Henry P. Porretto, Jr., and Rosemarie Porretto v. David Dewhurst, Commissioner of the Texas General Land Office

Opinion Issued December 31, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00942-CV

HENRY P. PORRETTO, JR. AND ROSEMARIE PORRETTO, Appellants

V.

JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL

LAND OFFICE, TEXAS GENERAL LAND OFFICE, LOU MULLER,

EXECUTIVE DIRECTOR OF THE PARK BOARD OF TRUSTEES OF

THE CITY OF GALVESTON, TEXAS, AND THE PARK BOARD OF

TRUSTEES OF THE CITY OF GALVESTON, TEXAS, Appellees

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 02CV0295

O P I N I O N

About twenty-seven acres of waterfront property, gulfward of the seawall on

Galveston Island, present the basis for this dispute. Henry and Rosemarie Porretto

sued the Texas General Land Office (the GLO), and its commissioner, Jerry

Patterson, together with the Galveston Park Board, and its executive director, Lou

Muller, alleging that the defendants have interfered with their fee simple ownership

of the property and taken it without compensation. The trial court dismissed the case

on the defendants' pleas to the jurisdiction, in which they asserted governmental

immunity.

The Porrettos appeal, contending (1) the facts alleged support a takings claim,

for which no immunity exists, (2) although immunity bars an action for trespass to try

title as to the State, the Porrettos nevertheless can sue Patterson and Muller, (3) an

interim settlement agreement executed by the Porrettos, the GLO, and the Park Board,

and filed with the trial court, is enforceable, and (4) section 306.041(a) of the Local

Government Code waives any governmental immunity. We conclude that the

Porrettos' takings claim is not barred by governmental immunity, and we follow

Texas Supreme Court precedent allowing suit against the officials. We further

conclude that the Local Government Code does not otherwise waive governmental

immunity, and thus governmental immunity bars the Porrettos' claim for slander of

title. Finally, we conclude that the Porrettos' breach of settlement agreement claim

may proceed only insofar as it relates to claims against which no governmental

immunity lies in the first instance. We therefore affirm in part and reverse and

remand in part.

Background

There being no reporter's record or trial court findings, we recite the facts from

the Porrettos' petition, which we accept as true at this stage of the proceedings. (1)

The

Porretto family purchased fee simple title in the disputed property beginning in the

late 1950's. For more than 40 years, the family earned income from the property with

rental concessions for beach amenities, like umbrellas, chairs, floats, and boats. As

landowners, the Porrettos continuously have paid property taxes, maintained liability

insurance, and constructed and maintained fixtures and improvements on the

property. Among the fixtures is a $50,000 ramp that provides public and emergency

vehicle access from Seawall Boulevard to the beach.

According to the Porrettos' petition, in recent years, the defendants wrongfully

have occupied, used, and interfered with the Porrettos' use of their property. In

addition, the Porrettos claim a cloud on the title to the land. The Porrettos point to

three leases, attached as exhibits to their petition. First, in October 1994, the State,

through the GLO, leased the property to the City of Galveston for the purpose of

beach replenishment. Second, in December 1994, the State, through the GLO, leased

the property to the City of Galveston for the purpose of public recreational use, and

placed the leases under Park Board Management. Third, in November 1999, the City

of Galveston, by and through the Park Board, leased a portion of the disputed

property to Paul Roure and Virginia Nagra for the purpose of providing beach

concessions. According to the Porrettos, these leases recite that the State and

Galveston County own the land south of the seawall, without acknowledgment of the

Porrettos' land . In July 2001, the Porrettos entered an agreement to sell their property

to Southbrook Investments, Inc. for 7.5 million dollars. Southbrook later cancelled

the contract, citing a cloud on the Porrettos' title caused by the three government

leases.

In their petition, the Porrettos seek (1) a declaratory judgment against all

defendants that they have "no right of ownership of any nature as to the Property[,]"

(2) to quiet title, via a trespass to try title claim against Patterson and Muller, (3)

compensation for a taking of their land, as the Fifth Amendment and Article 1,

section 17 of the Texas Constitution afford, and (4) damages for slander of title. In

addition, while this litigation was pending in the trial court, the Porrettos and the

defendants participated in a mediation, reached a settlement agreement, and filed it

with the trial court. Their agreement foundered in its execution. The Porrettos

amended their petition to include a breach of contract claim based on the defendants'

alleged failure to comply with the terms of the settlement.

In response to the suit, the defendants answered, and filed pleas to the

jurisdiction based on the doctrine of governmental immunity. The defendants did not

offer evidence in support of their plea, nor did they dispute the Porrettos' evidence

of ownership of the tracts in question or the veracity of the lease agreements attached

to the Porrettos' petition. (2) The trial court granted the jurisdictional pleas.

Standard and Scope of Review

Subject-matter jurisdiction is essential for a court to have the authority to

resolve a case, and a trial court lacks jurisdiction over a governmental unit that is

immune from suit. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443

(Tex. 1993). A party may challenge a court's subject-matter jurisdiction by filing a

plea to the jurisdiction. See Tex. Dep't of Transp. v. Jones , 8 S.W.3d 636, 638-39

(Tex. 1999). We review de novo a trial court's ruling on a jurisdictional plea.

Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). In our review, we

do not examine the underlying merit of the plaintiff's case, but consider only the

plaintiff's pleadings and evidence pertinent to the jurisdictional inquiry. County of

Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings

liberally in favor of conferring jurisdiction. Tex. Dep't of Transp. v. Ramirez , 74

S.W.3d 864, 867 (Tex. 2002).

A plaintiff bears the burden to allege facts affirmatively demonstrating the trial

court's jurisdiction to hear the case. Dallas Area Rapid Transit v. Whitley , 104

S.W.3d 540, 542 (Tex. 2003). To prevail on a plea to the jurisdiction, the defendant

must show an incurable jurisdictional defect apparent from the face of the pleadings,

making it impossible for any amendment of the plaintiff's petition to confer

jurisdiction on the trial court. Bybee v. Fireman's Fund Ins. Co. , 160 Tex. 429, 438 ,

331 S.W.2d 910, 917 (1960).

The Takings Claim

The Porrettos contend the trial court erred in dismissing their constitutional

takings claim. They observe that this case has two aspects: allegations that the

government is "using" or "taking" their property, which support their claim for

inverse condemnation, and allegations that governmental officials are wrongfully

claiming title their land, for which longstanding Texas Supreme Court precedent

allows a suit to proceed. The defendants respond that the Porrettos improperly have

recast a trespass to try title claim against the State as a takings claim, the former a

claim for which they must obtain legislative consent to sue, and thus the Porrettos

allege no claim that survives a jurisdictional plea.

The Fifth Amendment grants a landowner the right to seek compensation from

the government for land that it takes: "[N]or shall private property be taken for public

use, without just compensation." U.S. Const. amend. V. Likewise, the Texas

Constitution provides, "No person's property shall be taken, damaged or destroyed

for or applied to public use without adequate compensation being made, unless by the

consent of such person . . . ." Tex. Const. art. I, § 17. Thus, while sovereign

immunity protects the State from lawsuits for monetary damages, it "offers no shield

against a taking claim brought under Article I, section 17 of the Texas Constitution."

Kenedy Mem'l Found. v. Mauro , 921 S.W.2d 278, 282 (Tex. App.--Corpus Christi

1995, writ denied); see also Gen. Servs. Comm'n v. Little-Tex Insulation Co. , 39

S.W.3d 591, 598 (Tex. 2001) (sovereign immunity does not shield State from action

for compensation under takings clause). Rather, "[t]he Constitution itself is . . . a

waiver of governmental immunity for the taking, damaging or destruction of property

for public use." Steele v. City of Houston , 603 S.W.2d 786, 791 (Tex. 1980). "A

physical taking may occur when the government physically appropriates or invades

private property, or unreasonably interferes with the landowner's right to use and

enjoy it." Tarrant Reg'l Water Dist. v. Gragg , 151 S.W.3d 546, 554 (Tex. 2004). If

the government uses private property without first paying for it, an owner may

recover damages for inverse condemnation. Id. (holding that evidence was legally

sufficient to support finding that government reservoir caused recurrent destructive

flooding directly impacting ranch land) ; see also Texas Parks & Wildlife Dept. v.

Callaway , 971 S.W.2d 145, 149 (Tex. App.--Austin 1998, no pet.) (action for inverse

condemnation is exception to doctrine of sovereign immunity) .

In contrast, a trespass to try title action against the State requires legislative

consent. State v. Lain , 162 Tex. 549, 552 , 349 S.W.2d 579, 582 (1961) ("When in

this state the sovereign is made a party defendant to a suit for land, without legislative

consent, its plea to the jurisdiction of the court based on sovereign immunity should

be sustained in limine"). Texas courts have repeatedly held that a trespass to try title

action is the proper method of adjudicating rival claims to real property. Martin v.

Amerman , 133 S.W.3d 262, 264 (Tex. 2004) (holding that trespass to try title is " the

method for determining title to . . . real property." ); Rogers v. Ricane Enters ., 884

S.W.2d 763, 768 (Tex. 1994); Yoast v. Yoast , 649 S.W.2d 289, 292 (Tex. 1983). It

is this line which the government contends supports its plea to the jurisdiction.

With respect to the Porrettos' takings claim, we disagree with the

government-- a takings claim is not a functional equivalent of a trespass to try title

claim or a suit to quiet title. In a trespass to try title or to quiet title action, an owner

sues to recover immediate possession of land unlawfully withheld. Katz v. Rodriguez ,

563 S.W.2d 627, 629 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.) (noting

that a trespass to try title suit affords a legal remedy by statute and a suit to quiet title

affords an equitable remedy, but both are actions to recover possession of land

unlawfully withheld). A prevailing party's remedy is title to, and possession of, the

real property interest at issue in the suit. See Florey v. Estate of McConnell , 212

S.W.3d 439, 449 (Tex. App.--Austin 2006, pet. denied).

On the other hand, a takings claim is one in which a landowner alleges that the

government has taken his property for public use without permission, for which he

seeks compensation. City of Abilene v. Burk Royalty Co. , 470 S.W.2d 643, 646 (Tex.

1971). The available remedy is a key distinction between the two. While one suit

quiets title and possession of the property, see Florey , 212 S.W.3d at 449 , the other

allows only for just compensation for the property taken or used--the prevailing party

does not regain use of land lost to the public's use, or win possession of it. See

Hallco Tex., Inc. v. McMullen Co. , 221 S.W.3d 50, 56 (Tex. 2007). And, although

land ownership is universally an underlying consideration of a takings claim,

legislative consent is unnecessary to pursue just compensation (as opposed to

possession and title) because the Texas and United States Constitutions already grant

private landowners such a right. As the Texas Supreme Court has observed, if the

government could claim immunity for a taking by simply asserting title, then it need

never legally condemn land--it "could simply appropriate it, and the landowner

would be entitled to no compensation unless the Legislature granted him permission

to sue." Griffin v. Hawn , 161 Tex. 422, 426 , 341 S.W.2d 151, 153 (1960).

In support of their position, the defendants rely upon Bell v. State Department

of Highways and Public Transportation, 945 S.W.2d 292, 293 (Tex. App.--Houston

[1st Dist.] 1997, pet. denied) and Texas Southern University v. State Street Bank and

Trust Company , 212 S.W.3d 893, 911 (Tex. App.--Houston [1st Dist.] 2007, pet.

denied). In Bell , a landowner filed a declaratory judgment action, seeking title to

property upon which the State had built a highway. The State claimed title to the

property by a lost deed and adverse possession. Id. This Court held that Bell's suit

was, in effect, a trespass to try title action against the state. Id. at 294 . The

landowner in Bell , however, did not seek compensation for an inverse condemnation,

but instead sought title to the land. Id. Thus, our court's holding in that case is

distinguishable.

In Texas Southern , a bank sued the university for inverse condemnation after

the university refused to pay for equipment provided to it under a lease/purchase

agreement. 212 S.W.3d at 898-99. Our court affirmed the trial court's denial of the

university's plea to the jurisdiction in part, but concluded that the bank's claim for

inverse condemnation was properly dismissed because the university took the

property under color of contract, as conceded by the parties in their pleadings. Id. at

911. In contrast to Texas Southern , in which the parties conceded the existence of a

contract by which the university took possession of the equipment, here, the

Porrettos' claim of ownership in the land is unchallenged in the pleadings and the

evidence. Id.

Instead, the facts in this case resemble those in State v. Reimer and Kenedy

Memorial Foundation v. Mauro , cases in which takings claims survived a plea to the

jurisdiction. See State v. Riemer , 94 S.W.3d 103, 109 (Tex. App.--Amarillo 2002,

no pet.) (holding that allegations that State's lease and actions that resulted in taking

of oil and gas were sufficient to state claim for inverse condemnation); see also

Kenedy Mem'l Found. , 921 S.W.2d at 282 (holding that inverse condemnation claim

survived jurisdictional plea where foundation alleged that state mineral leases

encroached on foundation's property).

Finally, the defendants respond that the Porrettos' takings claim must be

dismissed for lack of jurisdiction because they had no intent to take the Porrettos'

land, but rather only to assert the government's "rights." But the government offered

no evidence on the issue of ownership or title, or even a colorable assertion of

ownership in the land; therefore, we must accept the Porrettos' allegation that they

are the fee simple owners of the land as true for purposes of evaluating this appeal.

Viewed, as we must, in a light favorable to conferring jurisdiction, an allegation that

the government conveyed leasehold rights to a third party on land that the Porrettos'

own is not an allegation of accidental or unintended use of land; rather, it is an

allegation of an intentional act that interferes with the vested right of a landowner.

See Riemer , 94 S.W.3d at 109 ; see also Gragg , 151 S.W.3d at 554 (affirming inverse

condemnation judgment against government where landowner proved taking was not

unintended). (3)

At this stage of the proceedings, the government did not controvert the

Porettos' allegations of ownership of the land in question, and have challenged the

Porrettos' claims without regard to the truth of their claim of ownership. (4) It is true

that, to prove their takings claim, the Porrettos necessarily will have to prove that they

own the property that the State allegedly has taken or used. If the Porrettos prove that

they own the disputed property, and that it has been "taken" by the State, the Porrettos

can recover compensation--but the leases that allegedly interfere with use of the

property stand firm. Because the state and federal constitutions grant authority to

landowners to seek compensation for government takings, and the Porrettos properly

have alleged such a claim, we hold that the trial court erred in granting the

government defendants' pleas to the jurisdiction as to the Porrettos' inverse

condemnation claim.

Trespass to Try Title Claims against the Government Officials

The Porrettos further contend the trial court erred in dismissing their trespass

to try title claims against governmental officials Patterson and Muller. Recognizing

that the State and Galveston are immune from a trespass to try title action, the

Porrettos rely upon State v. Lain to sue Patterson and Muller, who acted in their

official capacities when executing the leases that the Porrettos contend cloud their

title. 162 Tex. at 553 , 349 S.W.2d at 582 ; see also Griffin , 161 Tex. at 426 , 341

S.W.2d at 153 .

In Lain , a landowner filed a trespass to title suit against the State and several

of its officials, alleging that the State had trespassed on his land by constructing a

ferry landing and dredging a channel over his property. 162 Tex. at 549 , 349 S.W.2d

at 580 . The trial court dismissed the State as a party on its plea to the jurisdiction, but

denied the pleas of the governmental officials. Id. The Texas Supreme Court

affirmed the trial court's decision, holding that the State's immunity does not inure

to the benefit of its officials:

When suit for recovery of title to and possession of land, filed without

legislative consent, is not against the state itself, but is against

individuals only, the mere assertion by pleading that the defendants

claim title or right of possession as officials of the state and on behalf of

the state, will not bar prosecution of the suit.

. . . .

One who takes possession of another's land without legal right is no less

a trespasser because he is a state official or employee, and the owner

should not be required to obtain legislative consent to institute a suit to

oust him simply because he asserts a good faith but overzealous claim

that title or right of possession is in the state and that he is acting for and

on behalf of the state.

Id. at 552 , 349 S.W.2d at 581 .

The Lain court then established the trial court's procedure for adjudicating such

cases:

[W]hen officials of the State are the only defendants, or the only

remaining defendants, and they file a plea to the jurisdiction based on

sovereign immunity, it is the duty of the court to hear evidence on the

issue of title and right of possession and to delay action on the plea until

the evidence is in. If the plaintiff fails to establish his title and right of

possession, a take nothing judgment should be entered against him as in

other trespass to try title cases. If the evidence establishes superior title

and right of possession in the sovereign, the officials are rightfully in

possession of the sovereign's land as agents of the sovereign and their

plea to the jurisdiction based on sovereign immunity should be

sustained. If, on the other hand, the evidence establishes superior title

and right of possession in the plaintiff, possession by officials of the

sovereign is wrongful and the plaintiff is entitled to relief. In that event

the plea to the jurisdiction based on sovereign immunity should be

overruled and appropriate relief should be awarded against those in

possession. . . . The judgment against the individuals, predicated as it is

upon an incidental determination that title and right of possession is in

the plaintiff, is not binding on the sovereign.

Id. at 552-53 , 349 S.W.2d at 582 . The Porrettos contend that the trial court

prematurely sustained Patterson and Muller's jurisdictional pleas because Lain

obligates a trial court to hear evidence regarding title and possession before

dismissing the case. Id. Patterson and Muller respond that the Porrettos failed to

object to the trial court's failure to hold a hearing.

I n Texas Parks & Wildlife v. Miranda ,

the Texas Supreme Court held that a

trial court's review of a plea to the jurisdiction challenging the existence of

jurisdictional facts should mirror that of a traditional summary judgment. 133 S.W.3d

217, 226-27 (Tex. 2004) ; see Tex. R. Civ. P. 166a(c). The court explained that, by

requiring the State to meet the summary judgment standard of proof, "we protect the

plaintiffs from having to 'put on their case simply to establish jurisdiction.'"

Miranda , 133 S.W.3d at 228 (quoting Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547,

554 (Tex. 2000)). Under Miranda , the burden is on the government to adduce

evidence establishing as a matter of law that the trial court lacks jurisdiction. 133

S.W.3d at 228. The burden then shifts to the plaintiff to demonstrate that a disputed

issue of material fact exists regarding the jurisdictional issue. Id. The defendant

cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise

a fact issue. Id. Because Lain requires the trial court to hold an evidentiary hearing

before ruling on an official's plea to the jurisdiction, the initial burden was on

Patterson and Muller to claim a superior right to the land on behalf of the

government. Lain, 162 Tex. at 552-53 , 349 S.W.2d at 582 ; see Miranda, 133 S.W.3d

at 228 . Only then does the burden shift to the Porrettos. In their answer and

jurisdictional plea, the government did not deny the Porrettos' claim of title, nor did

they attempt to show a right to the disputed land. Thus, the trial court's dismissal of

the trespass to try title claim against the officials was premature. (5)

The court in Lain expressly held that a trespass to try title action can be

maintained against governmental officials acting in their official capacities. Lain,

162 Tex. at 552 , 349 S.W.2d at 581. "The rationale of the rule is that in such cases

possession is not in fact held for the sovereign but is wrongfully held." Id. at 552 ,

349 S.W.2d at 582. It matters not that the officials claim that "title or right of

possession is in the State." Id. at 581 . While contrary to the general rule that in other

circumstances, a suit against a governmental official in his official capacity is a suit

against the State, the Texas Supreme Court has never overruled it, and thus we follow

it. (6) See DeMino v. Sheridan , 176 S.W.3d 359, 366 (Tex. App.--Houston [1st Dist.]

2004, no pet.) .

There being no evidence in the record from which to conclude that the

government had a colorable right of possession, or even an assertion of right or title

to the property in question, we hold that the trial court erred by granting Patterson's

and Muller's pleas to the jurisdiction on the Porrettos' trespass to try title claims

against them. We note that any judgment against Patterson and Muller does not bind

the State. See Lain , 162 Tex. at 552 , 349 S.W.2d at 582 .

Breach of Contract

The Porrettos further contend that the trial court erred by granting the GLO and

Patterson's jurisdictional pleas on the Porrettos' breach of contract claims. They

allege that the GLO and Patterson breached the settlement agreement by "refusing

to provide a letter disclaiming any state interest in the Porrettos' waterfront lots above

the mean high tide line." The Porrettos further contend that the GLO and Patterson

have waived immunity from suit on the settlement agreement. In Texas A & M

University--Kingsville v. Lawson , the Texas Supreme Court held that a governmental

entity that agrees to settle a lawsuit from which it is not immune cannot claim

immunity from suit for breach of the settlement agreement relating to that claim. 87

S.W.3d 518, 521 (Tex. 2002) (plurality op.). The policy supporting this holding is

that the government should not regain immunity it previously has waived by settling

a case . Id. at 522 . Because the GLO is not immune from the Porrettos' takings claim,

under Lawson , the Porrettos' breach of contract claim can proceed, but only to the

extent it arises out of the takings claim. Id. The trial court thus erred by granting the

GLO's plea to the jurisdiction on the Porrettos' breach of contract claim.

Although we have held that the Porrettos' trespass to try title action can

proceed against Patterson, it does not follow that they may proceed with their breach

of contract claim against him. The Porrettos' breach of contract claim seeks recovery

for Patterson's failure to execute a letter disclaiming any interest by the State in

portions of the disputed property. Only persons having actual authority to act on

behalf of the State can bind it in contract. State ex rel. Dep't of Crim. Justice v.

VitaPro Foods, Inc. , 8 S.W.3d 316, 322 (Tex. 1999). Under Lain , however, if the

Porrettos have superior title, possession by Patterson "is not in fact held for the

sovereign but is wrongfully held." Lain, 162 Tex. at 552 , 349 S.W.2d at 582 . In its

non-immune existence, the Porrettos' trespass to try title claim is founded on a theory

that Patterson is acting outside his authority as a government official in possessing

their property. Since the State is immune from a trespass to try title claim, Patterson

cannot dispose of the State's immunity by settling the suit against him so as to bind

the State--thus incurring a contractual obligation on behalf of the State arising out

of a claim to which the State is immune. See id. ; see also Lawson , 87 S.W.3d at 522

(noting that "a governmental entity would not, in settling a suit for which immunity

has been waived, undertake an obligation that exposes it to liability much greater or

different than that which it faced from the original claim."). The trial court therefore

properly granted Patterson's plea to the jurisdiction on the Porrettos' claim for breach

of contract against him.

The Local Government Code

Relying on Missouri Pacific Railroad v. Brownsville Navigation District , the

Porrettos contend that the Legislature generally has waived sovereign immunity for

claims against park boards under section 306.041(a) of the Local Government Code,

which provides that a park board "may sue and be sued in its own name." Missouri

Pac. R.R. v. Brownsville Navig. Dist., 453 S.W.2d 813, 813 (Tex. 1970) (holding that

such statutory language "is quite plain and gives general [legislative] consent for [a]

District to be sued in the courts of Texas in the same manner as other defendants.").

After the Porrettos filed their brief in this case, the Texas Supreme Court overruled

Missouri Pacific , holding that "sue and be sued" statutes do not, in and of themselves,

waive governmental immunity. Tooke v. City of Mexia , 197 S.W.3d 325, 342 (Tex.

2006). We therefore hold that the "sue and be sued" language in section 306.041(a)

does not constitute an independent basis for denying the Park Board's plea to the

jurisdiction. As section 306.041 is the only basis upon which the Porrettos rely to

assert their claim for slander of title, we hold that the trial court properly dismissed

that claim. Conclusion

We reverse the trial court's order as it relates to the Porrettos' inverse

condemnation claims, and remand those claims for further proceedings. We reverse

the trial court's order as it relates to the trespass to try title claims against Patterson

and Muller, individually, and remand those claims for further proceedings. We

reverse the order as it relates to the Porrettos' breach of contract claim against the

GLO and remand that claim for further proceedings, but only insofar as that claim

corresponds to the claim for inverse condemnation. We affirm the trial court's

judgment as it relates to the Porrettos' breach of contract claim against Patterson,

individually, and to the Porrettos' claims for slander of title. All pending motions are

denied as moot.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Chief Justice Radack, dissenting.

1. See City of Houston v. Northwood Mun. Util. Dist. No. 1 , 73 S.W.3d

304, 308 (Tex. App.--Houston [1st Dist.] 2001, pet. denied)

.

2. The lease agreements refer to "state owned submerged land," which may

form the basis for an assertion of title by the State. See City of Galveston v. Texas

Gen. Land Office, 196 S.W.3d 218, 220 (Tex. App.--Houston [1st Dist.] 2006, pet.

denied). But nothing in the record so indicates. The GLO did not, for example, assert

in its plea that the disputed land is state owned, nor did it attempt to prove that the

State owns the land in question, either by title or by natural beach erosion. In the

briefing on the plea, the State refers to an assertion that it has title, but it never so

asserted in its answer, or in its plea.

3. The Park Board observes in its post-submission briefing that it at least

leased the property to a third party in reliance on its lease with the GLO, and thus it

acted under color of contract. See State v. Holland , 221 S.W.3d 639, 644 (Tex.

2007). Unlike the facts in Holland , where the State produced uncontroverted

evidence that it accepted benefits pursuant to contractual arrangements with third

parties, the allegation here is that the government in effect contracted with itself to

create immunity. Absent evidence that such a contract can be traced to a colorable

right to the Porrettos' land, which has not been adduced at this stage of the

proceedings, the Park Board's lease from the GLO does not confer to the Park Board

immunity from an inverse condemnation claim any greater than that held by the GLO.

4. In this respect, this case differs from cases in which the State is immune

because it has provided evidence that it acted under of color of contract. See, e.g.,

Holland , 221 S.W.3d at 644 (noting that the State was immune from inverse

condemnation claim based on infringement with patent rights because the State

"presented uncontroverted evidence" it had acted "pursuant to contractual

agreements").

5.

The officials further respond that Lain is inapplicable because, in that

case, the State was not a party, whereas here, the State is a party through the GLO,

with respect to the Porrettos' claim for inverse condemnation. Lain, 162 Tex. at 549 ,

349 S.W.2d at 580 . We find this distinction unpersuasive. In Lain , the State also was

a party to the trespass to try title suit, but the trial court dismissed it on a plea to the

jurisdiction, leaving only the government officials as defendants. Id. In this case, the

trespass to try title claims are against the officials only. As such, Patterson and

Muller are the "only remaining defendants" in the trespass to try title claim, as

contemplated by Lain . Id. at 552-53 , 349 S.W.2d at 582 .

6.

Although Lain expressly permits suit against government officials who

wrongfully assert title in a landowner's private property to quiet title, and we follow

it for that principle, we do not suggest that government officials waive immunity for

money judgments sought in such a suit. Lain , 162 Tex. at 552 , 349 S.W.2d at

581 -82 ; cf. Tex. Nat'l Res. Conserv. Comm'n v. IT-Davy , 74 S.W.3d 849, 856 (Tex.

2002) ("[P]rivate parties cannot circumvent the State's sovereign immunity from suit

by characterizing a suit for money damages, such as a contract dispute, as a

declaratory-judgment claim.").