damage coverage . . .”39/
• “TASB . . . made multiple misrepresentations to Plaintiff
about coverage to the Campus . . . in coordinated effort to
underpay and defraud Plaintiff.”40/
35/ CR 33-110.
36/ CR 111-124.
37/ CR 120-121.
38/ CR 114 (emphasis added).
39/ CR 115.
40/ CR 116.
15
• “TASB’s bad faith failure to adjust the claim and provide
necessary moneys to repair the Campus has cause [sic]
further damage and injury to the Plaintiff’s real property.”41/
(emphasis added)
On March 26, 2025, the Fund moved for summary judgment on both
merits and jurisdictional grounds. The Fund’s MSJ reincorporated the
grounds in its Jurisdictional Plea and also addressed the immunity-
barred claims asserted in the College’s Amended Petition.42/ After the
College cross-moved for summary judgment on some of the Fund’s
affirmative defenses and its assertion of governmental immunity,43/ the
Fund filed a response to the College’s MSJ that reincorporated the
grounds in its Jurisdictional Plea as well as the immunity-barred claims
asserted for the first time in the College’s Amended Petition.44/ The
College replied in support of the its MSJ and responded to the Fund’s
Jurisdictional Plea, on May 12, 2025.45/
At the May 12, 2025 oral hearing,46/ the trial court signed orders
41/ CR 119.
42/ CR 130, 164-175.
43/ CR 436, 445-447.
44/ CR 976-985.
45/ CR 1248-1568.
46/ CR 1242-1247.
16
denying the Fund’s Jurisdictional Plea and granting the College’s MSJ,
thereby implicitly denying the Fund’s jurisdictional challenges asserted
in the Fund’s MSJ and in its response to the College’s MSJ.47/ This
interlocutory appeal followed.48/
While the appeal was pending, the College filed an Amended Notice
of Non-Suit of Certain Claims with Prejudice in the trial court (“Partial
Nonsuit”).49/ The Fund consented to lifting the automatic stay of all trial
court proceedings under TEX. CIV. PRAC. & REM. CODE § 51.014(b) for the
limited purpose of accepting the College’s Partial Nonsuit.50/
IV.
SUMMARY OF THE ARGUMENT
This case raises important issues concerning the proper application
of the governmental immunity doctrine by Texas trial courts, which
serves as an essential component of the separation-of-powers principle
and assures that the three coordinate branches of Texas government duly
respect the decisions entrusted to each and accord them proper deference.
47/ CR 1569-1570.
48/ CR 1578-1581.
49/ APP. F; see also the College’s Motion to Dismiss Appeal as Moot (filed 6/6/2025)
(the “MTD”), at Exhibit A.
50/ APP. G; see also the College’s MTD at Exhibit B.
17
Governmental entities such as the Fund remain immune from both
suit and liability, except where the Texas Legislature has clearly and
unambiguously waived their immunity by statute. See Tooke v. City of
Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006).
The Act contains a narrow immunity waiver for claims to enforce
the express terms of written contracts with government entities. The
waiver is limited to “adjudicating a claim for breach” of “written
contract[s] stating the essential terms of the agreement . . . that are
properly executed on behalf of the governmental entity,” and the liability
to which government entities are exposed is further restricted to damages
owed “under the contract as it may have been amended,” and equitable
remedies of “specific performance or injunctive relief.” TEX. LOC. GOV’T
CODE §§ 271.151(2)(A), 271.152, 271.153 (emphasis added).
Because the Act does not waive immunity for any other claims,
damages, or equitable relief, a plaintiff who invokes the Act to sue a
governmental entity must confine its claims to enforcement of the
express terms of its written governmental contract and limit any recovery
to the types of damages and equitable remedies expressly provided for in
the Act. A plaintiff cannot invoke the Act’s limited immunity waiver as
its jurisdictional ticket to force a governmental entity into the
18
courthouse, and then pursue broader claims, damages, or equitable
theories that disregard and contradict the essential contract terms and
the limited waiver in the Act.
The College impermissibly seeks to do just that. After purporting to
invoke the Act’s limited immunity waiver by asserting a claim to
purportedly enforce the self-insurance contract that it signed with the
Fund, the College attempted to seek equitable relief disregarding express
terms of the contract that is not authorized by Section 271.153 of the Act
and excluded consequential damages, all of which would expose the Fund
to liability far beyond the scope of the limited immunity waiver enacted
by the Texas Legislature.
The trial court’s ruling violates the Texas Supreme Court’s
instructions on the proper and limited application of the Act’s express
immunity waiver in Zachry Constr. Corp. v. Port of Hous. Auth. of Harris
Cty., 449 S.W.3d 98, 109–111 (Tex. 2014) (“Zachry”), which confirms that
the Act does not create a blanket waiver of immunity for any and all
claims, damage theories, and relief that in any way “relate to” a contract
that qualifies under the Act, but instead applies only to specific claims,
for specific types of damages, and specific types of equitable relief.
Zachry, 449 S.W.3d at 109.
19
The graphic below depicts the proper interrelationship of the
statutory immunity waiver in the Act and its other limiting provisions:
20
Because the Act does not waive immunity for consequential
damages or equitable relief that is not expressly listed in Section 271.153,
the trial court erred when it denied the Fund’s Jurisdictional Plea and
granted the College’s MSJ (and implicitly denied the jurisdictional
arguments in the Fund’s MSJ).
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.
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
21
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).51/ 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
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
51/ The Supreme Court permits a jurisdictional challenge to be raised by a number of
procedural vehicles, including a plea to the jurisdiction, a motion to dismiss, or a
motion for summary judgment. See Bland Independent School District, 34 S.W.3d
at 554. The Fund’s jurisdictional challenge was first raised in its Jurisdictional
Plea, which was later updated and incorporated into the Fund’s MSJ and the
Fund’s response to the College’s MSJ, after the College amended its pleadings to
assert new immunity-barred claims against the Fund.
22
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 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, 212 S.W.3d at 326;
Benavides Indep. Sch. Dist., 221 S.W.3d at 737.
The College cannot proceed with its claims unless it satisfies its
burden to establish a legislative waiver of the Fund’s immunity with
23
respect to each such 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.
The College alleges that the Legislature waived the Fund’s
immunity through TEX. LOC. GOV’T CODE § 271.152,52/ 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
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 limits available contract damages to, among other
things, the balance due and owed “under the contract as it may have been
52/ CR 112.
24
amended,” and available equitable remedies to “specific performance or
injunctive relief” in suits involving a specific type of contract not at issue
here. See id. § 271.153 (emphasis added); Zachry, 449 S.W.3d at 110
(“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 GOVERNMENTAL IMMUNITY
FROM CERTAIN OF THE COLLEGE’S CLAIMS.
The College contends that so long as it has alleged a breach of a
qualifying government contract, the Act “broadly waive[s] governmental
immunity” for all claims that in any way relate to the contract, including
fraud, misrepresentation, waiver, unconscionability, and estoppel
claims.53/ In disregard of the Act’s express exclusion of consequential
damages from the scope of § 271.152’s immunity waiver, the College also
contends that it is free to seek any category of damages otherwise
available in an ordinary breach of contract claim between non-
governmental litigants.54/
The College has incorrectly depicted its expansive interpretation of
53/ CR 445.
54/ CR 1252 (“[L]ike the breach of contract claim the Fund acknowledges as viable,
because the consequential damage arises from the same core theory of liability
that is the Fund’s failure to pay covered losses and remain recoverable under the
breach of contract claim.”).
25
the Act’s limited immunity waiver in the following way:55/
Statutory waivers of immunity do not operate in such an “all-or-
nothing” fashion. See Miranda, 133 S.W.3d at 226–227; Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“We
interpret statutory waivers of immunity narrowly, as the Legislature's
intent to waive immunity must be clear and unambiguous.”)(emphasis
added). When a plaintiff asserts multiple claims for relief in a single
lawsuit against a governmental entity, if a statute waives immunity for
55/ CR 1575.
26
some claims, damages, or relief, but not others, the trial court must
dismiss the claims over which it lacks jurisdiction and retain only the
claims over which it has jurisdiction. See Bland Indep. Sch. Dist., 34
S.W.3d at 554–55; Thomas, 207 S.W.3d at 338–339.
The Act’s limited waiver of immunity authorizes the College to
adjudicate a breach of contract claim to enforce the written terms of its
contract with the Fund and pursue specifically defined categories of
damages and equitable relief. The Act is not a “blanket waiver” of
immunity for every claim, type of damage, or equitable remedy that may
in some way relate to the contract. See Zachry, 449 S.W.3d at 106, 109-
110; City of Galveston v. State, 217 S.W.3d 466, 470 (Tex. 2007). The Act
only “waives immunity for contract claims that meet certain conditions:
the existence of a specific type of contract, a demand for certain kinds of
damages, a state forum, etc.” Zachry, 449 S.W.3d at 109.
1. No Waiver Exists of the Fund’s Immunity from the College’s
Consequential Damages Claims.
The College has asserted claims for “consequential damages”
against the Fund.56/ Section 271.153(a) of the Act waives immunity for
56/ CR 119-121 (“Plaintiff has suffered damages in the form of . . . consequential
damages . . .” “As a result of TASB’s aforementioned acts and/or omissions,
Plaintiff sustained . . .(2) consequential damages . . .”)
27
the recovery of “the balance due and owed . . . under the contract.” See
TEX. LOC. GOV’T CODE § 271.153. The Act expressly prohibits any award
of consequential damages for a breach of contract, 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.” See id. at §§
271.153(a)(1), (b)(1) (emphasis added). The College is the “owner” of the
relevant properties in this case and it did not allege or adduce any
jurisdictional evidence that it had incurred increased costs to perform
work as a direct result of its own delays or acceleration.
Accordingly, no waiver exists of the Fund’s governmental immunity
under the Act for the College’s consequential damages claims, and the
trial court erred when it refused to dismiss them for lack of subject matter
jurisdiction. Zachry, 449 S.W.3d at 110 (“We conclude that the Act does
not waive immunity from suit on a claim for damages not recoverable
under Section 271.153.”).
2. No Waiver Exists of the Fund’s Immunity from the College’s
Equitable Claims that Express Terms of the Parties’ Written
Agreement are Waived, Unconscionable, or Void.57/
57/ On June 6, 2025, the College nonsuited with prejudice all “claims based on the
equitable doctrine of unconscionability,” “claims for equitable relief,” and “claims
challenging the validity of the Agreement provisions.” See App. F. To the extent
the College continues to assert that the equitable doctrines of waiver and
28
a. Governmental Entities Historically Are Immune from
Equitable Defenses Such as Waiver and Estoppel.
The College has invoked the equitable doctrines of waiver and
unconscionability to strike or excuse certain of its contractual
performance obligations from the Interlocal Agreement and Coverage
Documents, on the grounds that those express contract terms are
unenforceable or “void.”58/
Breach of contract, waiver, and unconscionability claims are
distinct from one another and involve proof of different elements.59/ This
remains true whether they are asserted offensively – as the College has
done here – or as affirmative defenses. Absent an express and
unambiguous statutory waiver of immunity from suit, governmental
entities like the Fund retain their inherent immunity from claims or
defenses seeking relief based upon equitable doctrines. See Prairie View
unconscionability render any contract provisions unenforceable as written, the
Fund remains immune for the reasons discussed in this sub-section.
58/ CR 12 (“The Agreement was drafted by TASB and contains provisions that are
void, unconscionable, and/or were waived . . .”); CR 115 (same).
59/ City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 10 n.7 (Tex. App.—
Houston [1st Dist.] 2007, no pet.)(elements of breach of contract claim); Furmanite
Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326, 336 (Tex. App.—Dallas 2011,
no pet.)(elements of claim for relief under an equitable waiver doctrine);
Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 498–99 (Tex. 1991)
(Gonzalez, J., concurring)(elements of equitable claim to strike unconscionable
contract terms).
29
A&M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012)(applying
equitable defenses to governmental entities “invades the domain of the
Legislature and cuts against the very nature of sovereign immunity.”); H
& H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV,
2007 Tex. App. LEXIS 8878, at *7 (Tex. App.—Corpus Christi Nov. 8,
2007, pet. denied)(“estoppel, waiver, and detrimental reliance claims
sound in equity and are not included in section 271.152’s limited waiver
of governmental immunity.”); see also Enterprise Leasing Co. of Houston
v. HCTRA, 356 S.W.3d 85, 89-90 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) (“Affirmative defenses of waiver and estoppel are equitable in
nature. Affirmative defenses based in equity have been consistently held
not to apply when the activity complained of is a governmental
function.”).
b. Zachry Broadly Disapproved the Principle that a Court
Should Not “Parse” the Pleadings to Determine
Whether Asserted Claims, Damages, and Remedies Fall
Within the Scope of Sections 271.152 and 271.153.
Section 271.152 does not waive immunity for a claim for relief that
does not satisfy the Act’s strict requirements, even if it is somehow
“related” to a qualifying contract. See id. In Zachry, the Texas Supreme
Court disapproved an earlier line of lower court decisions, including City
30
of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 447 (Tex. App.—
Dallas 2008, pet. denied), that had held to the contrary – that a court
need not “parse further the pleadings or contract to determine whether
the legislature has waived immunity,” as long as it finds that the contract
at issue “falls within the provisions of section 271.152.” Id. at 110 n.54.60/
Zachry made clear that Section 271.152 contains the only immunity
waiver in the Act and that the other provisions in the Act – particularly
Section 271.153 – contain additional “terms and conditions” that further
“limit” the scope of the immunity waiver. Zachry, 449 S.W.3d at 106–108,
111.
The College contends that City of Mesquite remains the controlling
standard.61/ But a close reading of Zachry reveals that the Texas Supreme
Court necessarily disapproved the entirety of the Mesquite court’s
reasoning.
In Mesquite, a contractor sued the City of Mesquite for breach of
contract. 263 S.W.3d at 446. The City contended that the contractor’s
60/ See, e.g., Roma ISD v. Ewing Const. Co., No. 04-12-00035-CV, 2012 Tex. App.
LEXIS 5968, at *9 (Tex. App.—San Antonio July 25, 2012, pet. denied); Port
Freeport v. RLB Contracting Inc., 369 S.W.3d 581, 591 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied); City of Mesquite, 263 S.W.3d at 448.
61/ CR 1549-1552.
31
claims and damages must be limited to those encompassed by the written
terms of the parties’ agreement and that the City remained immune from
suit and from liability for anything else. Id. at 447–48. Zachry held that
the limitations in Section 271.153 are jurisdictional with respect to
determining the scope of the immunity waiver in Section 271.152, and
this necessarily requires that a trial court “parse the pleadings” to assess
whether the contract falls within Section 271.152 and the types of relief
sought fall within Section 271.153, to determine whether immunity has
been waived. The issues are not separate; they are intertwined and
interrelated. Zachry disapproved the holding in Mesquite that once a
plaintiff gets its foot into the courthouse door by suing on a contract that
qualifies under Section 271.152, it then is free to seek whatever damages
or equitable relief it wishes, irrespective of whether that relief falls
within the scope of the Section 271.153 damages waiver, which “further
define[s] to what extent immunity has been waived.” Zachry, 449 S.W.3d
at 110.
This Court should not rely upon Mesquite or the other disfavored
court of appeals decisions that relied upon Mesquite. Zachry is the
controlling standard for immunity waivers under Section 271.152, and it
forecloses the College’s claims for equitable relief.
32
c. No Statutory Waiver of Immunity Exists for
“Subordinate” Equitable Issues.
The College argued below that because it has asserted a claim for
replacement cost damages that it contends are due and owing – alleged
damages that are barred by the existing and express terms of the parties’
written contract – it can disregard certain of those terms that it disfavors
based upon what it characterizes as “subordinate” equitable theories.62/
But the recovery of equitable relief avoiding enforcement of express
contract terms based upon the equitable doctrines of waiver and
unconscionability is not among the authorized equitable remedies
enumerated in Section 271.153 – where the Legislature expressly defined
the damages and equitable relief (i.e., specific performance and
injunctive relief) that falls within the Act’s narrow immunity waiver. See
Harris County v. Crooker, 112 Tex. 450, 458, 248 S.W. 652, 655 (Tex.
1923) (“The rule expressio unius est exclusio alterius is a sound one,
frequently applied in the construction of statutes.”).
Under the plain terms of the Act, the Fund’s immunity from suit is
waived only for damages owed under the actual express terms of the
parties’ contract plus a limited category of other damages and specific
62/ CR 1548-1551.
33
types of equitable relief not implicated here. Section 271.153 does not
purport to authorize the recovery of relief (and a corresponding waiver of
immunity) based upon other equitable theories. The College’s contrary
argument is foreclosed by the clear an unambiguous language in Section
271.153, which this Court must strictly construe. Jackson, 192 S.W.3d at
770. The trial court therefore erred when it denied the Fund’s
jurisdictional plea concerning those claims.
d. Hays Street Bridge Restoration Group v. City of San
Antonio Does Not Apply to the Version of the Act at
Issue and Does Not Establish a Waiver of Immunity for
Other Forms of Equitable Relief that the Legislature
Did Not Include in the Current Version of the Act.
The College’s reliance on the Texas Supreme Court’s 2019 decision
in Hays Street Bridge Restoration Grp. v. City of San Antonio, 570
S.W.3d 697 (Tex. 2019) for the proposition that the Act waives immunity
for all equitable claims arising out of a qualifying contract under the Act,
is misplaced.63/ Hays Street is distinguishable and inapplicable for
multiple reasons.
First, Hays Street interpreted and applied the materially different
2005 version of the Act in which Section 271.153 was silent as to
63/ CR 1555-1556.
34
equitable remedies, to determine whether government immunity had
been waived to authorize a specific performance remedy (as opposed to a
recovery of monetary damages). The Texas Supreme Court noted that the
Texas Legislature had since amended Section 271.153 in 2013 expressly
to authorize the equitable remedies of specific performance and
injunctive relief in certain limited situations, and the Court reserved the
issue whether the 2013 version of Act Section 271.153 limits waivers of
immunity for equitable relief solely to the categories the Legislature has
now specified. Id. at n.65.
The College does not distinguish between the inapplicable 2005
version of the Act that applied in Hays Street, and the current 2013
version of the Act that applies here.64/ Hays Street is therefore inapposite
because it discusses an earlier version of the Section 271.153 that did not
include the Legislature’s clear and unambiguous determination that
immunity is waived only for two specific equitable remedies, neither of
which is implicated in this case. 570 S.W.3d at 699 n.2.
64/ The 2013 version of the Act applies to “a claim that arises under a contract
executed on or after the effective date” of the Act. Acts 2013, 83rd Leg., ch. 1138
(H.B. 3511), §§3, 4(c) [effective June 14, 2013]; 2013 Tex. Gen. Laws 1138. The
only contract identified in the College’s pleading is the Property Coverage
Agreement “for any covered losses occurring from September 1, 2019 through
August 31, 2020.” CR 115.
35
Second, the specific performance sought in Hays Street was not an
extra-contractual equitable claim of the sort the College asserts. The
Hays Street plaintiff asserted a right to specific performance as its
judicial remedy to enforce the express terms of a governmental contract
subject to the Act. See id. at 701. The College seeks antithetical equitable
relief that would disregard and excuse its performance of the express
written terms of its contract and enforce and impose liability under an
entirely different agreement that the Fund never agreed to. 570 S.W.3d
at 701. Neither Hays Street nor the Act authorizes this sort of judicially-
created immunity waiver, which would result in open-ended
governmental contract liability well-beyond that authorized by the
Legislature. See id.65/ Hays Street therefore is distinguishable from this
case on a fundamental level, regardless of which version of the Act
applies.
65/ In Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006), the Texas
Supreme Court judicially abrogated governmental immunity for government
entities who choose voluntarily to engage in litigation and assert affirmative
claims for monetary damages, but only to the extent of any claims that are
“germane to, connected to, and properly defensive to claims asserted by the
[government], to the extent any recovery on those claims will offset any recovery
by the [government].” Id. at 375, 378. The Reata waiver principle is not applicable
here, where the Fund has asserted no claims for monetary relief, and the College’s
supposedly defensive theories are equitable in nature, and not asserted as an
offset to the Fund’s non-existent claim for money damages.
36
e. Section 271.155 does not grant an immunity waiver for
the College’s Equitable Claims.
The College has taken the position that its request for equitable
relief that certain provisions of the underlying contract have been waived
or are unconscionable are not immunity barred because Section 271.155
states that the Act “does not waive defenses available to a party to a
contract.”66/ The courts of appeals that have considered this argument
thus far have misconstrued Section 271.155. See Tex. Ass'n of Sch. Bds.
Risk Mgmt. Fund v. Colo. Indep. Sch. Dist., 660 S.W.3d 767, 769 (Tex.
App.—Eastland 2023, no pet.) (“Colorado”); Tex. Ass'n of Sch. Bds. Risk
Mgmt. Fund v. Greenville Indep. Sch. Dist., No. 05-21-01012-CV, 2022
Tex. App. LEXIS 4952, at *8 (Tex. App.—Dallas July 19, 2022, pet.
denied) (“Greenville”).
The purpose of Section 271.155 is to ensure that the Act only waives
a defendant governmental entity’s immunity and not any of its other
defenses or damage limitations. Zachry, 449 S.W.3d at 107 (“Section
271.155 preserves defenses other than immunity.”). The title of Section
271.155 is “No Waiver of Other Defenses” (emphasis added), indicating
that it refers to other defenses of the party whose immunity is being
66/ CR 1545.
37
waived by the Act. That section therefore only applies in circumstances
where a party that has sued a local government contends that the Act
has also waived the defendant local government’s contractual or
equitable defenses—its other defenses—in addition to its immunity.
Zachry makes clear that Section 271.155 is a “limitation[ ] on the waiver
of immunity” in Section 271.152. Zachry, 449 S.W.3d at 108.
Reading that limitation on the immunity waiver to expose a
government defendant to equitable remedies not enumerated in the Act
– and from which it is immune under the common law67/ – and therefore
expand both the limited waiver and the extent of its liability, does not
comport with the plain meaning of the statute or the legal requirement
to narrowly construe waivers of immunity. See TEX. GOV’T CODE §
311.034; Tooke, 197 S.W.3d at 328–29. Section 271.155, therefore, does
not waive the Fund’s immunity for the College’s equitable claims.
f. The College Asserts the Equitable Doctrines of Waiver
and Unconscionability Offensively, Not Defensively.
This case is distinguishable from Colorado and Greenville because,
unlike in those cases, the College asserts its equitable waiver and
67/ See, e.g., Chatha, 381 S.W.3d at 515; H & H Sand & Gravel, Inc., 2007 Tex. App.
LEXIS 8878, at *7; Enterprise Leasing Co. of Houston, 356 S.W.3d at 89-90.
38
unconscionability theories offensively, and not as defenses to any claim
or affirmative defense by the Fund. The Colorado court emphasized that
its decision turned on “constru[ing] the context in which these [equitable]
theories have been asserted.” Id. at 769. And, because the school district
in that case invoked the equitable doctrines of waiver and estoppel in its
amended pleadings solely “in response to the defense of an unfulfilled
condition precedent raised by the Fund,” the court held that they were
“raised in a defensive context [and] fall within the Act’s waiver of
immunity.” Id. (emphasis in original); see also Greenville, 2022 Tex. App.
LEXIS 4952, at *8 (“Greenville’s defensive theories benefit from the same
waiver of immunity.”) (emphasis added).
The context here is materially different. The College asserted
waiver and unconscionability offensively in an attempt to proactively
strike its express performance obligations and aspects of its contractual
damage formula from its contract with the Fund. The College did so in
its Original Petition, not in response to any defensive position asserted
by the Fund:68/
68/ CR 12 (emphasis added).
39
Accordingly, even if Section 271.155 were construed to expand
Section 271.152’s immunity waiver to include other subordinate
equitable defenses that the Texas Legislature chose not to include in
Section 271.153 of the Act – which it should not be – the College has not
asserted its equitable theories defensively, and the Fund remains
immune from the College’s attempt to assert those theories offensively,
to rewrite the express terms of the parties contract.
g. The College Adduced No Jurisdictional Evidence of a
Viable Waiver or Unconscionability Claim.
Under the plea to the jurisdiction standard, which mirrors the
Texas summary judgment procedure, mere allegations of a potential
claim are insufficient to establish a waiver of immunity. The plaintiff
must affirmatively demonstrate that its claim is viable and that
immunity does not apply or has been waived. See, e.g., Matzen v.
McLane, 659 S.W.3d 381, 389 (Tex. 2021). Where the government
defendant contests the jurisdictional allegations and offers evidence to
40
defeat them, the plaintiff has the burden to adduce its own evidence
creating a genuine fact issue to survive dismissal. Miranda, 133 S.W.3d
at 227. The Fund challenged and contested the sufficiency of the College’s
jurisdictional allegations regarding its equitable remedies based on
waiver and unconscionability, and submitted evidence that conclusively
disproved the College’s allegations.69/ The College therefore could not rest
on its allegations alone. Id.
The College adduced no evidence creating a genuine fact issue on
its waiver and unconscionability claims, including any evidence to rebut:
• The enforceable “no waiver” provision in the underlying
contract, which permits waiver of a contractual right or
obligation “only when expressly waived in writing by the
waiving party,” and forecloses any implied waiver based upon
mere “act or omission.”70/ See Shields Ltd. P'ship v. Bradberry,
526 S.W.3d 471, 481 (Tex. 2017) (“[A]s a general proposition,
nonwaiver provisions are binding and enforceable.”);
• The Fund’s conduct that was entirely consistent with the
contract’s waiver restrictions and the 365 day repair and
replacement timeline in the contract, including its approval of
four written extensions of that deadline.71/ Id. at 474 (waiver
of a non-waiver clause requires, at a minimum, conduct that
is inconsistent with its terms);
• The lack of any “shocking” circumstances surrounding the
negotiation of the underlying contract between the Fund and
69/ CR 39, 176-177, 189, 195, 941, 1088.
70/ CR 176, 195.
71/ CR 189, 941.
41
the various members who created the Fund. LeBlanc v.
Lange, 365 S.W.3d 70, 88 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (“[T]he circumstances surrounding the
negotiations must be shocking” to warrant a finding
of procedural unconscionability.);72/ and
• The absence of any contract terms that are “so one-sided that
it is unconscionable under the circumstances existing when
the parties made the contract.” In re FirstMerit Bank, N.A.,
52 S.W.3d 749, 757 (Tex. 2001).
Moreover, the College has now dismissed with prejudice any claim
based upon an unconscionability theory.
Accordingly, even if the College conceivably were permitted to
assert equitable waiver and unconscionability claims against the Fund,
which it cannot do, the College did not satisfy its evidentiary burden to
create a genuine fact issue about whether it has viable equitable claims
that could effect a waiver of the Fund’s immunity. Matzen, 659 S.W.3d
at 389; Miranda, 133 S.W.3d at 227.
VII.
PRAYER
The Fund has governmental immunity from suit, and the College
had the burden to establish an applicable statutory waiver of that
immunity with respect to each its claims. The only statutory immunity
72/ The College has dismissed with prejudice any argument that the circumstances
surrounding the parties' contract were unconscionable, or involved fraud,
bad faith, misrepresentations, or other intentionally tortious conduct. See App.
F.
42
waiver the College has asserted, § 271.152, applies narrowly only to a
breach of contract claim based upon the express terms of the parties’
signed agreement, and is further limited to specifically defined categories
of relief. The Legislature has not expressly waived the Fund’s retained
immunity from suit and from liability based upon the College’s: (1) extra-
contractual equitable theories of waiver and unconscionability; or (2)
consequential damages claim. Accordingly, the trial court erred in
denying the Fund’s Jurisdictional Plea, granting the College’s MSJ, and
implicitly denying the amended jurisdictional arguments in the Fund’s
MSJ and response to the College’s MSJ.
The Fund therefore respectfully requests that this Court reverse
the trial court’s orders denying the Jurisdictional Plea and granting the
College’s MSJ on jurisdictional grounds, and grant the Fund such other
and further relief, whether legal or equitable, to which it may show itself
to be justly and equitably entitled.
Respectfully submitted,
By: /s/ Jack W. Higdon
Jack W. Higdon
jack.higdon@blankrome.com
State Bar No. 24007360
Barry Abrams
barry.abrams@blankrome.com
43
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 APPELLANT, TEXAS
ASSOCIATION OF SCHOOL BOARDS
RISK MANAGEMENT FUND
44
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
7,936 words.
Jack W. Higdon
Jack W. Higdon
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 June 23, 2025, through the Fourth
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
DUGAS & CIRCELLI, PLLC
4800 Bryant Irvin Ct.,
Fort Worth, Texas 76107
Jack W. Higdon
Jack W. Higdon
45
NO. 04-25-00316-CV
In the
Fourth Court of Appeals
San Antonio, Texas
______________________________________________
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 83rd Judicial District Court
Val Verde County, Texas, No. 2023-0279-CIV
The Honorable Robert E. Cadena, Presiding Judge
__________________________________________________________________
APPENDIX
__________________________________________________________________
App. A - Order Denying the Fund's Jurisdiction Plea (CR1569)
App. B - Order Granting the College's MSJ (CR1570)
App. C - Property Coverage Documents
App. D - The Local Government Contract Claims Act, Tex.
Loc. Gov't Code §§ 271.151, et seq. (excerpts)
App. E - Texas Government Code (excerpts)
App. F - Amended Notice of Non-Suit of Certain Claims with
Prejudice
App. G - The Fund's Consent to Lifting of Tex. Civ. Prac. &
Rem. Code § 51.014(b) Stay for Limited Purpose
APP. A
CAUSE NO. 2023-0279-CIV
SOUTHWEST TEXAS JUNIOR § IN THE DISTRICT COURT
COLLEGE. §
§
Plaintiff, §
§ 83 rd JUDICIAL DISTRICT
V. §
§
TEXAS ASSOCIATION OF SCHOOL §
BOARDS RISK MANAGEMENT FUND, §
§ VAL VERDE COUNTY, TEXAS
Defendant. §
ORDER DENYING DEFENDANT'S PARTIAL PLEA TO THE JURISDICTION
On this day, the Court considered Defendant's Partial Plea to the Jurisdiction. Having
considered the motion, arguments of counsel, and evidence presented, the Court finds that the
motion should be DENIED.
IT IS THEREFORE ORDERED that Defendant's Partial Plea to the Jurisdiction is
DENIED.
l, } r,- V'-1.
/
SIGNED on t h i s - ~ - - - - - - day of ~ , 2025.
I '--
FILED
AtrnO'Clock \'.) M
MAY \ 2 2025
'Iv
1569
APP. B
CAUSE NO. 2023-0279-CIV
SOUTHWEST TEXAS JUNIOR § IN THE DISTRICT COURT OF
COLLEGE, §
§
Plai11tiff, §
§
v. §
§ VAL VERDE COUNTY, TEXAS
TEXAS ASSOCIATION OF SCHOOL §
BOARDS RISK MANAGEMENT FUND, §
AND ABERCROMBIE, SIMMONS, & §
GILLETTE, INC., §
§
Defe11da11ts. § 83 rd JUDICIAL DISTRICT
ORDER GRANTING PLAINTIFF'S TRADITIONAL AND NO EVIDENCE MOTION
FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT TEXAS ASSOCIATION
OF SCHOOL BOARDS RISK MANAGEMENT FUND'S AFFIRMATIVE DEFENSES
Before the Court, is Plaintiffs Traditional and No Evidence Motion for Partial Summary
Judgment to Defendant Texas Association of School Boards Risk Management Fund's Affirmative
Defenses. After considering Plaintiffs Motion, the argument of Counsel, the applicable law, and
other evidence on file, the Court finds that the Motion should is hereby GRANTED.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Plaintiffs
Traditional and No Evidence Motion for Partial Summary Judgment to Defendant Texas
Association of School Boards Risk Management Fund's Affirmative Defenses is hereby
GRANTED. fj°Y
Signed this\'), day of '('I'- ~ , 2025.
FILED
·------,
At3: 1() O'Clock (2 M
t:! ~ L vU-
JUDGE PRESIDING
MAY l 2 2025
JU""°' vi;;KVANTlaS
District Clerk-Val Verde Co.
.,,,
J;J:;;.,__-~Dep,!l!Y_
1570
APP. C
08/16/2012 17:15 8305917340 SWTJC BO PAGE 03
TASB RISK MANAGEMENT FUND
INTERLOCAL PARTICIPATION AGREEMENT
Pursuant to the Texas lntertocal Cooperation Act. Chapter 791 of the Texas Govemment Code. this lntenocar
Participation Agreement (Agreement) is entered Into by and between the Texas Association of School Soards Risk
Management Fund (Fund) and the undersigned ~ I government of the State of Texas (Fund Member). The Fund is
ari administrative agency of local governments (Fund Members) that cooperate in ptrforming admini$lratlve services
and governmentel functions relative to risk management
TERMS AND CONDITIONS
In consideration of the mutual covenants and conditions con~ined in this Agreement and other good Md
valuable consideration, including, without llmltatlon, the agreement of the Fund and Fund Members to provide risk
management programs as detalled in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
Fund Member and the Fund, Intending to be legally bound, end subject to the terms, conditions, and provisions of this
Agreement, agree as follom:
1. Authority. Fund Member hereby approves and adopts the Restatement of lnterlocal Agreement, datrK! May 20,
1997, which restated the lnterloc.al Agreement dated July 2, 1974, establishrng the predecessor of the Fund. The
Restatement of lnterlocaf Agreement is incorporated rnto this Agreement by reference and ,s avalleble from the
Fund upon request Thi$ Agreement serves to outline the r&lationship ~ n the Fund and Fund Memoor.
While the Texas lnterlocal Cooperation Act provides the overarching basis for th• Fund, certain Fund programs
are further au1horized put'luant to various statutes, such as Chapter 205 of the Texas Labor Code, pertaining to
unemployment compensation: Chapter $04 of ths Texas labor Code, pertaining to workers' compensation: and
Chapter 2259, Subchapter B, of !he Texas Government Code, pertaining to other risks or hazards.
2. Program Participation. This Agreement eneble$ Fund Member to participate in one or more of the Fund's
avai!le.bl1111 progl'i!ms, including but not Umlted to, property, llabUlty, auto, workers' oomperisation, and
unemployment compensation coverage. Becauae this Is an enabling Agreement. Fund Member must also
execute a separate contribution and Coverage Summary (CCS) fur each Fund program from wnich H seeks
coverage and/or administrative services. Only e valrd CCS will confer the right to participate in a specific program
and eaoh CCS shall be incorporated Into this Agreement. Through participation In any Fund program, Fund
Member waives none of Its immunities and authorizes the Fund, or It$ designee, to assert such immunities on Its
behalf and on behalf of the Fund or its deslgnee.
3. Term of Agreement. This Agreement shall be effective from the date of the last signature below and shall
remain in effect unles.a termtnated as provided in this Agreement. This Agreement will automatically lermiriste If
Fund Member ceases to participate in at least one of the Fund's programs (due to the expiration of e CCS
partletpation term or the valid termination of seme) or fails to meet the membership quanfloatlons of the Fund as
provided In this Agreement and as determined by the Fund in writing.
4. Termination, Unless this Agreement Is automatically terminated as described above, this Agreement, and/or any
component CCS applicable to Fund M!!!mber. can be terminated as set fortn below. Howewr, the termination of
any single Fund program under a CCS shall not also result in the automatic termination of another pending CCS,
or this enabling Agreement if any other CCS fs stfif tn force for Fund Member. Rather, each Fund program can
only be terminated as provided in this Agreement.
a. By Either Party with 30 Days Notice before Renewal. Any CCS may be terminated by either party With
termination to be effective on any successive renewal date by giving written no1ice to the other party no later
than 30 days prior to ar.Atomatic rern.1W8I.
b. By Fund Member upon Payment of Late Notice Fee. If Fund Member rails to terminate a CCS as
provided above, It may stHI terminate participation In any Fund r;rogram prior to the renewal date by paying a
late notice fee as herein provi<ied. If Fund Member t.rminates the CCS before tt,e renewal date, but with
fewer thari 30 days' edvance written notice, Fund Member agrees to pay the Fund a late notice fee In the
amount ot 25% of the annual contribution fol' the expiring participation term. Fund Member expressly
acknowledges that the late notice fEie is not a penalty, but a reasonable approximation of the Fund's
damaiges for the Fund Member's untimely withdrawal from the progr;,m identified in the CCS. However,
lnterlOCli\l Participation Agreement
1!!111'
-1,$~
MAN"8811Elff FtlNCl
Page 1 of 6
Fund Soard Approved, April 15. 2012
Effective September,. 201.2
63
T000023
08/15/2012 17:15 8305917340 SWTJC BO PAGE 04
once the renewal term of a CCS commences, Fund Member can no longer terminate the CCS by paying a
!ate notice fee; the CCS shall renew and Fund Member shall be bound thereby,
c, By the Fund upon Breach by Fund Member.
1) The Fund may temiinete this Agreement ot any CCS based on breach of eny of the following
obligations, by giving 1O days' written notice to Fund Member of the breach; and Fund Member's failure
to cure the breach within said 10 days (ot other time period allowed by the Fund):
2) Fune! Member fails or refuses to make the payments or contrtbutions required by this Agreement;
3) Fund Member fails to cooperate and comply with any reasonable requests for Information and/or
records made by the Fund:
4) Fund Member fails or refuses to follow loss preventron or statutory compliance requirements of the
Fund. as provided in this Agreement; or
5) Fund Member otherwise breaches this Agreement.
If the Fund terminates this Agreement, or any CCS, based on breach as described above, Fund Member
agrees that the Fund will have no responslbiltty of any kind or nature to provide coverage on the terminated
Fund program post-termination. Further, Fund Member shall bear the full financial responsibility for any
unpak:I open claim and expense related to any claim, asserted or unasserted and reported or unreported,
against the Funo or Fund Member, or incurred by the agents or representaUves of Fund MembeL
In addition lo the foregoing, if termination is due, to Fund Member's failure to make required payments or
contributions, Fund Member agrees that it shall pay the Fund liquidated damag83 in the amount of 50% of
the annual contribution for the partlolpetion term Identified In the terminated CCS.
5. Contributiom;r..
a. Agreement to Pay. Fund Member agrees to pay its contribution for each Fund program in which it
participates based on a plan developed by the Fund. The amount of contribution wm be stated in the
relevant CCS and will be payable upon receipt of an invoice from the Fund. Late fees amounting to the
maximum Interest allowed by law. but not less than the rate of interest authorized under Chapter 2251,
Texas Government Code, shall begin to accrue daily on the first day followlng the due date and continue
vntil the contribr.ttion and late flites are paid in full. ff Fund Member owes the Fund payments under this
Agreement, includlng any CCS, the Fund m~y offset such amounts from any Fund Member funds held by
the Fund, regardless of program.
b. Estimated Contribution. In specified situations, the amount of oontrlbution shown In the CCS will be
identified as an estimate, The Fund re$erves the right to request an audit of updated exposure information at
the end of the CC$ participation te01'I and adjust contribullons ff Fund Member's exposure changes during
the ccs participation term. As a result of the exposure review, any additional contribution payable to the
Fund ahall be paid by Fund rvlember, and any overpayment of contribution by Fund Member shall be
returned by t~ Fund. The Fund reserves the right to audit the relevant reoords of Fund Member in order to
conduct this exposure review,
Upon expiration of each participation period, Fund Membi,r miy request e contribution adjustment due to
exposure changes. Such request must be made tn writing wtthln 60 days after the end of the participation
period. Fund Mernblilr must provide documentl!ltk>n as requested by the Fund to demonstrate that the
exposure change warrants a contribution adjustment
c. Contribution Adjustment Should the Fund's underwriting Income for any program within a given program
year be inadequate to pay the ultimate cost of d:ail'il$ incurred for that year, the Fund may collect an
adjusted contribution from any current or former Ff,lfld Member if that Fund Member's contribution is
Inadequate to pay the Fund Member's claims incurred during that year,
lnferlocal Participation Agreement
Fund Board Approwid, April 16, 2012
Effective Se,ptembar 1, 2012
64
T000024
08/16/2012 17:16 8305917340 swrJcBci PAGE 05
6. Contribution and Coverage Summary. Fund Member agrees to abide by each CCS that governs its
participation. A CC$ will incorporate the program specific coverage document, if any, which sets forth the scope
of coverage and/or services from the Fund. A CCS for a Fund program will state the participation term. After
Fund Member·, initi~I execmlon of a CCS, 'the CC$ wm automablly renew .annually, unless terminated In
accordance with this Agreement. Any renewal containing a change In the amount of contribution or other terms
will be subject to the Amendment by Notice process de$Crlbed in this Agreement
7. Loss Prevention. The Fund may provide loss prevention services to Fund MGmbeL Fund Member agrees 10
adopt the Fund's reasonable and customary st!lnderds for loss prevention and to cooperate in implementlng any
and all reasonable loss prevention and statutory comp!iance rocornmendations or requirements.
8. Other Duties of Fund Member.
a. Standards of Performance. Time shall be of the essence In Fund Member's reporting of any and all claims
to the Fund, payment of any contrlbUtlons or monies due to the F'vnd, and delivery of any written notices
under this Agreement.
b. Claims Reporting. Notice of any claim ml.l8t be provided to the Fund no more than 30 days after Fund
Member knows or should have known of 111e claim or circumstances ~ding to the claim, unless a different
reporting requirement rs required by law or provided for in the CCS. Failure by Fund Member to timely report
a claim may result In denial of coverage or payment of fines or penalties imposed by ~w or regulaiory
agencies. If the Fund advances payment of any fine or penalty arising from Fund Member's late claim
reporting, Fund Member will reimburse the Fund for all such costs.
9. Administration of Claims. The Fund or its deslgnee agrees to administer all claims for which Fund Member has
coverage after Fund Member provides timely written notice to the Fund. Fund Member hereby authorizes the
Fund or its design~ to act in all matters pertaining to handling of claims for which Fund Member has coverage
pursuant to this Agreement. Fund Member expressly agrees that the Fund has sole authority in all matters
pertaining to the administration of claims and grant$ the Fund or Its designee full decision-making authority in an
matters, including without limitation, discussions with cl.aimants and their attorneys or other duly autho!'!zed
representatives. Fund Member further agrees to be fully cooperative in supplying any informanon reasonably
requested by the Fund in the handllng of claims. All decisions on individual claims shall be made by the Fund or
Its des;gnee. including, without Hmitation, decisions concerning claim values, payment due on the claim,
settlement, subrogation, I1tigartion, or appeals.
10. Exceu CoveragefReinsurance. The Fund, In i1& sole dmcretion, may pun::h.ase exee$$ coverage or reinsurance
for any or all Fund programs. In the event of a !Wbstantlal chang& in terms or cost of such coverage, the Fund
reserves the right to make adjustments to the terms and conditiOM ¢f a CCS es allcrwed by the Amendment by
Notice process under this Agreement If any relnsurer, stop lo$$ c~mier. and/or excess coverage provider falls to
meet 11s obligations to the Fund or any Fund Member, the Fund is not responsible for any payment or any
obligations to Fund Member from any rein$urer, stop loss carrier, or exoess coverage provider.
11. Subrogation and Assignment of ffights. Furn;! Member, on its own behalf and on behalf of any person entitled
to benefits under this Agreement, aMigns all subrogation lights to the Fund, The Fund has the right, in rts sole
di~retlon, without notice to Fund Member. to bring all claims and lawsuits in the name of Fund Member or the
Fund. Fund Member agrees that all subrogation rights and recoveries belong first to the Fund, up to the amount
of benefits. expenses, and ~omeys' fees Incurred by the Fund, wlth the balance. if any. being paid to Fund
Member, unless otherwise specm~lly $hilted in the Agreement. Award of funds to any person antltl&d to
coverage, whether by /udgment or settlement. shell be conclusive proor that the Injured party has been made
whole. Fund Member's rlght to be made whole is expressly super$eded by the Fund's subrogation lights. If Fund
Member procures alternate coverage for a risk covered by tht Fund, the latter acquired coverage shall be
deemed primary coverage concemlng that risk.
12. No Waiver of Subrogation Rights. Fund Member shall do ooltiing to prejudice or waive the Fund"s existing or
prospective subrogation rights under this Agreement. lf Fund Member has warve:d any subrogaticm right without
first obtaining the Fund's written approval, the Fund shall be entitled to recover from Fund Member any sums that
it would have been able to recov~r absent such waiver. Recoverable amounts include attorneys' fees, costs, and
expenses.
lnuirlocal Participation Agreement
Fund Board Approved, April 15, 2012
Effectiw Septemoor 1. 2012
65
T000025
08/15/2012 17:15 8305917340 9,,..lTJC BO PAGE 06
13. Appeals. Fund Member shall have the rtght to appeal any written decision or recommendation to the Fund's
Board of Trustees, and the Board's determination writ be final. Any appeal shall be made in writing lo the Board
Chair within 30 days of the decision or n,commendati<>n,
14. Bylaws, Policies, and Procedures. Fund Memoer agrees to abide by the Bylaws of the Fund, as they may b$
amended from time to time, and any and aH written policies and procedures establlshed by the Fund (which are
available from the Fund upon wdttliln re-quest). Ifs change is made to the Fund's Bylaws, written policies or
procedures which conflicts with or impairs a CC$, such change wHI not apply to Fund Member until the renewal
of such ccs, unless Fund Member specifically agrees otherwise.
15. Payments. Fund Member represents and warrants ttiat an payments required under this Agr~ment of Fund
Member shall be made from its available current revenues.
16. Cooperation and Aocess. Fund Member agrees to cooperatt and to comply in a timely manner With all
reasonable requests for information and/or records made by the Fufld. Fufld Member further agrees to provide
complete and accurate statements of material facts, to not misrepresent or omit such facts, engage in fraudulent
conductor make false statements to the Fund. The Fund reserves the right to audit the relevant records of Fund
Member to determine compliance with this Agreement.
17. Fund Mem~r• Designation cf Coordinator. Fund Memb~ agrees to designate a ooordfnator ("Program
Coordinator") for Fund Member on this Agreement or any CCS executed by Fund Member. Fund Member's
Pf09ram Coordinator shall have express authority to represent and to bind Fund Member. and the Fund will not
be requited to contact any other individua! regarding matters arlslr,g from or related to this Agreement. Fund
Member reserves the right to c:hs:tnge its Progr-11m Coordinator as needed, by giving written notice to the Fund;
such notice is not effective until actually ra~1ved by the Fund. Notic:tt provided to the Chief Executive Officer of
Fund Member shall also serve as not1oa 10 the Program Coordlnetor.
18. Security of Documents. Under this agreement the Fund may grant Fund Member access to sensitive or
protect&d information. Fund Member agrees to assume the responsibility for maintaining the security of this
information and to take an reasonable steps to avoid unauttiorized disclosure of this information.
19. Insurance Terminology. The Fund is not "ins1.1ranoe*, but is instead a mechanism through which eligible
govemment:al entities join together to oollectlvely self..Jnsure and administer certain risk exposures. Any
referl!)nce in this Agreement to ~n insurance term or concept is coincidental, is not intended to characterize the
Fund as "insurance" as defined by law. shall be deemed to ipply to Hlf•insurance, and is not to be construed as
being contrary to the self-insurance concept.
20. Representation. Fund Member autliorl:zes the Fund to represent Fund Member in any lawsuit, dispute, or
proceeding arising under or relating to any Fund program and/or coverage in which Fund Member participates.
The Fund may exercise this right ln its sole discretion and to the fullest extent permitted or authorized by law.
Fund Member shall fully cooperate with th& Fund, its deslgnee, and the Fund's chosen counsel, includlng,
without limitation, Gupplylng any information necessary or relevant to the lawsuft, dispute, or proceeding in a
timely fashion. Subject to specific rev0vation, Fund Member designates the Fund to act as a class representative
on its behalf in matters arising out of this Agreement.
21. Members' Equity. The Fund Board, in Its sole discretion, may declare a distribution of the Fund's members'
equity to Fund Members. Members' equity belongs to the Fund. No individual Fund Member rs entitled to an
indMdual allocation or portion of members' equity.
22. Entire Agreement. This Agreement:, together with the Restated lnterlocal Agreement, BylalNS and CCS'i:; that
are 1n effect as to Fund Member from time to time, represent and contain the complete understanding and
agreement of the Fund emd Ful'ld Member, end there art r'\O rep~tions. agr&<lll'l'lents. arrangements, or
undertakings, oral or written, between the Fund and Fund Member other than those set forth in this Agreement
duty executed in writing. In the event of conflict between the terms of this Agreement and the Restated lnterlocal
Agreement. Bylaws or any CCS, the specific terms of the later adopted agreement shall prevail to the extent
necessary to resolve the conmot This Agreement replaces all previous lnterlocal Participation Agreements
between the Fund and Fund Member. NotWlthstandlng the foregoing, th'8 Agreement does not supersede any
unexpired participation term or pending claim under an existing agreement between Fund Member and Fund,
&11™8~ rmoooca! Participation Agreement
l!J!!!!!i' M A ~ 1'VNtl
Page 4 af6
Fund Soard Approved, April 15, 2012
Effective September 1. 2012
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23. Amendment by Notice. This Agreement, including any of its component CCSs or coverage documents, may be
emended by the Fund, in writing, by providing Fund Member with written notice before the earlrer of (i) the
effectrve dat¢ of the amendment or (ii) the date by which Fund Member can terminate without payment of late
notice fees or liquidated damages, Unless this Agreement expressly provides otheiwlae, an amendment shall
only apply prospectively and Fund Member shall have the right to terminate this Agreement, or a componeni
CCS to which the amendment applies, befote the amendment becomes effective. as provided in this Agreement
If Fund Member fails to give the Fund timely written notice of termination, Fund Member shall be deemed to have
consented to the Fund's amendment and agrees to abide by and be bound by the amendment, without necessity
of obtaining Fund Member's signature.
The Fund may amend this Agreement or any CCS effective upon renewal. Amendments may oe for any reason
Including changes to the terms or contribution 3mount.
Toe Fund may also amend this Agreement or any CCS, effective during the term of a CCS, for any reason
including but not Hmlted to the foHowlng:
a. State or federal governments, including any court, regulatory body or agency thereof, adopt a sta1ut1$, rule.
decision, or take any action that would substantially impact the rights or financial obligations of the Fund as it
pertains to this Agreement, or any Fund program or CCS.
',!
b. The terms of the Fund's stop-loss or excess coverage or reinsurance change substantially,
If the Fund exercises the option to amend the Agreement or any CCS dUrit"J9 the tem, of a CCS and prior to
renewal, the Fund shall give Fund M¢mber 30 days advance written notice, Fund Member Will then have the right
during the 30-<lay period to giVe the Fund written ootice of termination of the applicable Fund program, effective
upon the expiration of the 30-day notice perfod (or longer period if so providtd by the F1,md in writing).
24. Severablllty; tnterpretation. lf any portion of this Agreemsnt shall be declared ilfegal or held unenforceable for
any reason, the remaining portions shall continue in full force end effect. Any questions of particular
interpretation shall not be Interpreted against the drafter of this Agreement, but tather in accoroance With the fair
meaning theroof. ,
25. Governing Law; Venue; Attorneys' Fees, This Agreement shall be governed by and construed In accordance
with the laws of the State of texas, Without regard to the oonfflcts of ~ principles of such state. Venue for the
adjudication or resolution of any dispute arising out of or rel.atlng to this Agreement shall lie in Travis County,
Texas, unless otherwise mandated by law. In the event of a lawsurt or formal adjudication be~en Fund
Member and the Fund, 1he prevailing party is entitled to recover reasonable and necessary attorneys' fees that
are eqt.1itable and just
26. Waiver. No provision of this Agreement will be deemed waived by either party unless expressly waived In writing
by the waiving party, No waiver shalf be implied by delay or any other act or omission. No waiver by either party
of any provision of this Agreement shall be deemed a waiver of such provision with respect to any subsequent
matter relating to such provision.
27. Assignment. This Agreement or any duties or obllgations imposed by this Agreement shall not be assignable by
Fund Member WithOllt the prior written consent of the Fund.
28. Authorization. Sy the execution of this Agreement, the undersigned Individuals warrant that trn;iy have been
authorized by all requisite governance ection to $nWr into and to perform the terms and conditions of tt'lis
Agreement.
29. Notice. Unle$s e-xpressly stated otherwise in this Agreement, any notice required or provided under this
Agreement by either party to the other party sMII be in writing and shall be sent by first class mall, postage
prepaid or bye carrier for overnight service or by electronic means typicalty used In commerce. Notice to the
Fund shall be sufficient If made or addressed as follows: TASB Risk Management Fvnd, P.O. Box 301, Austin,
Texas 78767•0301, or tasbrmf@tasbrrof. oro. Notice io a Fund Member shall be sufficient if addressed to the
Program Coordinator or Fund Member's Chref Exec:utt~ Officer and mailed to Fund Member's physical or
electronic address of record on file with the Fund,
lnte11CC<1I Partlclpatlon Agreement
~und Board Approved, April rn, 2012
Pages of a Effect!ve Septem t>er 1, 2012
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30. Signaturns/Counterparts. The faiture of a party to provide an original, manually executed signature to the other
party shall not affect the validity or enforceability of this Agreement. either P411rty may rely upon a facsimile or
imaged signature as If It were an original. This Agreement may be executed In several separate counterparts,
each of which shall be en original and all of which shall constitute one and the same instrument.
WHEREFORE, the parties agree to be bound by this Agreement by signing below.
Date:
Date:
F'rinted Name of Fund Member's
Authorized Representative
lntertoc:al Partlclpatlon Agreement
.TMa nK
M,IINAGIEMSW'I' R1NO Fund Board Appl'Qved, April 15, 2012
Page 6 of 6 Effective September 1. 2012
~ - ----------------------·--
68
T000028
Exhibit B
69
TASB"' TASB Risk Management Fund • 12007 Research Blvd., Austin, Texas 78759-2439
RISK P.O. Box 301 • Austin, Texas 78767-030'1 • 800.482.7276 • tasbrmf.org
FUND /\clministered /Jy the Texas /\ssociation of School Boards
Southwest Texas Junior College
Contribution & Coverage Summary (CCS)
Participation Period: September 1, 2019 through August 31, 2020
PROPERTY Per Occurrence Deductible Contribution
Risk of Direct Physical Loss to Buildings, Personal Property, and Other Limit
Structures
All Perils Except Wind, Hurricane, and Hail $25,000 $116,585
Blanket
Replacement Cost
Wind, Hurricane, and Hail $124,721,000 $50,000 Included
Flood $2,000,000 $50,000 Included
Earthquake $2,000,000 $50,000 Included
Crime $100,000 $5,000 Included
Additional Sublimits and/or Deductibles
Sublimit for Wind, Hurricane, and Hail Loss to single ply $1,000,000 $50,000 Included
membrane roofs and accompanying roof systems; all other
deductibles apply
Equipment Breakdown
Equipment Breakdown $100,000,000 $25,000 Included
SCHOOL LIABILITY Per Deductible Contribution
Claim/Occurrence
Limit
Professional Legal Liability $2,000,000 $15,000 $17,991
Subject to $2,000,000 Maximum Annual Aggregate
General Liability $2,000,000 $0 Included
Employee Benefits Liability $100,000 $0 Included
PRIVACY & INFORMATION SECURITY Deductible Contribution
$100,000 Limit for Privacy Liability $0 Included
$100,000 Limit for Claim/Event Response Services
Notification costs for up to 10,000 individuals
TASB Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 1 of 6
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AUTOMOBILE Limit Deductible Contribution
Automobile Liability $1,000,000 $1,000 $18,262
$1,000,000 Combined Single Limit
Automobile Physical Damage $6,933
Comprehensive Actual Cash Value $1,000 Included
Collision Actual Cash Value $1,000 Included
WORKERS' COMPENSATION AGGREGATE DEDUCTIBLE
Estimated Payroll and Contribution - Subject to Audit
Classification Estimated Payroll Net Annual Estimated
Rate Contribution
7380 - Bus Drivers $0 0.003297 $0
7720 - Police Officers $129,083 0.004108 $530
8810 - Clerical $1,950,501 0.000216 $421
8868 - Professional $16,093,911 0.000584 $9,399
9101 - All Other $1,316,855 0.004324 $5,694
Totals $19,490,350 $16,044
A. Estimated Contribution $16,044
Claims Liability Calculation B. Aggregate Deductible Rate 0.002044390
C. Estimated Payroll per above $19,490,350
D. Estimated Claims Liability (B x C) $39,846
Estimated Maximum Program Cost
E. $55,890
(A+D) for the Participation Period
Ancillary Coverage Per Occurrence Deductible Contribution
Limit
School Crisis Coverage $250,000 $0 $0
$175,815
TOTAL CONTRIBUTION
I
This is not an Invoice.
TASS Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 2 of 6
71
T000030
Conditions
Property
Named/Numbered Windstorm: The term "Named/Numbered Windstorm" is defined as all loss and damage directly caused by,
resulting from or arising out of Windstorm as named or numbered by the National Weather Bureau, National Hurricane Center or
any recognized meteorological authority, including but not limited to loss or damage caused by wind driven rain, flood, storm
surge, wave wash, surface water, overflow of bodies of water, or spray from any of these.
The term 'Tier 1" shall mean the Texas Counties of Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jackson,
Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Refugio, San Patricio and Willacy.
The term "Tier 2" shall mean the Texas Counties of Bee, Brooks, Fort Bend, Goliad, Hardin, Hidalgo, Jasper, Jim
Wells, Liberty, Live Oak, Newton, Orange, Victoria and Wharton.
The term "Harris County" shall mean the Texas County of Harris.
Location: A single street address where Covered Property is sited.
Flood Zone Exclusions: As to the Flood endorsement, Fund Member properties are excluded from coverage if they are located
in certain Special Flood Hazard Areas (SFHA) identified on the Flood Insurance Rate Map. Fund Member property in the
following SFHAs are excluded: Zone A, Zone AO, Zone AH, Zones A1-A30, Zone AE, Zone A99, Zone AR, Zone AR/AE, Zone
AR/AO, Zone AR/A1-30, Zone AR/A, Zone AR/AH, Zone V, Zone VE, Zone VO, and Zones V1-V30. Fund Members with such
properties should seek coverage under the National Flood Insurance Program (NFIP) or other Flood Program.
Other Limits: If more than one Per Occurrence Limit may be applicable, the Fund shall determine which limit will apply.
Statement of Values: Fund Member has provided the Fund with the most current and accurate statement of values for all
applicable property, including a complete and accurate listing of vehicles owned by the Fund Member. Fund Member agrees to
allow the Fund to conduct property appraisals of the Fund Member's property on a periodic basis and agrees to accept values
provided by the Fund.
Salvage: The Fund will have the right, in its sole discretion, to exercise rights of salvage to any damaged property paid for or
replaced under the terms of this Agreement.
Claims Reporting: Fund Member will provide to the Fund timely notice of all claims as required in the lnterlocal Participation
Agreement and the Fund's Coverage Agreement.
Single Ply Membrane: 'Single Ply Membrane' is synthetic roofing material that includes but is not limited to EPDM, TPO, and
PVC membranes.
Liability
Prior Acts: Fund Member certifies that all known or reported acts for which it is reasonably believed may result in a legal claim
against the Member, have been fully disclosed. Additionally, Fund Member acknowledges that this coverage excludes any claims
arising from such known or reported acts. This Agreement does not void coverage afforded to Fund Member under any previous
Fund Agreement.
Claims Reporting: Fund Member will provide to the Fund timely notice of all claims as required in the lnterlocal Participation
Agreement and the Fund's Coverage Agreement.
TASS Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 3 of 6
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Automobile
Statement of Values: Fund Member has provided the Fund with the most current and accurate statement of values for all
applicable property, including a complete and accurate listing of vehicles owned by the Fund Member. Fund Member agrees to
allow the Fund to conduct property appraisals of the Fund Member's property on a periodic basis and agrees to accept values
provided by the Fund.
Salvage: The Fund will have the right, in its sole discretion, to exercise rights of salvage to any damaged property paid for or
replaced under the terms of this Agreement.
Claims Reporting: Fund Member will provide to the Fund timely notice of all claims as required in the lnterlocal Participation
Agreement and the Fund's Coverage Agreement
Workers' Compensation - Aggregate Deductible
Benefit Limits: Workers' Compensation benefits paid to Fund Member's employees under this Agreement will be as defined in
the Texas Workers' Compensation Act (the Act). The Fund is responsible for claims payments as reflected in this CCS. This
Agreement does not cover the defense of any suit or claim against a Fund Member except a workers' compensation claim by an
eligible employee or former employee of Fund Member for the payment of statutory workers' compensation benefits.
Cooperation: Fund Member agrees to use the Fund's contractors for services related to the administration of claims and to
follow the Fund's election under Section 504.053 of the Labor Code to direct care through the Political Subdivision Workers'
Compensation Alliance.
General
Coverage: Coverage terms and limits provided are as set out in this CCS and the Fund's Coverage Agreement for this
participation period.
Definitions: Any terms not defined in this CCS will use the definition for that term from the corresponding Fund coverage
agreement.
Payment: The Fund Member agrees to pay contributions based on a plan developed by the Fund. All contributions are payable
upon receipt of an invoice from the Fund. The Fund shall determine the applicable program for each contribution. Termination
under this Agreement of any program shall not affect the remaining programs.
Termination: This CCS may be terminated by either party with termination to be effective on any successive renewal date by
giving written notice to the other party no later than 30 days prior to automatic renewal in accordance with Section 4(a) of the
lnterlocal Participation Agreement. If this CCS is not terminated, the renewal CCS becomes effective on the automatic renewal
date and the member shall be bound by the terms of the renewal CCS.
TASS Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 4 of 6
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Program Coordinators
Coordinator:
The Fund Member is required to designate a Program Coordinator (Coordinator) with express authority to represent and bind the
Fund Member in all program matters. Below are the current program coordinators as we have listed.
Property - Oscar Garcia
Liability - Oscar Garcia
Automobile - Oscar Garcia
Workers' Compensation - Oscar Garcia
If a Coordinator's name and contact information is not provided above, the current designated Coordinator and contact
information will need to be completed below:
Program Name Title Address Phone Email
Property
Liability
Automobile
Workers'
Compensation
TASB Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 5 of 6
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T000033
Fund Member Authorization:
I approve this Contribution and Coverage Summary (CCS) and certify that this information is correct. I affirm that I
am duly authorized to approve this CCS and that I have read and agree to this CCS and the lnterlocal Participation
Agreement.
Authorized signature □ a~ I
<ilc,, C c_<(, {:,'ayc,'o._
Printed name
TASB Risk Management Fund Southwest Texas Junior College
Auto, Liability, Property, & Workers' Compensation CCS June 25, 2019
RP232501-2019-1 Page 6 of 6
75
T000034
PROPERTY COVERAGE AGREEMENT
PART A
GENERAL
I. The TASB Risk Management Fund (the Fund) provides coverage for property risk. This coverage relres on
information provided by the Fund Member and is contingent on the member's full compliance with the
Agreements: collectively, this Property Coverage Agreement (Coverage Agreement), the Contribution and
Coverage Summary (CCS), and any other agreements between the Fund and the Fund Member relating to
coverage under this Coverage Agreem~nt.
II. This Coverage Agreement is a risk sharing and risk participation agreement, and not a contract of insurance. The
Fund is not an insurance company and its members are not insureds. Rather, the Fund is a self-insured risk pool
through which its members agree to share risks and actively participate in their contractual obligations to lessen
risk and cost for all members. For an agreed upon contribution, the Fund provides coverage for Direct Physical
Loss (Loss) to Covered Property resulting from an Occurrence during the Participation Period in excess of any
deductible. The provisions of the Agreements may limit or exclude coverage for any Loss. The Fund, in its sole
discretion, shall determine to what extent, if any, coverage applies. The Fund Member and the Fund agree that,
as sophisticated entities, any interpretation of the Agreements' coverage provisions shall reflect the risk sharing
nature of the Fund's purpose and the Fund Member's rfsk partidpation obligations contained in the Agreements,
and will be decided in favor of the member sharing risk with the Fund rather than transferring risk to the Fund.
Ill. The following balded terms are defined and applicable throughout this entire Coverage Agreement:
A. Direct Physical Loss (Loss) means sudden, unanticipated, and unforeseen Damage or Aesthetic Impairment
resulting from an Occurrence.
B. Damage means physical harm to Covered Property that substantially reduces its ability to function. Damage
does not include physical harm that does change the appearance of Covered Property but does not
substantially reduce the service, usefulness, or utility of such Covered Property, Final determination of the
service, usefulness, or utility of Covered Property shall be at the sole discretion of the Fund.
C. Aesthetic Impairment is not Damage but is physical harm that conspicuously and substantially disfeatures
Covered Prol)erty w ithin an easily observable public view. Final determination of Aesthetic Impairment shall
be at the sole discretion of the Fund.
D. Occurrence means any single incident or event; or, a series of related incidents or events resulting from the
original Occurrence. However, an incident or event involving wind or hail that occurs during a continuous
pertod of 72 hours shall be deemed a single Occurrence.
E. Participation Period means the effective dates of coverage under this Coverage Agreement as stated in the
ccs.
F. Covered Property means the Fund Member's legal interest in Building(s), Personal Property, and Other
Structures as outlined below:
1. Building(s) means:
a. A permanent building structure;
b. Everything that is permanently part of the building;
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c. Additions and extenslons attached to the building; and
d. Fixtures, machinerv, and equipment constituting a permanent part of, and pertaining to the service
of, the buildYng.
2. Personal Property means items or property owned by the Fund Member at any location. Personal
Property includes but is not limited to!
a. Building contents;
b. Furniture and fixtures;
c. Books and educational mate.rials or other supplies;
d. Tools and sports equipment;
e. landscape and maintenance equipment;
f. Electronic data processing equipment and media such as servers, computers, monitors, laptops,
tablets, disc drives, dists, and other media on which data is stored;
g. Self-propelled motor driven equipment (such as lawnmowers, golf carts, all-terrain vehicles,
forklifts, or tractors) that is not registered for use on public roads; and
h. Personal property of others under the Funq Member's care, custody, and control ttirougn a written
lease or rental agreement.
3. Ottier Structures means a structure, other than a Building, that is located outdoors and used in
connection With the operattons of the Fund Member. Other Structures include, but are not limited to:
a. Portable buildings, sheds, covered walkways, and awnings;
b. Signs, whether or not attached to a Building or structure;
c. Stadiums and athletic fields, including bleachers, grandstands, and natural or artificial grass surfaces
that serve as playing fields for school eve.nts;
d. Lights, lighting supports, and flagpoles;
e. Radio and television towers and antennas;
f. Playground equipment;
g. Fences or retaining walls not constituting a part of a Building; and
h. Swimming pools, including diving platforms and related equipment.
G. Pollutant means any solid, liquid, gaseous, or thermal irritant or contaminant, including but not limited to
petroleum products, asbestos, smoke, vapor, lead, soot, fumes, acids, alkalis, electromagnetic radiation,
Mold, chemicals, and waste. Waste includes but fs not limited to materials to be recycled, reconditioned, or
reclaimed.
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H. Mold means any type or form of fungus, including mold or mildew, and any mycotoxins, spores, scents, or
byproducts produced or released by fungi.
PARTS
PROPERTY COVERAGE
I. The Fund will pay for Direct Physical Loss (Loss) to Covered Property resulting from an Occurrence during the
Participation Period that is in excess of all applicable deductibles and within t he limits of coverage shown in the
CCS orin this Coverage Agreement All applicable deductibles apply separately. All sublimits are within the overall
limits of this coverage unless otherwise indicated.
A. Prior to payment for Covered Property subjected to Loss, the Fund M ember shall notify the Fund in writing
of their irrevocable decision to accept one of two settlement options under the provisions of this Part B: i) to
repair or replace the Covered Property subjected to Loss, or ii) to receive a payment for the Actual Cash
Value (ACV) of the Covered Property subjected to Loss. This mandatory election by the Fund Member shall
occur as soon as practicable, but in no event later than 180 days from the date of the Loss. Should the Fund
Member elect to repair or replace under option 'i,' the Fund will make contemporaneous payments for the
Loss on a schedule agreed to by the Fund and the Fund Member and related to the members' contractual
obligations for any repair or replacement. Alternatively, should the member elect to receive the ACV under
option 'ii,' this payment will be issued immediately. ACV is computed by subtracting the depreciation of the
Covered Property subjected to Loss from the actual replacement cost of the Covered Property, using
material of like kind and quality at the time of Loss. Repair or replacement must be complete within 365' days
of the above election notice to the Fund, unless an extension is requested in writing by the Fund Member
and granted by the Fund within this same period. If repair or replacement is not complete and an extension
not requested or granted during this period, payments made prior to the end of this period will be the full
and final payment for the Loss. In no event will the Fund pay more than the actual cost incurred by the Fund
Member to repair or replace, with material of like kind and quality, the Covered Property subjected to Loss,
or pay more than the limits outlined in this Coverage Agreement and applicable CCS. Any discovered excess
payment made by the Fund shall be due immediately to the Fund. The maximum paid for repair or
replacement cost shall not exceecj the lowest amount of the following:
1. The limit(s) or sublimit(s) of liability under this Coverage Agreement or applicable CCS;
2. The actual and necessary cost to repair or replace the Coveted Property subjected to Loss with material
of like kind and quality and for the same, use and occupancy of the premises; or
3. The amount actually and necessarily spent to repair or replace the Covered Property subjected to Loss.
PARTC
LIM ITED COVERAGE, EXCLUDED COVERAGE, ANO EXCLUDED LOSS
I. The Fund will pay for Loss under Limited Coverage, Excluded Coverage, or Excluded Loss as follows:
A. For paragraphs notated as "Limited Coverage," the Fund will pay for a Loss that is in excess of all .applicable
deductible amounts, within the per Occurrence limit, within the sublimits and conditions described in that
paragraph, and unless otherwise excluded:
1, Limited Coverage- New construction of or renovation to Buildings and Other Structures: The Fund will
pay up to $1,000,000 for Loss to Buildings and Other Structures while under new construction or
renovation by the Fund Member's employees. This limit applies to Loss arising from the work, materials,
and activities related to the new construction or renovation, or any portion thereof, by the Fund
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Member's employees. Loss is excluded if it arises from new constructfon of or renovation to Buildings
and Other Structures under written contract with and performed by third parties or is covered under
any other coverage or insurance policy. Coverage under t his paragraph does not extend to materials,
supplies, tools, and equipment of others while located on the premises, unless otherwise covered under
Part A, 111. F.2.h ..
2, Limited Coverage-Landscaping, athletic field surfaces, or grass surfaces: The Fund w!ll pay for Loss to
landscaping, athletic field surfaces, or grass surfaces as follows:
a. For landscaping, the Fund will pay up to $1,000 for the removal and replacement for the total Loss
of any single tree, shrub, or landscaping plant caused by vehicles, vandalism, theft, fire, wind, haTI,
or other covered weather-related Occurrence. The Fund will pay no more than $25,000 per
Occurrence under this sub-paragraph, and this coverage does not apply to Loss resulting from
disease, drought, heat, freezing, flood, improper maintenance, or Jack of maintenance.
b. For athletic field surfaces (either natural or artificial) or grass surfaces, the Fund will pay for Loss
unless caused by disease, drought, heat, freezing, flood, improper maintenance, or lack of
maintenance.
3. Limited Coverage- Articles of art, statues, or antiques: The Fund will pay up to $100,000 for Loss to art,
statues, antiques, or other items of historical or sentimental value including but not limited to paintings,
etchings, photographs, pictures, tapestries, antique furniture, rare or out-of-print books, antique silver,
rare glassware, awards, or other rare or hard to replace items ..
4. Umited Coverage- Debris removal: The Fund wfll pay for debris removal only if 1t arises out of an
otherwise covered Loss to Covered Property. The limit of coverage for debris removal will be the
reimbursement of actual cost up to 25 percent of the covered Loss.
5. Umited Coverage- Increased cost due to code enforcement or compliance: The Fund will pay an
additional amount on an otherwise covered Loss to comply with any building or construction code,
ordinance, or law that regulates repair, reconstruction, or demolition, The limit of this coverage will be
the reimbursement of actual cost of such compliance up to 10 percent of the amount of the covered
Loss per structure, not to exceed $1,000,000 per Occurrence.
6, Limited Coverage-Pollutant clean-up: The Fund Will pay up to $100,000 to extract Pollutants from land
or water located on Fund Member's Covered Property if the Fund Member incurs such expenses arising
out of an otherwise covered Loss.
7. Umited Coverage-Electronic records and data: The Fund wfll pay up to $50,000 for the actual cost of
repla,ement or recovery of information stored on electronic data processing equipment and media,
such as records, data, or software, resulting from a covered Loss.
8. Limited Coverage- EXtra expense and loss 1n revenue: The Fund wHI pay up to $500,000 to cover the
actual costs incurred by the Fund Member for extra expense or loss in revenue resulting directly from
the interruption of operations as a result of an otherwise covered Loss. Extra expense means additional
costs that a Fund Member incurs to continue operations while (ts Covered Property is being repaired or
replaced after a covered Loss. Loss in revenue means a reduction in income to the Fund Member from
any source excluding state and federal funding, taxes, and public or private grants. The extra expense
and loss in revenue limit cannot be used to pay for the cost of repairing or replacing any of the property
or any consequential loss.
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9. Limited Coverage-Food spoilage: The Fund will pay up to $100,000 to cover the actual cost for
replacement of food and beverage that is spoiled resulting from a covered Loss.
10. Limited Coverage-Aesthetic Impairment: The Fund will pay up to $100,000 per Occurrence for physical
harm considered an Aesthetii: Impairment to Covered Property resulting from an otherwise covered
Loss. In the event such Aesthetic Impairment affects Covered Property that is a metal roof, the Member
may elect to waive Its right to this payment and instead be paid for the Aesthetic Impairment at 50% of
final repair or replacement cost of a metal roof up to $1,000,000 per Occurrence, with no A.CV payment
available.
11. Limited Cove~age-Valuable papers and records: The Fund wlll pay up to $50,000 for Loss to vital records
such as Written, printed, or otherwise inscribed documents and records, fncluding books, maps, films,
drawings, abstracts, deeds, mortgages, and manuscripts, provided the documents were appropriately
secured and maintained.
12. Limited Coverage-Animals: The Fund will pay up to $25,000 for Loss to livestock owned by the Fund
Member. The Fund will not pay for Loss caused by illness or disease, neglectful care, or mysterious
disappearance. The amount the Fund will pay will be based on the fair market value of comparable
livestock at the time of Loss. The payment will not consider competitive livestock show value.
B, For paragraphs notated as "Excluded Coverage," the Fund does not provide coverage for the described
property under this Coverage Agreement, unless otherwise fndicated fn that paragraph :
1, Excluded Coverage-Vacant Buildin_gs or Other Structure: if a Building or Other Structure is vacant and
the Loss is caused by arson, vandalism, sprinkler leakage, glass br.eakage, water, theft, or attempted
theft, coverage is excluded unless coverage for the vacant Building or Other Structure has specifically
been extended in writing by the Fund. "Vacant" means a Building or Other Structure is abandoned, is
no longer capable of intended Fund Member operations, or is set for dernolishrnent. Personal Property
wi thin a vacant Building or Other Structure is excluded if Loss occurs under this paragraph.
2. Excluded Coverage-Property sold by the Fund Member under conditional sale, trust agreement,
installment plan, or other deferred payment plan after delivery to customers.
3. Excluded Coverage-Accounts, bills, currency, deeds, evidences of debt, money or securities, furs,
jewelry, predous metal, or precious stones, except as covered' under Crime and' Employee Dishonesty
Endorsement.
4. Excluded Coverage -Property· of others, except personal property that is under the care, custody, and
control of the Fund Member through a written lease or rental agreement.
5. Excluded Coverage- Any self-propelled motor driven equipment registered for use on public roads; or
any automobiles, motor vehicles, trailers, or semi-trailers, whether registered or riot
6. Excluded Coverage-Land.
7, Excluded Coverage- Aircraft or motorized watercraft, including their motors, egulpment, and
accessories. This exclusion shall not apply to drones or Unmanned Aerial Vehicles.
8, Excluded Coverage-Transmission and distribution lines of every type except when on the Fund
Member's premises.
9. Excluded Coverage- Offshore oil rigs, platforms, and property contained thereon.
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10. Excluded Coverage- Dams or dfkes.
11. Excluded Coverage-Growing crops.
C. For paragraphs notated as "Excluded Loss," the Fund will not provide coverage for Loss caused directly or
indirectly by the described Occurrence, unless otherwise indicated in that paragraph :
1, Excluded Loss-Loss caused by rain, snow, sand, or dust, whether driven by Wind or not, unless the
Building sustains a Loss to roof or walls resulting from an Occurrence.
2. Excluded Loss-Loss caused by animals, birds, vermin, or termites or other insects.
3. Excluded Loss-All Loss to Covered Property arising out of Named and Numbered Windstorm in
counties located in Tier 1 and Tier 2 or in Harris County.
4. Excluded Loss- Loss caused by flood, $lirface water, waves, tidal water or tidal wave, storm surge,
overflow of streams or·other bodies of water, or spray from any of the foregoing, all whether driven by
wind or not.
5. Excluded Loss-Loss caused by water below the surface of the ground, including water that exerts
pressure on, or flows, seeps, or leaks through, any sidewalks, driveways, foundations, walls, basements,
pavement, Windows, doors, or any other openings in Covered Property. If an otherwise covered Loss
ensues, coverage will extend to the .ensuing loss.
6. Excluded Loss-Loss caused by continuous or repeated seepage, leakage, penetration, transpiration, or
intrusion of water or steam from any system of heating, air conditioning, automatic fire protective
sprinkler, or plumbing, or from any appliance.
7, Excluded Loss-l oss caused by earth movement, including but not limited to earthquake, landslide, or
mudflow, or earth s[nking, rising, or shifting.
8, Excluded loss-toss caused by sett ling, swelling, cracking, shrinkage, bulging, or expansion of any
pavements, foundations, walls, floors, roofs, or ceilings.
9. Excluaed Loss-loss caused by faulty workmanship to, the use of faulty or defective materials with1 or
inadequate maintenance to ahy property on or off the described premises.
10. Excluded Loss-Loss caused by faulty or inadequate planning, zoning, site preparation, development,
design, remodeling, or construction.
11. Excluded Loss-Loss caused by wear and tear, deterioration, rust, corrosion, erosion) wet or dry rot, or
inherent or latent defect.
12. Excluded Loss- Loss caused by delay, interruption of operations, or consequential loss of any nature,
except as otherwise allowed by this coverage.
13. Excluded Loss- Loss caused by mechanical breakdown, includ!ng rupture or bursting caused by
centrifugal force.
14. Excluded loss-Loss caused by inherent detect,
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