concurring.
The appellee sued the City of LaPorte in the trial court under what I believe to be a single theory of recovery. The appellee’s second amended petition stated in paragraph VII:
TEXAS INSURANCE’S default upon the Payment Bond has placed Plaintiff in the same position as if the CITY had initially failed to secure a Payment Bond. Plaintiff is therefore entitled to maintain his action against the CITY in accordance with Tex.Rev.Civ.Ann. art. 5160(A)(b) (Vernon 1987). Failure to allow such action would be wholly inequitable and *833would leave Plaintiff without the remedies and protection that has been granted to mechanics and materialmen by the State of Texas since 1865.
The majority states in its opinion that, “Taylor (the subcontractor and appellee) is claiming an equitable lien, based on an unjust enrichment theory.” Op. at 832. I find no such cause of action pled in appel-lee’s active trial petition, nor do I find where the trial judge granted relief on any such theory. The appellee asked for relief in the trial court specifically on a statute that was not law when appellee’s cause of action arose. Recovery on the former statute applicable to these facts has been specifically rejected by the supreme court. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 42 (1992).
I join in the majority’s opinion to the extent that it is limited to the holding that the appellee’s cause of action as pled will not support a recovery under the law of the State of Texas. I do not join in the implication or holding, if any, in the majority’s opinion that suggests, under the facts of this case, that an unpaid subcontractor’s sole and exclusive remedy is filing suit on the payment bond in the event of the general contractor’s default and inability to pay a just and due obligation. I do not believe the law supports the City’s claim of sovereign immunity protecting it from liability under any type of theory of recovery under these facts.