The opinion
DON BURGESS, Justice,
dissenting and concurring.
I respectfully dissent, but necessarily concur with the partial remand.
The defendants’ joint motion for summary judgment alleged, “Because defendants are a school district and an employee sued in his capacity as superintendent of said school district, they are immune from claims of negligence.” The motion for summary judgment is based upon an assertion of sovereign immunity by the governmental unit and by Thomas in his official capacity. The defendants also raised sovereign immunity as an affirmative defense in their answer, but they did not file a plea to the jurisdiction. A plea to the jurisdiction is not required to preserve sovereign immunity as a defense, but it is the order denying such a plea for which interlocutory appeal may be had on the *323 issue of sovereign immunity. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2003).
The appellants’ notice of appeal specifies that the appeal is brought pursuant to Section 51.014(a)(5) of the Civil Practice and Remedies Code. I continue to believe our prior determination, in Brazos Transit Dist. v. Lozano, 72 S.W.3d 442, 444 (Tex.App.-Beaumont 2002, no pet.) 1 , based upon Houston v. Kilburn, 849 S.W.2d 810 (Tex.1993), that this section permits only an interlocutory appeal from the denial of a motion for summary judgment that asserts a claim of qualified or official immunity, not a claim of sovereign immunity by a governmental unit, was correct.
Because the appellants neither sought summary judgment on a matter that is appealable under Section 51.014(a)(5), nor filed a plea to the jurisdiction, the denial of which would be appealable under Section 51.014(a)(8), the order denying the appellants’ motion for summary judgment is not subject to review on interlocutory appeal. Having determined that our appellate jurisdiction has not been invoked I would dismiss the entire appeal for want of jurisdiction. Because my result would, in effect, remand the entire case, I necessarily concur in the majority’s partial remand.
. The majority relies upon a footnote to “overrule” Brazos.