Opinion
No. 01-05-01064-CV
Opinion issued April 6, 2006.
On Appeal from the 9th District Court, Waller County, Texas, Trial Court Cause No. 02-09-16543.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
MEMORANDUM OPINION
Michael Curtis, appellee, brought suit against Waller County, Texas, appellant, in 2002, alleging breach of contract. Waller County filed a plea to the jurisdiction, which the trial court denied. Waller County subsequently filed a motion for summary judgment, which the trial court also denied. After the case was placed on the dismissal docket and then removed, Waller County again filed a plea to the jurisdiction. The trial court denied the plea, and Waller County filed this interlocutory appeal.
In its sole point of error, Waller County argues that the trial court erred in denying its plea to the jurisdiction. Specifically, Waller County argues that the trial court lacks subject-matter jurisdiction because the county's immunity from suit was not waived.
We reverse and render.
Background
In 2000, Waller County placed an advertisement in a local paper, requesting bids for hauling asphalt. Curtis submitted his bid. After the bids were opened, Curtis was awarded the contract. Subsequently, the county auditor realized that Curtis's bid did not comply with the bidding requirements. The County Commissioners Court decided to rescind the award to Curtis and to award it instead to another bidder. Curtis brought suit, alleging in his claim of damages that he had assembled a work crew and had contracted to purchase another truck to perform the work.
Sovereign Immunity
In its sole point of error, Waller County argues that the trial court erred in denying their plea to the jurisdiction based on Waller County's claim of sovereign immunity.
A. Standard of Review
A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Pineda v. City of Houston, 175 S.W.3d 276, 279 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Subject-matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Id. at 446; Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967).
The existence of subject-matter jurisdiction is a question of law. State Dep't of Highways Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we review de novo the trial court's ruling on a plea to the jurisdiction. Mayhew, 964 S.W.2d at 928. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
B. Analysis
Under the principle of sovereign immunity, the State is protected from suit unless the immunity is waived. Gen. Servs. Comm'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001). The State's protection from suit extends to counties. Travis County. v. Pelzel Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). There are two distinct components to sovereign immunity: (1) immunity from suit and (2) immunity from liability. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).
"Immunity from suit bars a suit against the State unless the State expressly gives its consent to the suit. . . . The State may consent to suit by statute or by legislative resolution." Id. Legislative waiver of immunity from suit must be by clear and unambiguous language. Id. (quoting Univ. of Texas Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994)).
Immunity from liability protects the State unless the State acknowledges liability. Federal Sign, 951 S.W.2d at 405. When the State contracts with a private party, it waives immunity from liability. Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). However, waiver of immunity from liability does not waive immunity from suit. Little-Tex Insulation, 39 S.W.3d at 594.
Assuming without deciding that a contract was formed between Waller County and Curtis — waiving immunity from liability, there is no evidence that immunity from suit was ever waived. Curtis does not cite any statute waiving Waller County's immunity from suit for his breach of contract claim. Nor was there evidence presented of a legislative resolution waiving immunity from suit.
Curtis has filed with this court "Appellee's Advisory Regarding Brief" (the "Advisory"), in which he informs the court that he has chosen not to respond to Waller County's brief and relies on his "arguments made in the courts below." However, Curtis also asserts in the Advisory that Waller County has waived its immunity through its conduct by soliciting private bids for a contract with the county.
The Texas Supreme Court has suggested that immunity from suit could be waived by the State's conduct. Federal Sign, 951 S.W.2d at 408 n. 1. However, it has also held that acts that "constitute nothing more than acts of contract formation" do not waive immunity from suit. Catalina Development, 121 S.W.3d at 706. In Catalina Development, El Paso County "solicited bids for purchasing a parcel of land, accepted the highest bid, deposited the tendered earnest money, and sent the purported buyer a warranty deed and affidavit to be used to close the transaction." Id. at 704. However, before the county signed the deed, newly elected commissioners took their position on the commissioners court and refused to approve the sale. Id. The Texas Supreme Court held that the county's actions — including soliciting bids in the local paper — "are the kind that are necessary and expected during contract formation." Id. at 706. In this case, Waller County's actions were also "the kind that are necessary and expected during contract formation." Therefore, it did not waive immunity by soliciting bids.
In its response to Waller County's second plea to the jurisdiction, Curtis asserted that Waller County waived its immunity because of the sue-and-be-sued language in the county's charter. However, Curtis did not provide evidence of the county's charter to the trial court. As this argument is unsupported by the record, it could not have been a basis for the trial court's denial of the plea to the jurisdiction. See Caramanian v. Houston Indep. School Dist., 829 S.W.2d 814, 816 (Tex.App.-Houston [14th Dist.] 1992, no writ) (holding trial court's ruling must be affirmed if it is supported by evidence).
Because there is no evidence of the legislature waiving immunity from suit by statute or by resolution, and because Waller County did not waive immunity from suit by its conduct, we hold that Curtis is barred from bringing suit against Waller County.
We sustain appellant's sole point of error.
Conclusion
We reverse the trial court's order denying Waller County's plea to the jurisdiction and render judgment that the County's plea to the jurisdiction be sustained and that Curtis's suit against Waller County be dismissed.