Campbellton Road, Ltd. v. City of San Antonio by and Through the San Antonio Water System

Supreme Court of Texas
══════════
No. 22-0481
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Campbellton Road, Ltd.,
Petitioner,

v.

City of San Antonio by and through
the San Antonio Water System,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

Argued November 30, 2023

JUSTICE DEVINE delivered the opinion of the Court.

Justice Lehrmann did not participate in the decision.

The Local Government Contract Claims Act waives immunity
from suit for breach of contract when a local governmental entity enters
into certain written contracts, including those “stating the essential
terms of the agreement for providing . . . services to” that entity. 1 In

1 TEX. LOC. GOV’T CODE §§ 271.151(2)(A), .152.
this breach-of-contract suit to enforce alleged vested rights in sewer-flow
capacity, the issue on appeal is whether a written instrument
documenting the terms and conditions for a municipal water system to
provide sewer service to and guarantee capacity for a developer’s
planned subdivisions formed a contract for which the Act waives
immunity. Central to the dispute are the terms of an option for the
developer to participate in and fund the construction of off-site oversized
infrastructure, which the system would then own to ensure sufficient
capacity for the new developments. The court of appeals concluded the
Act did not apply, and therefore did not waive immunity, because there
was no agreement for providing services to the system; that is, the
system had no contractual right to receive any services and would not
have “any legal recourse” if the developer “unilaterally decided not to
proceed.” 2
We disagree and hold that the Act waived the system’s immunity
from suit because the developer adduced evidence that (1) a contract
formed when the developer decided to and did participate in the off-site
oversizing project, (2) the written contract states the essential terms of
an agreement for the developer to participate in that project, and (3) the
agreement was for providing a service to the system that was neither
indirect nor attenuated. We therefore reverse the court of appeals’
judgment and remand the case to the trial court for further proceedings.

2 647 S.W.3d 751, 759 (Tex. App.—San Antonio 2022).

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 I. Background
In 2003, Campbelton Road, Ltd. (the Developer) 3 and San Antonio
Water System (SAWS) signed an Outer Service Area Sewer Service
Contract. 4 The Contract identifies SAWS as the City of San Antonio’s
water, wastewater, and water re-use agency and the City as the
responsible government agency for constructing, operating, and
maintaining the sewerage system in a defined area. Outside city limits
but within the service area, 5 the Developer owned a 585-acre tract of
land, which it planned to develop into two residential subdivisions with
sewer service. To this end, the Contract recites that SAWS’s collection
and treatment of the tract’s wastewater are in the public interest and
that the parties wished to document the agreement’s terms regarding
such services. 6

3 Although the Contract, pleadings, and docket list “Campbellton Road,

Ltd.,” the Developer now informs us that the correct spelling is “Campbelton.”
4 The manager for the Developer’s predecessor in interest and SAWS’s

director of infrastructure development signed the Contract on behalf of the
respective parties after SAWS’s board of trustees approved it by resolution.
5 See TEX. LOC. GOV’T CODE § 395.001(9) (defining “service area” to
include the area within a political subdivision’s corporate boundaries or
extraterritorial jurisdiction “to be served by the capital improvements or
facilities expansions specified in the capital improvements plan”).
6 Development agreements often provide “the benefits of certainty and

predictability” in addressing property development issues, including the
funding of necessary infrastructure to serve new developments. R. Alan
Haywood & David Hartman, Legal Basics for Development Agreements, 32 TEX.
TECH. L. REV. 955, 956 (2001) (noting that development agreements allow
developers “to obtain a binding commitment from the city for those services on
which the landowner/developer, and its lenders and purchasers, may rely”
while helping the city “plan for those utility services,” as it “will typically need
to know and will specifically want to limit the extent of that commitment”); see
Ronald H. Rosenberg, The Changing Culture of American Land Use

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 The Contract states that it would “remain in full force and effect”
for ten years. Among other terms and conditions, the Developer would
submit a project master plan, engineering report, and water plan and
comply with design, construction, and permitting procedures for
sewer-infrastructure development. Off-site systems would be
considered temporary facilities until SAWS’s director of infrastructure
development determined they were “an integral part of [SAWS]’s
regional sewerage system.” After SAWS accepted the infrastructure,
the Developer would convey its “right, title and interest” to it, and SAWS
“shall thereafter own, operate, and maintain said systems” with “the
right to connect wastewater flows from other developments.” 7
Before the development can be connected to SAWS’s sewer
service, the Contract requires the Developer to pay sewer-collection and
wastewater-treatment components of an impact fee, 8 to be calculated in

Regulation: Paying for Growth with Impact Fees, 59 SMU L. REV. 177, 203
(2006) (“Modern American land regulation has consistently and increasingly
relied on land developers to build or fund basic improvements and
infrastructure within property subdivisions they initiate, as well as requiring
that they contribute to off-site capital improvements necessitated by their
developments.”).
7 SAWS’s Utility Service Regulations correspondingly require that
“upon inspection and written acceptance for maintenance by SAWS, title to all
water and wastewater mains, lift stations, force mains and wastewater
treatment plants must be granted to SAWS,” “[w]hether a developer installs
the infrastructure at the developer’s cost or SAWS installs it under a developer
contract.” San Antonio Water System, UTILITY SERVICE REGULATIONS § 4.6
(Feb. 18, 2003) (hereinafter, SAWS REGS.). After SAWS issues a final
acceptance certificate, “the facilities become SAWS property free and clear of
all liens, claims and encumbrances.” Id. § 4.8.
8 The collection component “enables SAWS to fund or recover its
investment in wastewater collection and outfall mains, permanent lift stations,
force mains and related facilities installed to serve new customers,” while the

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accordance with the fees in effect at the time of plat recordation. 9
Impact fees are means by which a governmental entity may recoup the
costs of necessary capital improvements to serve a new development. 10
Once the Developer satisfied the initial payment obligation, SAWS
would then charge monthly fees for treatment and disposal of the tract’s
flows.
The Contract sets the maximum average daily flow from the tract
at 450,000 gallons per day, which equals 1,500 equivalent dwelling units
(EDUs), a standardized measure based on wastewater use attributable
to a single-family residence. 11 Before plat approval, however, SAWS’s
director would “make a final determination” of the maximum allowable
flow capacity but “may not reduce the capacity” below 1,500 EDUs if the
Developer materially complied with its contractual obligations. And by
paying “the collection and/or treatment” impact fees, the Developer

treatment component “enables SAWS to fund or recover its investment in
wastewater treatment facilities installed to serve new customers.” Id. § 2.1.
9 Alternatively, the impact fees may be calculated in accordance with

the fees in effect on “the latest date allowable by law.” The Contract lists
estimates of the impact fees at $366 per equivalent dwelling unit (EDU) for the
collection component and $750 per EDU for the treatment component. See id.
(defining an EDU as “[a] standardized measure” of the “wastewater
attributable to a single family residence”).
10 See TEX. LOC. GOV’T CODE § 395.001(4) (“‘Impact fee’ means a charge

or assessment imposed by a political subdivision against new development in
order to generate revenue for funding or recouping the costs of capital
improvements or facility expansions necessitated by and attributable to the
new development.”).
See SAWS REGS. § 2.1. According to the Contract, “[o]ne EDU
11

equates to 300 GPD [gallons per day] of average flows, and 750 peak GPD per
EDU for sizing of mains.”

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would acquire vested rights to the capacity. On the other hand, if the
Developer had not “completed construction of the off-site line and/or not
paid all impact fees required herein [in] order to earn vested rights and
collection component credits” before the ten-year term ended, the parties
agreed in the Contract that SAWS would continue to accept flows from
the tract, recognize the Developer’s right to any unused capacity, and
apply any impact-fee credits to which the Developer was entitled.
At the time the parties signed the Contract, SAWS was planning
a wastewater consolidation system for the Southside Independent
School District to serve the schools and surrounding developments.
Given the potential wastewater flows from the Developer’s nearby tract,
the Contract states that SAWS expected to include in its construction
bid an alternative oversize option for the sewer infrastructure—lift
stations and force mains 12—at two schools to increase SAWS’s flow
capacity (the Southside project). The Developer “must decide if [it]
wish[es] to participate” and be responsible for the share of the costs to
build the oversize option. But it had to decide “within 2 weeks of bid
opening” without “interrupt[ing] the project schedule,” pay its share “to
SAWS prior to contract award,” and be responsible for costs related to
any relevant change orders. If the Developer did not elect to participate,
it would be responsible for only the engineering fees related to preparing
the oversize option and, presumably, SAWS would bid the construction
of only the base model.

12 Lift stations and force mains, as their names imply, are designed to

pump sewage where “gravity wastewater mains are not practical or
economically feasible.” Id. § 11.4.1.

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 In exchange for its participation, the Developer would be eligible
under the Contract for collection impact-fee credits for its cost share. 13
These credits “attach to the real estate” and could be used to satisfy
some, or all, of the collection component of assessed impact fees, 14
depending on whether the credits exceeded the assessed amount. The
Contract states that the collection component of the impact fees “may
currently be estimated . . . at $366.00 Per EDU” (in other words,
$549,000 for 1,500 EDUs). SAWS also would be obligated to supply
sewer service “upon completion of the oversized project” and “acceptance
of an impact fee” without “the construction of a specific facility to provide
such sewer service, other [than] the [Southside] Project.” But because
the Southside project would not connect to the subdivisions, the
Developer would remain responsible for the costs, easements,
permitting, and construction of connecting infrastructure.
The record indicates that the Developer decided to participate in
the Southside project and paid its share of the costs—according to the
Developer, it “spent millions.” But the Developer acknowledged in its

13 SAWS’s regulations define “Impact Fee Credit” as “[a] dollar value

earned pursuant to section 15.9 of the regulations and credited against the
payment of water and wastewater impact fees.” Id. § 2.1. “These credits will
be earned based upon the portion of the total as-built construction cost of the
project funded by the developer customer including engineering fees up to ten
percent.” Id. § 15.9. The credits “will not have an expiration date,” “may be
transferred to another development owned by the same developer,” and “must
be used at the time of platting.” Id. Credits for impact fees are authorized
under Section 395.019 of the Local Government Code.
14 The collection credits could not be applied to the treatment component

of the impact fees. Under the Contract, the “Developer shall be assessed and
required to pay the entire treatment component of the sewer impact fee in
effect at the time of fee payment.”

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pleadings that it did not develop the subdivisions within the Contract’s
ten-year term. Instead, it waited until 2019—six years after the term
ended—to “commence development” and reach out to SAWS regarding
the 1,500-EDU capacity. Noting that the capacity had been set aside for
ten years, 15 SAWS responded that it now had no unused capacity.
SAWS offered to execute a new utility-service agreement with the
Developer to allocate capacity for the subdivisions but would require
either further upgrades to the Southside project or the construction of
an alternative lift structure for connection. SAWS estimated that to
supply 1,500 EDUs, the necessary upgrades would cost $7.7 million.
After an unsuccessful administrative appeal, 16 the Developer
sued the City by and through SAWS for breach of contract, seeking both
money damages and specific performance to supply the Developer with
a capacity of 1,500 EDUs. 17 The Developer alleged that by participating
in the Southside project and earning collection credits, it had acquired a

15 See id. § 15.6 (“For a customer who has a utility service agreement,

SAWS will recognize its commitment to set-aside water and wastewater
system capacity in infrastructure servicing the tract for the time period the
agreement is in effect.”).
16 SAWS’s rationale for denying the administrative appeal was that the

“Developer never paid the impact fees or drew down on impact fee credits
earned” and the Developer had the sole “power and control to actually develop
its tract and pay sewer collection and treatment impact fees within the 10 year
term . . . to earn guaranteed service capacity in the project.”
17 The Developer also sought a declaration (plus attorney’s fees) that

one of SAWS’s regulations did not apply to the Contract. The regulation
provided that previously issued sewer contracts that do not have an expiration
date would remain valid for a period of fifteen years from February 18, 2003.
The court of appeals concluded that governmental immunity was not waived
for this claim, 647 S.W.3d 751, 762-64 (Tex. App.—San Antonio 2022), and the
Developer does not challenge that portion of the judgment in this Court.

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vested right to the capacity and that SAWS breached the Contract by
allocating the capacity to others. 18 In response, SAWS asserted its
governmental immunity in a plea to the jurisdiction and then took an
interlocutory appeal from the trial court’s order denying the plea. 19
The court of appeals reversed, concluding that the Act did not
waive SAWS’s governmental immunity because the Contract was not an
agreement for providing goods or services to SAWS. 20 Relying primarily
on our opinion in Lubbock County Water Control & Improvement District
v. Church & Akin, L.L.C., 21 the court of appeals held: (1) the Contract’s
purpose was for the Developer to receive services from SAWS; (2) SAWS,
on the other hand, had no right to receive any services under the
Contract and no legal recourse if the Developer “unilaterally decided not
to proceed with the developments and not complete any provisions of the
contract”; (3) the Contract does not require SAWS to purchase any

18 The Developer argues that through its collection credits, it paid the

relevant “collection and/or treatment” impact fees to acquire a vested right
because the “and/or” means “and or or” and the treatment component was
never assessed. As explained in Part II.B, we do not reach the merits of this
argument.
19 See TEX. CIV. PRAC. & REM. CODE § 51.014(8) (providing for an
interlocutory appeal from the denial of a plea to the jurisdiction by a
governmental unit).
20 647 S.W.3d at 759, 764. The court of appeals remanded with
instructions to dismiss the cause and determine an award of attorney’s fees
and costs to the prevailing party under the Uniform Declaratory Judgments
Act. Id. at 764; see supra note 17.
21 442 S.W.3d 297, 304-05 (Tex. 2014). The court of appeals also relied
on its precedent interpreting Lubbock County. 647 S.W.3d at 761-62 (citing
CHW-Lattas Creek, L.P. v. City of Alice, 565 S.W.3d 779, 788-89 (Tex. App.—
San Antonio 2018, pet. denied), disapproved of on other grounds by City of
League City v. Jimmy Changas, Inc., 670 S.W.3d 494, 501-02 (Tex. 2023)).

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services from the Developer; (4) the purpose of the Southside project was
not “for the direct benefit of SAWS” but for the benefit of the Developer’s
subdivisions; and (5) any benefit SAWS received was indirect and not
part of the agreement’s essential terms. 22
The Developer petitioned this Court for review, which we granted.
II. Discussion
The Developer does not dispute that SAWS is a governmental
entity entitled to immunity. The jurisdictional question here, one we
review de novo, 23 is whether the Developer satisfied its burden to
establish, or at least raise a fact issue on, a waiver of that immunity. 24
The Developer relies on the waiver of immunity in Section 271.152 of
the Local Government Code. Although the statute unquestionably
waives immunity, the question is whether the Developer’s
breach-of-contract suit falls within its ambit.
In determining the scope of a statutory waiver of immunity, we
apply traditional principles of statutory interpretation to ascertain and
effectuate legislative intent as manifested in the enacted language. 25 To

22 647 S.W.3d at 759-62.

23 Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 97 (Tex. 2023).

24 See Lubbock Cnty., 442 S.W.3d at 305. Governmental immunity is a
form of sovereign immunity that applies to political subdivisions. Brown &
Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015). Sovereign
immunity implicates a court’s subject-matter jurisdiction, but the two are not
coextensive for all purposes. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 284 n.2
(Tex. 2022); see Rattray v. City of Brownsville, 662 S.W.3d 860, 867 (Tex. 2023)
(“One key reason that we use the ‘jurisdictional’ label [for sovereign immunity]
is because it reflects the judicial obligation to adjudicate only those claims that
are authorized without trespassing on the authority of the political branches.”).
25 EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 749 (Tex. 2020).

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the extent the analysis also requires interpreting the parties’ contract,
our primary objective is similarly to ascertain and give effect to their
“true intentions as expressed in the language they chose.” 26
A. The Local Government Contract Claims Act
We begin with a brief overview of governmental immunity and
the Act. Before 2005, “governmental immunity shielded a local
government from enforcement of its contract obligations.” 27 Justified on
“political, pecuniary, and pragmatic” grounds, 28 the doctrine protects
the public from the costs and consequences of their government’s
improvident actions and allows the Legislature to be the arbiter of when
tax resources should be shifted “away from their intended purposes
toward defending lawsuits.” 29 In the contract context, the doctrine
“ensures that current policymakers are neither bound by, nor held
accountable for, policies underlying their predecessors’ long-term
contracts.” 30

26 Rieder v. Woods, 603 S.W.3d 86, 94 (Tex. 2020) (quoting Plains Expl.

& Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015)).
27 San Antonio River Auth. v. Austin Bridge & Rd., L.P., 601 S.W.3d

616, 622 (Tex. 2020).
28 Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d

738, 740 (Tex. 2019).
29 Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d

697, 703-04 (Tex. 2019) (quoting Tex. Nat. Res. Conservation Comm’n v.
IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)).
30 Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.

2003) (quoting IT-Davy, 74 S.W.3d at 854).

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 As a common-law doctrine, the judiciary determines
governmental immunity’s initial applicability. 31 But it is the
Legislature’s province to balance the policy considerations in
determining when to waive immunity and to what extent. 32 We defer to
the Legislature, as the people’s representative body, so that it may
“protect its policymaking function,” “respond to changing conditions,”
and “revise existing agreements if doing so would benefit the public.” 33
To ensure “this legislative control is not lightly disturbed,” we look to
statutory law to determine if the Legislature has clearly and
unambiguously waived governmental immunity. 34
In 2005, the Legislature waived immunity for certain
breach-of-contract suits, 35 “alter[ing] decades of one-sided bargains, in
which local governments were wholly immune from breaches of their
obligations.” 36 Section 271.152 delineates when immunity is waived:

A local governmental entity that is authorized by statute
or the constitution to enter into a contract and that enters

31 Hays St. Bridge, 570 S.W.3d at 703.

32 Lubbock Cnty. Water Control & Improvement Dist. v. Church & Akin,

L.L.C., 442 S.W.3d 297, 300-01 (Tex. 2014).
33Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (quoting
IT-Davy, 74 S.W.3d at 854).
34Id. at 332-33; see TEX. GOV’T CODE § 311.034 (requiring statutory
waivers to be “effected by clear and unambiguous language”).
35 See Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex. Gen.

Laws 1548 (codified at TEX. LOC. GOV’T CODE §§ 271.151–.160). The waiver
applies retroactively “to claims based on contracts executed before the statute’s
effective date.” City of Dallas v. Albert, 354 S.W.3d 368, 372 (Tex. 2011).
36 San Antonio River Auth. v. Austin Bridge & Rd., L.P., 601 S.W.3d

616, 625 (Tex. 2020).

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 into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for
breach of the contract, subject to the terms and conditions
of this subchapter. 37

The parties’ dispute turns on whether SAWS entered into “a
contract subject to this subchapter,” which the Act defines to include “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.” 38 Three
components of this definition are at issue in this appeal: whether (1) the
Contract constitutes “a written contract” (2) that states “the essential
terms of the agreement” (3) “for providing . . . services” to SAWS. 39
1. “a written contract”
We first consider the threshold requirement to establish a waiver
of governmental immunity under the Act: the existence of a written
contract. 40 To constitute “a written contract,” an agreement must be
reduced to writing and satisfy the basic requirements of contract
formation, 41 although it need not “ultimately be enforceable to clear the

37 TEX. LOC. GOV’T CODE § 271.152.

38 Id. § 271.151(2)(A).

39 Because SAWS signed and adopted the Contract by resolution, the

parties do not dispute whether the Contract was “properly executed on behalf
of the local governmental entity.” See id.; supra note 4.
40 See City of Denton v. Rushing, 570 S.W.3d 708, 711 (Tex. 2019).

41 See El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d

521, 534 n.66 (Tex. 2020) (“[F]or an ‘agreement’ to be subject to section
271.152’s waiver of immunity, it must, of course, be a contract.”); City of
Denton, 570 S.W.3d at 713 (“For governmental immunity to be waived under
[the Act], there must first be an enforceable, written contract.”); City of

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jurisdictional hurdle.” 42 If the formation requirements are not satisfied,
there is no contract for a governmental entity to “enter[],” regardless of
any written instrument purporting to be a contract. 43
Generally, “the formation of a contract requires a bargain in
which there is a manifestation of mutual assent to the exchange and a
consideration.” 44 Expanding on the court of appeals’ holding that the
Developer could have unilaterally decided not to complete any
provisions of the Contract, 45 SAWS challenges whether the Contract

Houston v. Williams, 353 S.W.3d 128, 135, 143 (Tex. 2011) (noting that the
written contract must satisfy “the basic requirements of contract law”).
42 Amex Props., 602 S.W.3d at 534 n.66; see TEX. LOC. GOV’T CODE
§ 271.155 (“This subchapter does not waive a defense or a limitation on
damages available to a party to a contract, other than a bar against suit based
on sovereign immunity.”); TEX. R. CIV. P. 94 (listing contract-avoidance
defenses); RESTATEMENT (SECOND) OF CONTRACTS § 8 cmt. b (AM. LAW INST.
1981) (describing types of unenforceable contracts).
43 See, e.g., Williams, 353 S.W.3d at 135, 143 (assuaging fears that
ordinances will waive immunity under the Act by noting “this fear overlooks
the basic requirements of contract law—just as with any writing alleged to be
a contract, an ordinance can only be enforced as a contract in a court of law if
it satisfies the requirements of a contract”).
44 RESTATEMENT (SECOND) OF CONTRACTS § 17(1) (AM. LAW INST. 1981);

id. § 3 (“A bargain is an agreement to exchange promises or to exchange a
promise for a performance or to exchange performances.”); see Fed. Sign v. Tex.
S. Univ., 951 S.W.2d 401, 408 (Tex. 1997) (“A contract must be based upon a
valid consideration, in other words, mutuality of obligation.”). Certain
contracts, including formal contracts, may be subject to special rules that do
not require a bargain or consideration. See, e.g., 1/2 Price Checks Cashed v.
United Auto. Ins. Co., 344 S.W.3d 378, 385 n.20 (Tex. 2011) (noting that a
formal contract “includes unique formation requirements inapplicable to
simple contracts” while “the requirements for informal or simple contracts,
such as consideration and mutual assent, ‘are generally inapplicable to formal
contracts’” (quoting 1 WILLISTON ON CONTRACTS § 1:1 (4th ed. 2007))).
45 647 S.W.3d 751, 759 (Tex. App.—San Antonio 2022).

14
satisfies these formation requirements. According to SAWS, because
the Developer’s performance of developing the tract and connecting to
SAWS’s sewer system was optional, the Contract constitutes only a
“unilateral option agreement that [the Developer] had the opportunity
to accept by performance within ten years,” and a unilateral contract
“would not form until [the Developer] fully performed, which never
occurred.” 46 The Developer disputes this characterization, arguing that
the Contract is bilateral (with some unilateral aspects) but even if not,
the Developer’s actual participation in the Southside project formed a
contract.
Typically, parties enter into a written contract through signing a
document, 47 and subsequent performance—like participation in the

46 A unilateral contract occurs “‘when there is only one promisor and the

other accepts . . . by actual performance,’ rather than by the usual mutual
promises” exchanged in a bilateral contract. Williams, 353 S.W.3d at 136
(quoting Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 302 (Tex. 2009)). “A
unilateral contract becomes enforceable when the promisee performs” because
“[t]he requirement of mutuality is not met by an exchange of promises; rather,
the valuable consideration contemplated in ‘exchange for the promise is
something other than a promise,’ i.e., performance.” Id. (quoting
RESTATEMENT OF CONTRACTS § 12 cmt. a (AM. LAW INST. 1932)); see Sunshine
v. Manos, 496 S.W.2d 195, 198 (Tex. Civ. App.—Tyler 1973, writ ref’d n.r.e.)
(“Where a contract is unilateral on its face, it does not come into existence as a
binding contract until the [offeree] has performed, or at least partly performed,
his duties under the agreement. Prior to that time, it is nudum pactum and
may be revoked by the offeror at any time.”); Nudum Pactum, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“An agreement that is unenforceable as a contract
because it is not ‘clothed’ with consideration.”).
47See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007)
(“Evidence of mutual assent in written contracts generally consists of
signatures of the parties and delivery with the intent to bind.”). But see, e.g.,
Amex Props., 602 S.W.3d at 532 (noting that because certain charter schools
operate pursuant to statute, “they may enter into a contract only in the manner

15
Southside project—would not be relevant to whether a contract is
subject to the Act. 48 But for unilateral contracts, considering
subsequent performance may be necessary to determine whether a
contract was formed and when the governmental entity “enter[ed] into”
it. 49 In City of Houston v. Williams, for example, we considered whether
city ordinances that promised firefighters overtime and termination pay
in exchange for their services and “required acceptance by performance”
constituted a contract subject to the Act. 50 We noted that “a unilateral
employment contract is created when an employer promises an
employee certain benefits in exchange for the employee’s performance,
and the employee performs.” 51 Because the firefighters accepted the
city’s promised terms through their subsequent performance, we held
that the ordinances “constitute a unilateral contract that became
effective and enforceable as to these retired Firefighters who have
completed the requested performance.” 52
Here, however, we need not decide whether the Contract was a
unilateral option agreement or a bilateral contract at the time the
parties signed it. The Developer proffered evidence that it decided to

the legislature has authorized,” and “[i]t is not enough, then, that [their]
representative signs a contract”).
48 See Lubbock Cnty. Water Control & Improvement Dist. v. Church &

Akin, L.L.C., 442 S.W.3d 297, 304 (Tex. 2014) (noting that the written
agreement’s terms “determine[] whether immunity is waived”).
49 See TEX. LOC. GOV’T CODE § 271.152.

50 353 S.W.3d 128, 136-38 (Tex. 2011).

51 Id. at 136 (emphasis added).

52 Id. at 143.

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participate in and performed on the Southside project, thereby showing
that a contract would have formed through either acceptance or actual
performance of the option to participate.
In the Contract, SAWS promised the Developer an option to
participate in the Southside project. If it “decide[d]” to participate
“within 2 weeks of bid opening,” the Developer would be prohibited from
interrupting the project schedule, obligated to pay its share of the
oversizing costs “prior to contract award,” and responsible for its cost
share of any change orders. In return, the Developer would be eligible
for collection credits that it could use to satisfy a portion, or all, of its
collection impact fees. Obligations also extended beyond the Contract’s
term whether or not the Southside project was completed: SAWS would
continue to accept wastewater flows, recognize a right to remaining
unused capacity, and apply the Developer’s impact-fee credits. 53 Both
sides exchanged promises regarding their respective obligations related
to the option, and SAWS would “enter[] into” that contract on its
formation through the Developer’s acceptance of the option. 54

53 SAWS asserts that this Contract provision memorializes “the default

positions SAWS takes toward any customer.” But SAWS does not cite any
evidence to support this claim. And in denying the administrative appeal,
SAWS stated that “[p]ursuant to” this Contract provision, it “would have
continued to permit the Developer to connect [after the ten-year term] so long
as: [(]i) the Developer paid all impact fees required under the Contract; and
(ii) there remained unused project capacity.” (Emphasis added.)
54 See Courseview, Inc. v. Phillips Petroleum Co., 312 S.W.2d 197, 207

(Tex. 1957) (noting that an option becomes a bilateral contract when accepted
by the optionee); cf. Pitman v. Sanditen, 626 S.W.2d 496, 498 (Tex. 1981)
(holding that “a binding, bilateral contract is formed” when a tenant under a
lease exercises an option to purchase contained in the lease).

17
 Alternatively, SAWS’s unilateral-contract theory leads to a
similar result. If the Developer performed by participating in and
funding the Southside project, SAWS’s putative unilateral offer would
become a unilateral contract. 55 Even if the project constituted only
partial performance of the Contract as a whole, the Contract imposes
legal obligations on SAWS based on the Developer’s performance on the
Southside project, including that the Developer would be eligible for
collection credits. 56
In the lower courts, it was undisputed that the Developer decided
to participate in and timely completed the Southside project. 57 The
Developer also attached to its response to SAWS’s plea to the
jurisdiction an email exchange between SAWS and an engineer stating
that the oversized design for the Southside project “was chosen, funded

55 See Williams, 353 S.W.3d at 138 (noting that promises to compensate

firefighters were “a unilateral contract that became binding when the
Firefighters performed”).
56 See Hutchings v. Slemons, 174 S.W.2d 487, 489 (Tex. [Comm’n Op.]

1943) (holding that partial performance rendering services or expenses
contemplated at the time a contract was made, even though the contract was
void for lack of mutuality, will render the entire contract valid and
enforceable); Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215,
224-25 (Tex. App.—Fort Worth 2009, pet. denied) (“[E]ven if an illusory
promise renders a contract unilateral, consideration can still be established by
part performance by the promisee.”); Sunshine v. Manos, 496 S.W.2d 195, 199
(Tex. Civ. App.—Tyler 1973, writ ref’d n.r.e.) (“The decisions in this state,
however, seem to indicate that partial performance of a unilateral contract is
sufficient to make the same a binding contract.”).
57 See 647 S.W.3d 751, 763 (Tex. App.—San Antonio 2022) (“It is
undisputed that before the provisions of the contract expired on June 6, 2013,
[the Developer] completed construction of the off-site facilities as required by
the contract.”).

18
by the Developer & constructed.” Under our standard for reviewing
plea-to-the-jurisdiction evidence that implicates the merits of the case,
this evidence satisfies the initial inquiry of whether SAWS entered into
a written contract. 58
We reiterate that this jurisdictional hurdle does not require proof
of the contract’s ultimate enforceability; rather, it is sufficient for a
plaintiff to raise a fact issue on the formation of the written contract. 59
Clearing this initial hurdle is merely an opening move for a plaintiff to
have its day in court, a move that does not require rigorous proof, the
marshaling of all evidence, or conclusively establishing one’s claim. 60
Because the Developer has met this threshold burden, we turn now to
“the terms of the written agreement”—“the substance that determines
whether immunity is waived.” 61

58Our review parallels that of a summary judgment: we “view the
evidence in a light favorable to the nonmovant, indulging reasonable
inferences from that evidence in the nonmovant’s favor.” Fraley v. Tex. A&M
Univ. Sys., 664 S.W.3d 91, 97 (Tex. 2023).
59 El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d 521,

534 n.66 (Tex. 2020).
60 See Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023)

(“The rigor of proof required to satisfy a court that jurisdiction [based on waiver
of immunity] is present increases at each stage of litigation, as with disputes
over traditional subject-matter jurisdiction.”); Alamo Heights Indep. Sch. Dist.
v. Clark, 544 S.W.3d 755, 805 (Tex. 2018) (“The plaintiff is not required to
marshal all her evidence and conclusively prove her claim to satisfy this
jurisdictional hurdle.”).
61 Lubbock Cnty. Water Control & Improvement Dist. v. Church & Akin,

L.L.C., 442 S.W.3d 297, 304 (Tex. 2014).

19
 2. “stating the essential terms of the agreement”
For a written contract to be “subject to” the Act, it must state “the
essential terms of the agreement.” 62 The Developer primarily relies on
the written terms related to its option to participate in the Southside
project. SAWS does not dispute the existence of any “essential” terms—
the “basic obligations” to participate “are clearly outlined” in the
Contract. 63 Rather, citing Lubbock County, SAWS argues, and the court
of appeals held, that there was no “agreement” to participate for two
primary reasons: (1) SAWS had no contractual right to the Developer’s
participation at the time the parties signed the Contract; and (2) the
Contract contained no terms requiring SAWS to pay the Developer. 64 In
considering each of these arguments, we clarify Lubbock County’s scope
and conclude that neither reason prevails here.

62 TEX. LOC. GOV’T CODE § 271.151(2)(A).

63 See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d

829, 838 (Tex. 2010) (“The Agreements here are written contracts stating their
essential terms. The names of the parties, property at issue, and basic
obligations are clearly outlined.”); see also Dall./Fort Worth Int’l Airport Bd. v.
Vizant Techs., LLC, 576 S.W.3d 362, 369 (Tex. 2019) (noting that whether
terms are essential “depends on the specific contract” and if the parties would
reasonably regard them as “‘vitally important ingredient[s]’ of their bargain”
(quoting Fischer v. CTMI L.L.C., 479 S.W.3d 231, 237 (Tex. 2016))).
64 See 647 S.W.3d 751, 759-62 (Tex. App.—San Antonio 2022). The court

of appeals and SAWS also relied on these arguments to claim that the Contract
provides only an “indirect, attenuated” benefit to SAWS. See Lubbock Cnty.,
442 S.W.3d at 303 (noting that the Act “would not extend to ‘contracts in which
the benefit that the local governmental entity would receive is an indirect,
attenuated one’” (quoting Kirby Lake, 320 S.W.3d at 839)). Although the
contingent nature of an agreement’s terms may inform that question, whether
the essential terms were agreed to is a distinct analytical inquiry.

20
 In Lubbock County, we considered whether a lessee agreed to
provide marina-operation services to a water district when a lease
provision required the district’s premises “to be used only as a Lake
marina.” 65 Although we noted that both parties “may have
contemplated that [the lessee] would operate a marina,” we recognized
the distinction between restricting the use of property to a specific
purpose, which imports no obligation to use the premises, and requiring
the use of property for a specific purpose. 66 In concluding that the
use-restriction provision was not an agreement to provide services, we
explained, “When a party has no right under a contract to receive
services, the mere fact that it may receive services as a result of the
contract is insufficient to invoke [the Act’s] waiver of immunity.” 67
The court of appeals construed Lubbock County as requiring an
enforceable contractual right to the provision of services in the first
instance. 68 In the usual case, a contract subject to the Act would provide
this contractual right. But Lubbock County left open the possibility that
something more than the “mere fact” that services may be received could
trigger the Act’s waiver, even if there was no enforceable contractual
right in the first instance. 69 Our approach was faithful to the statutory

65 442 S.W.3d 297, 303 (Tex. 2014).

66 Id.

67 Id. (emphasis added).

68 See 647 S.W.3d at 759, 761-62 (concluding the Act did not apply
because “[u]nder the contract, SAWS had no right to receive services” and no
“legal recourse” if the services were not provided).
69 To the extent courts of appeals have restrictively construed Lubbock

County to preclude this possibility, we disapprove them. See, e.g., Big Blue

21
language: the Act does not require a “written contract that is an
agreement for providing . . . services” 70 but a contract that states the
essential terms of an agreement for providing services. 71 An
“agreement” is “a manifestation of mutual assent.” 72 Although mere
contemplation of services being performed, as in Lubbock County, is not
“a manifestation of mutual assent” to service terms, 73 an “agreement”
does not necessarily create an enforceable contractual right to those
services at the time those terms are stated and in the first instance. 74

Props. WF, LLC v. Workforce Res., Inc., No. 02-21-00135-CV, 2022 WL
1793516, at *3 (Tex. App.—Fort Worth June 2, 2022, pet. denied) (noting that
the “affirmative act” of service “must be required by the written contract”); W.
Travis Cnty. Pub. Util. Agency v. Travis Cnty. Mun. Util. Dist. No. 12, 537
S.W.3d 549, 555 (Tex. App.—Austin 2017, pet. denied) (noting that “the
governmental entity must in the first instance have a right under the contract
to receive services”); see also CHW-Lattas Creek, L.P. v. City of Alice, 565
S.W.3d 779, 788-89 (Tex. App.—San Antonio 2018, pet. denied) (citing Lubbock
County and West Travis), disapproved of on other grounds by City of League
City v. Jimmy Changas, Inc., 670 S.W.3d 494, 501-02 (Tex. 2023).
70 Lubbock Cnty., 442 S.W.3d at 302.

71 TEX. LOC. GOV’T CODE § 271.151(2)(A).

72 RESTATEMENT (SECOND) OF CONTRACTS § 3 (AM. LAW INST. 1981); see

id. § 5 (“A term of a promise or agreement is that portion of the intention or
assent manifested which relates to a particular matter.”).
73 See 442 S.W.3d at 303 (holding that “although both parties may have

contemplated” the operation of a marina, this was insufficient for the Act’s
waiver to apply).
74 See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 3 cmt. a (AM. LAW

INST. 1981) (“Agreement has in some respects a wider meaning than contract”
because “[t]he word ‘agreement’ contains no implication that legal
consequences are or are not produced”—for example, it applies to transactions
“that are wholly executory.”); 1 WILLISTON ON CONTRACTS § 1:19 (4th ed. 2007)
(“An ‘executory contract’ is one in which the promisee’s rights do not

22
 Our case law confirms this. In Williams, the city ordinances
stated the terms for firefighters to provide services, but the city did not
have an enforceable contractual right to their services. And after the
terms were mutually assented to—through the firefighters’
performance—and a unilateral contract had been formed, the city had
already received the services. 75 The contract was subject to the Act even
though the city never had an enforceable contractual right to receive
those services.
Nor must a contractual right necessarily be enforceable in the
first instance. Consider, for example, a contract that satisfies formation
requirements but predicates service obligations on certain conditions
precedent. “Conditions precedent to an obligation to perform are those
acts or events, which occur subsequently to the making of a contract, that
must occur before there is a right to immediate performance and before
there is a breach of contractual duty.” 76 Such a contract would state

immediately come into existence but are conditioned upon some further
performance, usually by the promisee.”).
75 See City of Houston v. Williams, 353 S.W.3d 128, 138 (Tex. 2011)

(noting that the unilateral contract “became binding when the Firefighters
performed”).
76 Allstate Ins. Co. v. Irwin, 627 S.W.3d 263, 270 (Tex. 2021) (quoting

Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976));
see id. (“A condition precedent may be either a condition to the formation of a
contract or to an obligation to perform an existing agreement.” (quoting Dillon
v. Lintz, 582 S.W.2d 394, 395 (Tex. 1979))); see also James Constr. Grp., LLC
v. Westlake Chem. Corp., 650 S.W.3d 392, 404 (Tex. 2022) (“‘A condition
precedent is an event that must happen or be performed before a right can
accrue to enforce an obligation.’ ‘If the condition is not fulfilled, the contract
or obligation attached to the condition cannot be enforced.’” (internal citations
omitted) (quoting Solar Applications Eng’g, Inc. v. T.A. Operating Corp., 327

23
terms for providing services that were agreed to, even if the contractual
right was not immediately enforceable.
We need not spell out the precise contours of these distinctions
here. As we have already explained, the acceptance of the Developer’s
option to participate would create a contractual right to its participation
and share of the costs. And under SAWS’s unilateral-contract theory,
the Developer’s actual performance would have provided the necessary
manifestation of mutual assent, as the firefighters’ performance in
Williams did. One way or another, the record indicates that the parties
agreed to the terms of the Developer’s participation in the Southside
project at the relevant time of contract formation.
We next consider SAWS’s argument regarding the absence of a
payment provision. In Lubbock County, we found further support for
our conclusion that the parties did not mutually assent to the provision
of services because the lease contained no terms in which the district
agreed to pay “any amount” for the lessee to provide marina-operation
services. 77 We also noted that the Act limited recoverable damages to
“‘the balance due and owed by the local governmental entity under the

S.W.3d 104, 108 (Tex. 2010), and CDI Eng’g Grp., Inc. v. Admin. Exch., Inc.,
222 S.W.3d 544, 548 (Tex. App.—Houston [14th Dist.] 2007, pet. denied))).
77 442 S.W.3d at 305; see Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 240

(Tex. 2016) (“‘The failure of the parties to reach some understanding as to price
often indicates that there has been no meeting of the minds,’ and ‘a contract
which does not fix the price or consideration or provide an adequate way in
which it can be fixed is too incomplete to be specifically enforceable.’” (quoting
Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex. 1966))).

24
contract,’ plus attorney’s fees and interest.” 78 Construing the Act’s
immunity waiver in light of this damages limitation, we recognized that
the “waiver will typically apply only to contracts in which the
governmental entity agrees to pay” for the services. 79
But the absence of a payment provision is not dispositive. We
held that it “may indicate that the claimant did not in fact agree to
provide” the services. 80 And we also noted that a party may agree to
provide services “in exchange for something other than payment.” 81
Moreover, since Lubbock County, we have (1) recognized that the Act’s
damages limitation did not preclude specific performance as a remedy 82
and (2) broadly interpreted the statutory phrase “the balance due and
owed” to mean “the amount of damages for breach of contract payable
and unpaid,” even if the amount is not “stated in,” “expressly provided
for in,” or even “ascertainable from” the contract. 83 Lubbock County and
its progeny instruct that the absence of an express money-payment
provision, standing alone, must not be given too much weight in

78 Lubbock Cnty., 442 S.W.3d at 304 (quoting TEX. LOC. GOV’T CODE

§ 271.153(a)(1)(3)).
79 Id.

80 Id. at 305 (emphasis added).

81 Id.

82 Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d

697, 707-08 (Tex. 2019).
83 Zachry Constr. Corp. v. Port of Hous. Auth., 449 S.W.3d 98, 111-12,

114 (Tex. 2014); see Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320
S.W.3d 829, 840 (Tex. 2010) (“The purpose of section 271.153 is to limit the
amount due by a governmental agency on a contract once liability has been
established, not to foreclose the determination of whether liability exists.”).

25
determining whether contracting parties agreed to service terms, so long
as the service terms are “sufficiently definite to ‘enable a court to
understand the parties’ obligations,’ and to give ‘an appropriate remedy’
if they are breached.” 84
In marked contrast to Lubbock County, there is no dispute here
that the parties agreed to and expressly chose a method of exchange—
collection credits—for the Developer’s participation. 85 These collection
credits could be used to satisfy the assessed collection impact fee, which
the Contract estimates would cost $549,000 for 1,500 EDUs. SAWS
nevertheless alleges that these credits “do not provide financial value”
because credits and impact fees are a functionally equivalent and
interchangeable means of ensuring a developer of new property bears
the cost of the necessary infrastructure to serve that development. 86 In
the abstract and from a regulatory perspective, SAWS may be correct.
In practice and from a developer’s perspective, however, the credits and
fees are not equivalent. By agreeing to be eligible for collection credits
that could then be used to satisfy impact fees, the Developer exercised
greater control over when it would expend resources to fund off-site

84 Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (quoting

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.
2000), and RESTATEMENT (SECOND) OF CONTRACTS § 33(2) (AM. LAW INST.
1981)).
85 See Lubbock Cnty., 442 S.W.3d at 304-05 (“This lease agreement
contains no terms in which the Water District agreed to pay [the lessee] any
amount for its services, so there is no amount that is ‘due and owed [from the
district to the lessee] under the contract.’ Instead, [the lessee] agreed to pay
the Water District for a leasehold interest in the property.”).
86 See TEX. LOC. GOV’T CODE § 395.019 (describing how impact fees may

be collected in areas where services are not currently available).

26
infrastructure while receiving a guarantee that additional off-site
infrastructure construction would not be necessary. 87 The Contract also
expressly contemplates that the collection credits could exceed the
assessed collection impact fees. 88 And under SAWS’s regulations, these
credits would not expire and are transferrable “to another development
owned by the same developer.” 89 Given this, we disagree that the credits
provide the Developer with no value.
In sum, the Contract states the essential terms for the Developer
to participate in the Southside project, the parties manifested mutual
assent to those terms through the Developer’s participation, and the
parties agreed that the Developer would be eligible for collection credits
in exchange for its participation.
3. “agreement for providing . . . services” to SAWS
Although the Contract states the essential terms of an agreement
for the Developer to participate in the Southside project, it would not be
subject to the Act unless the agreement was for providing services to
SAWS. 90 We have taken a broad view of what “services” encompasses,

87 As previously noted, the Developer’s right to SAWS’s sewer service

would not require “the construction of a specific facility to provide such sewer
service, other [than] the [Southside] Project.”
88 The Contract provides that the Developer would earn collection
credits if its share of the costs for the Southside project “is greater than the
assessed amount of the sewer collection component of the impact fee.”
89 See supra note 13. The 2016 revisions to SAWS’s regulations also
allow credits earned under Section 15.9 to be transferred to another developer.
San Antonio Water System, UTILITY SERVICE REGULATIONS § 15.9 (Feb. 9,
2016).
90 See TEX. LOC. GOV’T CODE § 271.151(2)(A).

27
holding that it “includes generally any act performed for the benefit of
another.” 91 The only limitation our case law imposes is that the services
must provide more than a mere “‘indirect, attenuated’ benefit.” 92
In our analogous decision in Kirby Lake Development, Ltd. v.
Clear Lake City Water Authority, we addressed whether certain
agreements for developers to construct water and sewer facilities
according to a water authority’s specifications were for providing
services to the authority. 93 The agreements also stipulated that the
developers would lease the facilities to the authority free of charge until
the authority—if it received voter-approved bond funds—purchased
them by partially reimbursing construction costs. 94 In considering those
services, we cited with approval a court of appeals’ decision that an
“agreement to hire third parties to construct the Facilities and to build
the streets, roads, and bridges is . . . sufficient to constitute the provision
of services to the authority.” 95 Drawing on this holding, we concluded
that the agreements entailed “services provided directly to” the
authority. 96

91 San Antonio River Auth. v. Austin Bridge & Rd., L.P., 601 S.W.3d

616, 629 (Tex. 2020) (quoting Kirby Lake Dev., Ltd. v. Clear Lake City Water
Auth., 320 S.W.3d 829, 839 (Tex. 2010)).
92 Id. (quoting Kirby Lake, 320 S.W.3d at 839).

93 320 S.W.3d at 832, 838-40.

94 Id. at 832-33.

95 Id. at 839 (quoting Clear Lake City Water Auth. v. Friendswood Dev.

Co., 256 S.W.3d 735, 751 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d),
disapproved of on other grounds by Rusk State Hosp. v. Black, 392 S.W.3d 88,
95 (Tex. 2012)).
96 Id.

28
 Similarly, the Developer here agreed to the terms to participate
in and fund the construction of off-site oversized lift stations and sewer
mains—capital improvements 97—according to SAWS’s specifications.
After determining the capital improvements would “be an integral part
of [SAWS]’s regional sewerage system” and accepting them, SAWS
would own the infrastructure and generate revenue through monthly
service fees in servicing the developments with this capacity. 98 If there
was any unused capacity, SAWS had the contractual right “to connect
wastewater flows from other developments” and could use the
infrastructure to service other developments and generate additional
revenue, as it apparently did after the ten-year term passed. And by
exchanging collection credits for participation, SAWS received the
benefit of having its capital improvements financed at the time of
construction without the up-front expenditure of governmental funds. 99
No doubt, the services to SAWS were not the central purpose of
the Contract, which states that the Southside project was “to
accommodate flows from the [Developer’s] development.” But we have
repeatedly emphasized that the agreement to provide services need not

See TEX. LOC. GOV’T CODE § 395.001(1)(A) (defining “capital
97

improvement” to include “wastewater collection and treatment facilities”).
98 See Byrdson Servs., LLC v. S. E. Tex. Reg’l Plan. Comm’n, 516 S.W.3d

483, 488 (Tex. 2016) (noting the important “factual” but not “fateful”
distinction that “in Kirby Lake the parties contemplated that the governmental
entity would ultimately own the facilities constructed by the developers”).
99See Tex. Att’y Gen. Op. No. GA-0788, at 3 (2010) (noting that
impact-fee credits are “a method to finance capital improvements in a new
development without up-front expenditure of governmental funds”).

29
be the “primary purpose,” 100 provided the benefits to the governmental
entity are “sufficiently direct and concrete.” 101 Although the Kirby Lake
homeowners—and not the governmental entity—were “arguably the
ultimate beneficiaries of the developers’ efforts to build water and sewer
facilities,” this circumstance did not take those contracts outside the
Act’s scope. 102 So too here. On this plea-to-the-jurisdiction record, when
the Developer participated in the Southside project and a contract
formed, the agreement’s benefits to SAWS were sufficiently direct and
concrete for the Contract to fall within the Act’s scope.

* * *
Because the Developer adduced evidence that SAWS entered into
a written contract that states the essential terms of an agreement for
providing services to SAWS, the trial court correctly denied SAWS’s plea
to the jurisdiction. The court of appeals erred in concluding otherwise.
B. Dilatory Plea
Finally, SAWS broaches the merits in this appeal, challenging
whether the Developer acquired a vested right to the 1,500 EDUs. We
express no opinion on this matter. A dilatory plea’s purpose “is to defeat
a cause of action without regard to whether the claims asserted have

Kirby Lake, 320 S.W.3d at 839; Lubbock Cnty. Water Control &
100

Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 302 (Tex. 2014).
101 Byrdson Servs., 516 S.W.3d at 487.

102 Id. (discussing Kirby Lake, 320 S.W.3d at 839).

30
merit,” “not to force the plaintiffs to preview their case on the merits.” 103
When an authorized local governmental entity enters into a contract
subject to the Act, immunity from suit is waived “for the purpose of
adjudicating a claim for breach of the contract,” 104 but “[t]he waiver does
not depend on the outcome.” 105 Here, the Developer has “plead[ed] facts
with some evidentiary support that constitute a claim for which
immunity is waived” and has shown that it is entitled, at least for now,
to its day in court against SAWS. 106
III. Conclusion
For these reasons, we reverse the court of appeals’ judgment and
remand the case to the trial court for further proceedings consistent with
this opinion.

John P. Devine
Justice

OPINION DELIVERED: April 12, 2024

103 Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489

S.W.3d 448, 453 (Tex. 2016) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000)).
104 TEX. LOC. GOV’T CODE § 271.152.

105 Zachry Constr. Corp. v. Port of Hous. Auth., 449 S.W.3d 98, 110 (Tex.

2014).
106 See id.; see also Kirby Lake, 320 S.W.3d at 839 (noting that immunity

may be waived under the Act even though “the part of the contract on which
the plaintiff based its claim did not involve the provisions of good[s] or services
to the local governmental entity” (quoting Clear Lake City Water Auth. v.
Friendswood Dev. Co., 256 S.W.3d 735, 746 n.13 (Tex. App.—Houston [14th
Dist.] 2008, pet. dism’d), disapproved of on other grounds by Rusk State Hosp.
v. Black, 392 S.W.3d 88, 95 (Tex. 2012))).

31