NO. 07-11-00495-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 16, 2012
TOMMY FISHER, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF
THE BOARD OF DIRECTORS OF LUBBOCK COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT, AND LUBBOCK COUNTY
WATER CONTROL AND IMPROVEMENT DISTRICT, APPELLANTS
V.
CHURCH & AKIN, L.L.C., A TEXAS LIMITED LIABILITY COMPANY, APPELLEE
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2011-558,690; HONORABLE LES HATCH, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
I join in the Court’s judgment and its opinion, but write to express my opinion
there is an additional reason for rejecting one of the District’s contentions regarding the
applicability of the waiver of immunity provided under section 271.152 of the Local
Government Code. Tex. Loc. Gov’t Code Ann. § 271.152 (West 2005). The District
contends its immunity is not waived for appellee’s breach of contract claim because,
when the District locked appellee out of the marina, “there was no written contract in
effect between the parties at the time.” It supports that contention with the argument the
lease was not properly extended beyond its initial term. In my view, the District’s
contention disregards the language of section 271.152. The section says that a local
governmental entity authorized 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 . . . .” Under the plain language of
section 271.152, immunity from suit for purposes of adjudicating a claim for breach of
contract is waived when the governmental entity enters into the contract. The District
does not deny entering into the written lease in January 2008. If the lease otherwise
meets the definition of a “contract subject to this subchapter,” immunity from suit for a
claim for its breach was waived then. The dispute whether the term of the lease expired
at the end of 2010 or, pursuant to its extension provision, was extended for an
additional period, goes to the merits of appellee’s breach of contract claim. See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (plea to jurisdiction is dilatory
plea, purpose of which is to defeat a cause of action without regard to its merit).
Appellee might have to prove the lease term was extended to establish its breach of
contract claim, but did not need to do so to establish the District waived its immunity
from suit for the adjudication of its claim.
In response to the District’s contention, the Court holds that the record shows the
term of the lease was extended so as to be in effect at the time the District locked
appellee out of the marina. I do not disagree with the Court’s holding, but for the reason
I have expressed, under my view the holding is unnecessary to a showing the trial court
has jurisdiction over the breach of contract claim.
James T. Campbell
Justice
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