Bobby Trant, Individually and as of the Estate of Harold B. Trant, and of the Estate of Rosealice Trant, and the Additional Heirs and Beneficiaries of Those Estates, Patsy Trant Langford and Robin Trant Johnson v. Brazos Valley Solid Waste Management Agency, Inc., D/B/A BVSWMA, Inc.

Affirmed and Opinion filed September 29, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00507-CV

BOBBY TRANT, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE

OF HAROLD B. TRANT, DECEASED, AND OF THE ESTATE OF

ROSEALICE TRANT, DECEASED, AND THE ADDITIONAL HEIRS AND

BENEFICIARIES OF THOSE ESTATES, PATSY TRANT LANGFORD

AND ROBIN TRANT JOHNSON, Appellants

V.

BRAZOS VALLEY SOLID WASTE MANAGEMENT AGENCY, INC.,

D/B/A BVSWMA, INC., Appellee

On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Cause No. 33014

OPINION

In nine issues, appellants Bobby Trant,1 Patsy Trant Langford, and Robin

1

Bobby Trant appears individually and as executor of the estates of Harold B. and

Rosealice Trant.

Trant challenge the trial court’s order granting appellee Brazos Valley Solid Waste

Management Agency’s plea to the jurisdiction and dismissing the case for want of

jurisdiction.2 Concluding that the trial court lacks jurisdiction over the Trants’

claims, we affirm.

Background

Harold and Rosealice Trant entered into an Option Contract with the Cities

of Bryan and College Station, pursuant to which the Cities obtained the right to

purchase approximately 382 acres of land in Grimes County from Harold and

Rosealice. The Option Contract stated: “[The Cities] contemplate using the

Property as a . . . Landfill.” The Cities subsequently purchased the property, and

the parties executed a General Warranty Deed, which incorporated the “Terms,

Conditions, and Representations” in the Option Contract. The Cities and Harold

and Rosealice also signed an Easement Agreement for Access granting the Trants

non-exclusive access to their land adjacent to the property.

The Cities formed the Agency, a governmental entity that currently operates

a landfill on the property. In 2014, the Trants learned that the Cities had decided to

put a firing range on a portion of the property near their land. The Trants sent a

letter to the Cities and the Agency, contending that the property could be used only

as a landfill. Counsel for the Agency responded by letter that while the Option

Contract contemplated an intended use of the property as a landfill, the contract did

not restrict the Cities’ use of the property to such purpose.

The Trants filed suit against the Agency, bringing claims apparently for

breach of contract and fraudulent inducement and seeking actual, consequential,

and exemplary damages as well as an injunction preventing the Agency from using

2

We refer to Brazos Valley Solid Waste Management Agency as “the Agency.”

2

the property as a firing range.3 The Agency filed a plea to the jurisdiction, asking

the trial court to dismiss the suit on the basis that governmental immunity bars the

Trants’ claims. The Trants responded that (1) the Agency is not immune from suit

to enforce the Option Contract, which the Trants construe as a condemnation

settlement agreement, or from their claim to enforce land use restrictions; and

(2) the Agency’s immunity has been waived under Chapter 271 of the Local

Government Code, addressed below. The trial court granted the Agency’s plea and

dismissed the Trants’ claims for want of jurisdiction.

Discussion

In nine issues, the Trants challenge the trial court’s order dismissing their

claims for lack of jurisdiction. The Trants argue that their sale of the property to

the Cities is the equivalent of a condemnation settlement agreement and assert the

trial court has jurisdiction over the Trants’ claims because (1) a waiver of

immunity is unnecessary to enforce purported use restrictions in the parties’

agreements; (2) the Cities’ use of part of the property for a firing range amounts to

an unconstitutional taking; (3) the Agency is not immune from suits to enforce

condemnation settlement agreements; and (4) the Cities and the Agency waived

immunity under chapter 271 of the Local Government Code.4

3

The Trants’ live petition is not a model of clarity. Construing the petition liberally, we

interpret the Trants’ claims as breach of contract and fraudulent inducement. The Trants contend

that the Cities made false representations to Howard and Rosealice as to the intended use of the

property to induce them into selling. We note, however, the Trants filed suit only against the

Agency and not the Cities.

4

Chapter 271, discussed in further detail below, waives immunity as to local government

entities that enter into certain types of contracts. The Trants also argue (1) the Agency lacks

authority to operate a firing range; (2) a fact question exists as to whether the Cities exercised

bad faith in using their power of eminent domain to gain an unfair economic advantage; (3) the

Trants will suffer irreparable injury if the firing range is opened on the property; (4) the Trants

will have no recourse after the firing range has been opened; and (5) the Agency “should not be

permitted to act as an illicit surrogate for the Cities.” We decline to address these issues because

3

The Agency describes itself as a “local governmental non-profit corporation

wholly owned by” the Cities and a “governmental unit” as defined in Chapter 101

of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code

§ 101.001(3). As a “local governmental” corporation owned by the Cities, the

Agency is a local governmental entity. See Lubbock Cnty. Water Control &

Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 & n.4 (Tex.

2014); Tex. Loc. Gov’t Code § 271.151(3)(A), (C). Local governmental entities

enjoy governmental immunity from suit, unless immunity is expressly waived. 5

Church & Akin, 442 S.W.3d at 300. Governmental immunity includes both

immunity from liability, which bars enforcement of a judgment against a

governmental entity, and immunity from suit, which bars suit against the entity

altogether. Id. A governmental entity that enters into a contract necessarily waives

immunity from liability, voluntarily binding itself like any other party to the terms

of agreement, but it does not waive immunity from suit. Id. Unlike immunity from

liability, immunity from suit deprives the courts of jurisdiction and thus completely

bars the plaintiff’s claim. Id.

We review a plea challenging the trial court’s jurisdiction de novo. State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007). We first look to the pleadings to

determine if the pleader has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

they relate to the merits of the Trants’ underlying claims. In reviewing a plea to the jurisdiction,

we consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.

See Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001); see also

Carlson v. City of Houston, 309 S.W.3d 579, 582 (Tex. App.—Houston [14th Dist.] 2010, no

pet.).

5

Sovereign immunity protects the State and state-level governmental entities, while

governmental immunity protects political subdivisions of the State such as counties, cities, and

districts. Church & Akin, 442 S.W.3d at 300 n.4. The two doctrines are otherwise the same, and

courts often use the terms interchangeably. Id.

4

S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor of the

plaintiff, look to the pleader’s intent, and accept as true the factual allegations in

the pleadings. Id. When a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider relevant evidence submitted by the parties. See id.

at 227. The standard of review for a jurisdictional plea based on evidence

“generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c).” Id. at 228. Under this standard, we credit evidence favoring

the nonmovant and draw all reasonable inferences in the nonmovant’s favor. See

id. The defendant must assert the absence of subject-matter jurisdiction and present

conclusive proof that the trial court lacks subject-matter jurisdiction. Id. If the

defendant discharges this burden, the plaintiff must present evidence sufficient to

raise a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.

We generally analyze jurisdiction separately for each claim. See In re

C.D.B., No. 14-13-00718-CV, 2015 WL 1405921, at *2 (Tex. App.—Houston

[14th Dist.] Mar. 24, 2015, no. pet.). When, as here, the claims are dependent on

the same facts, however, it is not always necessary to address each claim

separately.6 See City of Dallas v. Jones, No. 05-07-00831-CV, 2008 WL 588997,

at *4 (Tex. App.—Dallas Mar. 5, 2008, pet. denied) (mem. op.); cf. Moncrief Oil

Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150–51 (Tex. 2013) (holding in the

context of personal jurisdiction challenge that courts need not assess forum

contacts on a claim-by-claim basis if all claims arise from same forum contacts).

6

The Texas Supreme Court has not addressed whether it is necessary to analyze each

claim separately when they all arise from the same facts in the context of a plea to the

jurisdiction. Shannon v. Mem’l Drive Presbyterian Church U.S., No. 14-14-00359-CV, 2015 WL

5138139, at *2 n.2 (Tex. App.—Houston [14th Dist.] Sept. 1, 2015, no. pet. h.). We note that

there may be some instances in which jurisdiction must be analyzed separately as to each claim

even when the claims are dependent on the same facts, for example, when certain types of

immunity apply only to certain types of claims. See id.

5

I. No Violation of Restrictive Use Covenant

In their fourth issue, the Trants assert that the Agency is not immune from an

action to enforce restrictive use covenants in the General Warranty Deed and

Easement Agreement.7 The Trants cite El Dorado Land Co. v. City of McKinney,

395 S.W.3d 798, 801 (Tex. 2013), for the proposition that a governmental entity is

not entitled to immunity for the violation of a restrictive use covenant. The

supreme court held in that case that a reversionary interest “consisting of the

grantor’s right to purchase real property on the occurrence of a future event [was] a

sufficient property interest to support an inverse condemnation claim.” Id. at

799-801 (holding that, if the city violated the use restriction in the conveyance

deed, El Dorado retained the power to terminate the City’s estate). There is no

reversionary interest at issue here.8 We need not decide whether El Dorado stands

for the broader proposition the Trants assert, because we conclude they have not

raised a material issue of fact regarding the existence of any restrictive use

covenant in the General Warranty Deed or Easement Agreement that the Agency

may have violated.9

Our primary concern in interpreting a contract is to ascertain and to give

effect to the intentions of the parties as expressed in the instrument. J.M. Davidson,

7

We discuss the issues out of order for organizational purposes.

8

The Trants argue, “Nothing in the record supports the conclusion that the Cities

acquired fee simple absolute title to the land in question.” But they point to no reversionary

interest in the General Warranty Deed that would allow them to reacquire the property upon the

occurrence of a future event. The Trants contend that the Cities “negotiated, accepted by deed

and took by condemnation” the property for use only as a landfill. For the reasons discussed

below, we disagree.

9

The other cases the Trants cite are similarly distinguishable. See, e.g., Leeco Gas & Oil

Co. v. Nueces Cnty., 736 S.W.2d 629, 631-32 (Tex. 1987) (holding a government entity must pay

adequate compensation to condemn a reversionary interest retained by a grantor of land); Truong

v. City of Houston, 99 S.W.3d 204, 211-13 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(holding city’s enforcement of deed restrictions was a governmental function and city was

immune from landowners’ affirmative defenses).

6

Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). We examine and consider the

entire writing in an effort to harmonize and give effect to all provisions of the

contract, so that none will be rendered meaningless. Id. When interpreting

restrictive covenants, we apply the general rules of contract construction. Pilarcik

v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). Covenants restricting the free use of

land are not favored in the law. Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.

1987). Therefore, when a restrictive covenant may reasonably be interpreted in

more than one way, we will resolve all doubts in favor of the free and unrestricted

use of the property, strictly construing the restrictive clause against the party

seeking to enforce it. Id.; Zgabay v. NBRC Prop. Owners Ass’n, No. 03-14-00660-

CV, 2015 WL 5097116, at *2 (Tex. App.—Austin Aug. 28, 2015, no. pet. h.)

(mem. op.). The words used in the restriction, and the restriction as a whole, may

not be enlarged, extended, stretched, or changed by construction. Wilmoth, 734

S.W.2d at 657. The party seeking to enforce a restrictive covenant has the burden

of showing that the restriction is valid and enforceable. Gillebaard v. Bayview

Acres Ass’n, 263 S.W.3d 342, 347 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied).

The Trants argue that the General Warranty Deed includes a restrictive use

covenant allowing the land to be used only as a landfill. As set forth above, the

General Warranty Deed incorporates the “Terms, Conditions, and Representations”

in the Option Contract. The Option Contract states that the Cities “contemplate

using the Property as a . . . Municipal Sanitary Landfill.”10 However, nothing in the

language of the General Warranty Deed or Option Contract indicates that the

Trants retained a possessory interest in the property contingent on the Cities’ using

it as a landfill. Cf. El Dorado Land Co., 395 S.W.3d at 800-01. The Option

10

“Contemplate,” in this context, means “to intend or anticipate.” The American Heritage

Dictionary 316 (2d col. ed. 1991).

7

Contract and the General Warranty Deed do not include a restrictive use covenant.

The only language referencing any use of the property, discussed above, merely

reflects how the Cities anticipated using the property—the Cities did not agree to

use the property only as a landfill. We may not enlarge the words of the contract.

See Wilmoth, 734 S.W.2d at 657. Accordingly, the Trants failed to raise a material

issue of fact as to a restrictive use covenant in the General Warranty Deed or

Option Contract that the Agency has violated.

The Trants further argue that the Agency has violated restrictive use

covenants in the Easement Agreement. The Trants alleged in their petition that the

Agency breached the Easement Agreement by “authorizing its contractors, agents,

employees, licensees and/or lessees to use the easement . . . to operate and access

its landfill and [having] surveyors staking off the ‘firearm range.’” The Trants

assert that under the Easement Agreement, the public is not allowed “to use the

Easement Property for any purpose.”

In the Easement Agreement, the Cities granted the Trants the “non-exclusive

right to use [an] existing gravel road . . . for pedestrian and vehicular ingress and

egress” to the Trants’ property adjacent to the Cities’ property (emphasis added).

The Cities reserved

the right to continue to use and enjoy the surface of the Easement

Property for all purposes that relate to [the Cities’ and their]

successors and assigns[’] use, occupancy, development and operations

on and ingress to and egress from [the Cities’ property] and do not

interfere with or interrupt the use or enjoyment of the Easement by

[the Trants] for the Easement Purposes. [The Cities and their

successors and assigns also reserved] the right to use all or part of the

Easement . . . solely for the purposes of use, occupancy, operations,

development and ingress to and from [the Cities’ property] and the

right to convey to others the right to use . . . the Easement in

conjunction with [the owner of the Trants’ property], as long as such

further conveyance is limited to the use, occupancy, operation,

8

development and ingress to and egress from the [Cities’ property] and

is subject to the terms of this agreement.

In the Easement Agreement, the Cities, as grantor, expressly stated that “nothing

herein shall be construed as . . . granting the public any right to use the Easement

Property,” “an agreement, commitment[,] or statement of intent by [the Cities to]

dedicate[ the Easement Property] to the public at any time in the future,” or

“granting any property owner . . . other than the owner [of the Trants’ property],

any right to use the Easement Property for any purpose.”

Construing the Easement Agreement as a whole, we reach the following

conclusions: (1) the Trants’ right to use the easement was non-exclusive; (2) the

Cities reserved the right to use the easement and could convey that right to others

for “the use, occupancy, development and operations on and ingress to and egress

from the [Cities’ property]”; (3) the Cities declined to grant public access to the

easement in the Easement Agreement, but the Easement Agreement does not

include a restrictive covenant requiring the Cities to limit future access of the

easement by the public; and (4) nothing in the Easement Agreement prevents the

Cities from, as alleged, authorizing others “to use the easement . . . to operate and

access [the] landfill” and to stake off a firearm range. Accepting as true the Trants’

allegation regarding the Agency’s use of the easement, we conclude that they

failed to raise a material issue of fact as to a restrictive use covenant in the

Easement Agreement that the Agency has violated under the facts as alleged.

Moreover, under the plain language of the Easement Agreement, the Trants

could seek enforcement of the Easement Agreement “by restraining orders and

injunctions” only “on proof of the existence of interference.” They expressly

waived any “claim against [the Cities] for breach of [the Easement Agreement]

until and unless [the Cities] failed, after receipt of written notice [from the Trants,

9

to] cure . . . such alleged deficiency . . . .” The Trants pleaded that putting a firearm

range on the subject property will in the future violate “the entire length of the

access easement” and “impact, trespass upon and prevent the full use of the other

properties and the property rights still owned by deed exceptions and reservations

by the Trants within the area.” Thus, the Trants concede that the Agency has not

yet put a firing range on the property. Under the express terms of the Easement

Agreement, any breach would be actionable only upon “proof of the existence of

interference” with the Trants’ use and enjoyment of the easement and only after the

Agency has been given an opportunity to cure any breach. Because the Trants have

not pleaded a current interference with their use and enjoyment of the easement,

their pleading has affirmatively negated their claim against the Agency for breach

of contract.

For the foregoing reasons, we overrule the Trants’ fourth issue.

II. No Facts Alleged to Demonstrate Jurisdiction based on

Unconstitutional Taking of Property

We address issues one and two together because they both relate to the

purported unconstitutional taking of property. In their first issue, the Trants assert

that the purported unauthorized use of the easement and the property for purposes

other than as a landfill constitutes an unconstitutional taking of the property.11 In

that connection, they assert that they are entitled to an injunction for the Agency’s

unlawful use of the property. Because we conclude for the foregoing reasons that

the Cities are not required to use the property only as a landfill, we find this

11

Although the Trants’ petition refers to “the placement of the gun range where it will

most impact, trespass upon and prevent the full use of the other properties and property rights

still owned by deed or exceptions and reservations by the Trants,” the Trants’ counsel clarified at

oral argument that they are not presently asserting a claim for taking, damage, or trespass

regarding their adjacent property or the drill sites on the Cities’ property that have been

designated for use by the Trants and other mineral interest owners.

10

argument to be incorrect. However, we shall address whether the Trants otherwise

have demonstrated the trial court’s jurisdiction over their takings claim. In their

second issue, the Trants argue that their sale of land to the Cities was tantamount to

a formal condemnation proceeding that was settled by the Trants’ agreement to sell

the property. The Trants contend the purpose of this lawsuit is to enforce the

parties’ settlement agreement and the Agency is not immune from such suits.

Under the Texas Constitution, no property may be taken by a government

entity without adequate compensation, except by consent. Tex. Const. art. I,

§ 17(a); City of Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex. 2012).

Governmental immunity does not shield a municipality from an action for

compensation under the takings clause. Smith v. City of League City, 338 S.W.3d

114, 121 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Condemnation is the

procedure by which a sovereign exercises its right to take property of a private

owner for public use, without consent, upon the payment of just compensation.

City of Carrollton v. Singer, 232 S.W.3d 790, 797 (Tex. App.—Fort Worth 2007,

pet. denied) (citing Tex. Prop. Code §§ 21.011–.065). Generally, the government

compensates the owner either by paying a mutually agreed price or, if the

landowner and municipality cannot agree on the amount of adequate

compensation, paying the value determined in a statutory condemnation

proceeding. Id. If either party objects to the value established in the condemnation

proceeding, the case is tried as any civil lawsuit. Id. at 798. As with any claim, a

condemnation claim may be settled before a lawsuit is filed. See id. at 797.

When a governmental entity is exposed to suit—such as through a claim

seeking compensation for a governmental taking—because of a waiver or lack of

immunity, it cannot nullify that waiver or lack of immunity by settling the claim

with an agreement on which it cannot be sued. Tex. A & M Univ.-Kingsville v.

11

Lawson, 87 S.W.3d 518, 521 (Tex. 2002). In that connection, the Fort Worth Court

of Appeals held that a city did not have governmental immunity for a breach of

contract claim involving the breach of an agreement in settlement of a

condemnation claim because the governmental entity would not have had

immunity from the underlying takings claim. Singer, 232 S.W.3d at 799-800.12 In

holding that the City was not immune from suit, the court noted in the absence of

the settlement agreement, “the [plaintiffs] would have [had] a claim against the

City for adequate compensation for the City’s [taking] of their property . . . for

which the City would not be immune.” Id. at 800.

We need not decide whether the Option Contract was, as alleged by the

Trants, a settlement of a condemnation claim (which the Agency vigorously

disputes), because the Trants have not raised a material issue of fact regarding

whether the contract was breached. They have alleged only that “the Option

Contract specifically limited the taking of each tract of property for ‘the

construction, operation, and maintenance of a solid waste facility and landfill’” and

“[s]ince all takings and transfer set forth herein were made pursuant to

condemnation or the threat of condemnation, [the Agency] has waived its right to

sovereign or governmental immunity.” As explained above, the contract contains

no such limitation. Accordingly, the Trants did not allege an unconstitutional

taking for which the Agency would not be immune as a basis for the trial court’s

jurisdiction. See id.; see also Kaufman Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex.

12

The settlement agreement in the Singer case was intended to settle the Singers’ claim

for adequate compensation, for which the municipality did not have immunity. Singer, 232

S.W.3d at 795, 799 (citing Tex. Const. art. I, § 17). The Singers conveyed a right of way to the

City of Carollton to extend a road. Id. at 793. For its part, the City agreed to construct an

entrance to the road from the Singers’ property and not to close the median cut onto the old road

until the new road was completed. Id. The Singers were not satisfied with the quality and

appearance of the entrance, and the City prematurely closed the median cut. Id. at 793-94. The

Singers filed suit for breach of contract. Id. at 794.

12

App.—Dallas 2012, pet. denied) (“Although governmental immunity does not

shield a governmental entity from a valid takings claim, it does apply when a

plaintiff does not allege a valid takings claim.”).

The Trants link their fraud claim to their takings claim. They did not assert a

basis below or in their opening brief on appeal upon which the Agency’s immunity

as to the Trants’ fraud claim would be waived. However, they filed a supplemental

brief after oral argument contending only that the trial court has jurisdiction to

grant them injunctive relief as a remedy for the Agency’s purportedly fraudulent

unconstitutional taking of their property. Because the Trants have not affirmatively

demonstrated the trial court’s jurisdiction over their takings claim, they similarly

have not affirmatively demonstrated the trial court’s jurisdiction over their fraud

claim.

The Trants amended their petition twice after the Agency filed its plea to the

jurisdiction. The Agency pointed out at the hearing on the plea to the jurisdiction

that the Trants had not alleged an unconstitutional taking in their previously filed

petitions. The Trants did not amend their petition after the hearing to assert that

they did not receive adequate compensation for their property, and the record does

not indicate that they sought to do so. The trial court dismissed the case over a

week later. Having had multiple opportunities to allege facts that affirmatively

demonstrate the court’s jurisdiction over their claim, the Trants are not entitled

now to an additional opportunity to replead that they did not receive adequate

compensation for the property. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 639

(Tex. 2004) (“If a plaintiff has been provided a reasonable opportunity to amend

after a governmental entity files its plea to the jurisdiction, and the plaintiff’s

amended pleading still does not allege facts that would constitute a waiver of

immunity, then the trial court should dismiss the plaintiff’s action.”); Thornton v.

13

Ne. Harris Cnty. MUD 1, 447 S.W.3d 23, 35 (Tex. App.—Houston [14th Dist.]

2014, pet. denied) (holding, when plaintiffs raised basis for jurisdiction for first

time on appeal—and thus failed to allege basis in responses to plea to jurisdiction

and summary judgment motion—court of appeals was not required to remand “for

another opportunity to replead”); Harris Cnty. v. Cypress Forest Pub. Util. Dist. of

Harris Cnty., 50 S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.)

(noting plaintiff’s failure to take advantage of multiple pleading opportunities).

We overrule the Trants’ first and second issues.

III. No Waiver of Immunity under Chapter 271 of the Local

Government Code

In their third issue, the Trants argue that the terms of the Option Contract

incorporated into the General Warranty Deed required them to provide services to

the Cities and thus the Agency’s immunity was waived under chapter 271 of the

Local Government Code. Under chapter 271, the legislature waived sovereign

immunity as to local governmental entities that enter into contracts for goods or

services for the purpose of adjudicating claims for breach of contract. Tex. Loc.

Gov’t Code §§ 271.151(2)(A), 271.152. Subsection 271.151(2)(A), in relevant

part, defines the types of contracts subject to the waiver of immunity: “a written

contract stating the essential terms of the agreement for providing goods or

services to the local governmental entity that is properly executed on behalf of the

local governmental entity.” Id. § 271.151(2)(A). Chapter 271 waives immunity

only with respect to a “suit for the purpose of adjudicating a claim for breach of the

contract, subject to the terms and conditions of this subchapter.” Nat’l Pub. Fin.

Guarantee Corp. v. Harris Cnty.-Houston Sports Auth., 448 S.W.3d 472, 482 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (quoting Tex. Local Gov’t Code

§ 271.152).

14

We need not decide whether the Option Contract is an agreement to provide

goods or services subject to chapter 271 because we conclude that chapter 271’s

waiver of immunity does not extend to the Trants’ claims. Although the Trants

assert a claim for breach of contract, it is not the type of claim envisioned by

chapter 271. The waiver of immunity for breach of contract claims in chapter 271

is expressly limited to claims for “the balance due and owed by the local

government entity under the contract,” “the amount owed for change orders or

additional work . . . in connection with the contract,” or related attorney’s fees and

interest.13 Tex. Local Gov’t Code § 271.153(a). Moreover, most consequential

damages are disallowed, as well as exemplary damages. Id. § 271.153(b).

As set forth above, the Trants’ breach of contract claim hinges on their

allegations that the Agency will breach the General Warranty Deed by using the

property for a purpose other than that set forth in the contract and the Agency will

breach the Easement Agreement in the future. The Trants do not contend that there

is a balance “due and owed” from the sale of the property and thus do not seek

such damages. Because the Trants have failed to identify a breach of contract by

the Agency that would support a waiver of immunity, we conclude the Agency’s

immunity for the Trants’ breach of contract claim has not been waived under

chapter 271. See Nat’l Pub. Fin. Guarantee Corp., 448 S.W.3d at 485. Because the

alleged anticipated breaches do not support a waiver of immunity under chapter

271, the Trants’ pleading affirmatively negates the trial court’s jurisdiction over

this claim. See City of Houston v. Song, No. 14-11-00903-CV, 2013 WL 269036,

at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, pet. denied) (mem. op.)

(concluding plaintiffs’ pleadings affirmatively negated jurisdiction over their

takings claim when they did not allege a compensable material and substantial

13

Specific performance or injunctive relief is available under certain circumstances not

applicable here. Tex. Local Gov’t Code § 271.153(c).

15

impairment of access to their properties). Accordingly, we do not remand for an

opportunity to replead this claim. See id. at *4 n.7.

We overrule the Trants’ third issue.

Conclusion

Concluding that the Agency is immune from suit under these circumstances

and the trial court lacks jurisdiction over the Trants’ claims, we affirm the

judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, Busby, and Brown.

16