concurring.
I respectfully concur in the majority’s opinion and judgment affirming the denial *305of METRO’S plea to the jurisdiction. In light of the Texas Supreme Court’s recent opinion in Reata Construction Corporation v. City of Dallas, — S.W.3d —, 47 Tex. Sup.Ct. J. 408, 2004 WL 726906 (Tex. April 2, 2004), it is not necessary to address either the merits of the case or the implication of the “sue and be sued” language found in the Texas Transportation Code.
The holding in Reata governs the resolution of the jurisdictional question presented on appeal because the key procedural facts in Reata are analogous to the facts presented here. In Reata, Southwest Properties Group, Inc. (Southwest) sued Dynamic Cable Construction Company, Inc. (Dynamic) and its subcontractor, Reata Construction Company (Reata), for negligence after Reata inadvertently drilled into a 30-inch water main while attempting to install fiber optic cable in downtown Dallas. Id. The damaged water main flooded a nearby residential building owned by Southwest.
Reata filed a third-party claim against the City of Dallas (the City), alleging that the damages were caused by the City’s misidentification of the water main location. In response, the City (1) filed special exceptions asserting that Reata’s claims were not within the Texas Tort Claims Act’s waiver of immunity; (2) intervened in the lawsuit between Southwest, Dynamic, and Reata, asserting claims against Dynamic; and (3) filed a second amended “plea in intervention,” asserting a claim of negligence against Reata related to the flooding and seeking actual damages, pre- and post-judgment interest, costs, and “any other relief at law and equity to which it may be entitled.”1 Id. The City then filed a plea to the jurisdiction asserting governmental immunity from suit with regard to Reata’s claims against it. The trial court denied the plea, and the Dallas Court of Appeals reversed the trial court and dismissed Reata’s claims against the City. City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex.App.-Dallas 2002).
The Texas Supreme Court reversed the appellate court and held that, “to the extent the City enjoyed governmental immunity from suit with regard to Reata’s claims, the City waived that immunity by intervening in the lawsuit and asserting claims for damages against Reata.” Reata, at -, 47 Tex. Sup.Ct. J. at 409 (emphasis added). The court further held that, “by filing a suit for damages, a governmental entity waives immunity from suit for any claim that is incident to, connected with, arises out of, or is germane to the suit or controversy brought by the State.” Id. (emphasis added). The court concluded by holding that, “when the City filed its plea in intervention against Reata, it subjected itself to the jurisdiction of the trial court and waived its governmental immunity from suit with regard to Reata’s claims germane to the matter in controversy.” Id. at -, at 410 (citing State v. Martin, 347 S.W.2d 809, 814 (Tex.Civ.App.-Austin 1961, writ ref’d n.r.e.)).
In this case, we have an analogous procedural situation. METRO, like the City in Reata, voluntarily filed a suit for damages against a party in the form of a counterclaim and then attempted to claim immunity.2 See id. at -, at 408. Fur*306thermore, like the City in Reata, METRO’S claims were incident to, connected with, arose out of, or were germane to the suit brought against it. See id. at -, at 410. Here, MEB sued METRO for damages as a result of extra work it performed for METRO. METRO then counterclaimed, alleging that, due to MEB’s delay in completing the contracts, METRO was entitled to more than $400,000 in damages, plus attorneys’ fees for MEB’s alleged breach of contract and breach of warranty.3
Accordingly, when METRO filed its counterclaim, “it subjected itself to the jurisdiction of the trial court and waived its governmental immunity from suit with regard to [MEB’s] claims germane to the matter in controversy.” See id. Thus, the trial court did not err in rejecting METRO’S challenge to the court’s jurisdiction.
CONCLUSION
For these reasons, I respectfully concur.
. In Reata, there was no explanation given as to why the City’s claim was characterized as a "plea in intervention” instead of a counterclaim. Reata sued the City, and the City, as a defendant, countered by suing Reata. As a third party defendant, the City did not need to intervene in the lawsuit between Southwest, Dynamic and Reata to be able to sue Reata.
. METRO suggested during oral argument that Reata was not instructive because the governmental entity in Reata filed a plea in intervention, whereas, here, METRO filed a *306counterclaim. I disagree with this suggested distinction because, in the context of waivers of immunity, there is no difference. Regardless of the nomenclature of the action, both filings (1) voluntarily seek the trial court's jurisdiction and affirmative relief from the court and (2) survive the dismissal of the original claim. Furthermore, as noted above, although styled as a second amended plea in intervention, the action brought by the City against Reata in Reata was, in fact, a counterclaim — -just like METRO'S claim in this lawsuit — and not an intervention.
. METRO asserted during oral argument that this counterclaim was merely a "defensive offset.” If METRO'S counterclaim was, in fact, an offset, it was improperly pleaded. The right to offset one claim against another claim is an affirmative defense, not a claim for affirmative relief. Bonham State Bank v. Beadle, 907 S.W.2d 465, 470 (Tex.1995); Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.).