COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICARD O A. SAMANIEGO

, in his o fficial

c apacity as County Judge; CARLOS LEON

, in his o fficial c apacity as a County

Commissioner; DAVID STOUT

, in his

o fficial c apacity as a County Commissioner;

ILLIANA HOLGUIN

, in her o fficial c apacity

as a County Commissioner; and CARL L.

ROBINSON

, in his o fficial c apacity as a

County Commissioner,

Appellants,

v.

ASSOCIATED GENERAL

CONTRACTORS OF TEXAS, HIGH WAY,

HEAVY

, UTILITIES & INDUSTRIAL

BRANCH ; and A BROTHERS MILLING,

LLC

,

Appellee s

. §

§

§

§

§

§

§

§

§

§

§ No. 08-22-00029- CV

Appeal from the

County Court at Law No. 7

of El Paso County, Texas

(TC# 2021DCV1132 )

O P I N I O N

This interlocutory appeal is brought by elected officials comprising the El Paso County

Commissioners Court, to include County Judge Ric ardo A. Samaniego, and Commissioners,

Carlos Leon, David Stout, Illiana Holguin, and Carl L. Robinson (collectively, Appellants or the

El Paso County Commissioners Court). Appellants challeng e the trial court’s denial of their plea

to the jurisdiction. Appellees

, Associated General Contractors of Texas, Highway, Heavy, Utilities2 & Industrial Branch and A Brothers Milling

, LLC, ( collectively

, AGC )

, filed suit alleg ing

Appellants acted ultra vir e s in setting the prevailing wage rate s for heavy

- high way construction

projects awarded in El Paso County

. See T EX

. G OV ’ T C ODE A NN

. § 2258.022(a)

. In a single issue,

Appellants argue the trial court erred in denying their plea to the jurisdiction

, claiming that

governmental immunity shields each of them

, respectively

, from AGC ’ s claim

, thus depriving the

trial court of subject matter jurisdiction. We affirm.

I. B ACKGROUND

When reviewing a trial court ’ s ruling on a plea to the jurisdiction

, we are required to

construe the pleadings liberally and in favor of the plaintiff

. See City of Monahans v. Southwestern

Bell Telephone Company

, 656 S.W.3d 738 743 (Tex. App.

— El Paso 2022, no pet. )

. As a result

, in

providing context to this appeal, th e following factual background is taken directly from AGC ’ s

o riginal p etition

. We begin by setting forth the statutory scheme implicated by AGC ’ s allegations.

U nder Texas law, a worker employed on a contract for a public work, either by or on behalf

of the state or a political subdivision of the state

, shall be paid “ not less than the general prevailing

rate of per diem wages for work of a similar character in the locality in which the work is

performed [

. ] ” T EX

. G OV ’ T C ODE A NN

. § 2258.021(a)(1)

. This general prevailing rate of per diem

wage s for public work also applies for legal holiday s and overtime work. See id

. § 2258.021( a )(2)

.

Where a contract for public work is awarded by a political subdivision of the state, another

provision of the Government Code sets for th how prevailing wage rates are determined. Section

2258.022(a) provides that a political subdivision “ shall determine th e general prevailing rate of

per diem wages in the locality in which the public work is to be performed for each craft or type

of worker needed to execute the contract [

. ] ” See id

. § 2258.022(a)

. And this determination is made

by either : (1) conducting a survey of the wages received by classes of workers employed on3 projects of a character similar to the contract work, in the political subdivision in which the work

is to be performed ; or (2) by “ using the prevailing wage rate as determined by the United States

Department of Labor (DOL) in accordance with the Davis

- Bacon Act

, 40 U.S.C. § 276a et seq.,

and its subsequent amendments

. ” See id

. § 2258.022(a) (1) and (2)

.

Relying in part on § 2258.022(a)

, AGC alleges th e Commissioners Court of El Paso County

conducted a survey in 2020 to set the prevailing per diem wages for several classifications of

workers doing heavy

- highway construction in El Paso County

. AGC contends that, even though

the El Paso County Commissioners Court claims to have sent a survey to 553 unknown individuals

or companies, several of AGC ’ s member companies that do heavy

- highway construction in

El Paso County reported they never receive d the 2020 Survey

. Essentially, AGC alleges the survey

distribution failed to reach enough relevant heavy

- highway contractors such as t o make the survey

results reliable in calculating the prevailing wage rate for the locality and type of worker.

Moreover, AGC alleges the County ’ s prevailing wage determinations are based on

improper data

. Specifically

, AGC contends the prevailing wage rate that was set for milling

machine operators initially included wage data that a contractor paid to a Pennsylvania worker

based on Pennsylvania ’ s prevailing wage rate as set for a higher

- paid class of workers

. While the

El Paso County Commissioners Court ultimately eliminated th e Pennsylvania data from its

determination of prevailing wage s

, AGC further contends the County was unable to confirm or

deny whether other improper data had been similarly included in its wage calculations for other

workers.

According to AGC

, t he El Paso County Commissioners Court also improperly used the

average per diem wage rate instead of the prevailing per diem wage rate

, as required by Texas

law

. It claims the El Paso County Commissioners Court improperly calculated the prevailing rate4 for fringe benefit s by averaging all the responses even though most contractors do not provide any

fringe benefits as a wage rate

. As an example, AGC attached the El Paso County Commissioners

Court ’ s calculation of the prevailing per diem wage rate for heavy

- highway electricians to its

response to the plea to the jurisdiction

. The calculation shows that out of the eleven contractors

that responded with data, only three paid benefits to heavy

- highway electricians. Despite the data

showing that most contractors pay no fringe benefits to this category of workers, t he El Paso

County Commissioners Court took the total of fringe benefits paid by the three responding

contractors ( $21.69 ) and divided it by all eleven responding contractors to set a prevailing fringe

benefit wage of $1.97 for heavy

- highway electricians.

Based on these allegations, AGC filed suit seeking declaratory and injunctive relief

, as well

as attorneys fees

. First, AGC requested declaration s that “ the 2020 Prevailing Wage Rates, as they

pertain to heavy/highway, are void, invalid, illegal, and unenforceable, and t hat the County acted

ultra vires ” when it adopted the wage rate

. AGC asserted the 2020 prevailing wage rates for

heavy/highway should be stricken and a new survey conducted. Second, it sought injunction s

prohibiting the El Paso County Commissioners Court from enforcing the 2020 prevailing wage

rates for this class of workers and prohibiting it from entering into an agreement with other public

entities allowing them to use the 2020 prevailing wage rates for their public work s contracts.

Each of t he members of the El Paso County Commissioner s Court filed a combined

pleading including their respective assertion of a general denial

, and assertion of affirmative

defenses

, and a plea to the jurisdiction

. Without attaching evidence, the members argu e they are

individually immune from AGC ’ s lawsuit as members of a government al entity

. After holding a

hearing, the trial court summarily denied the plea to the jurisdiction

. T his interlocutory appeal

followed

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014( a)(8)

.5 II. STANDARD O F REVIEW

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a suit for lack of subject matter

jurisdiction. Harris C n ty. v. Sykes

, 136 S.W.3d 635, 638 (Tex. 2004)

. Because immunity from suit

defeats a trial court ’ s subject matter jurisdiction, such immunity is properly asserted in a plea to

the jurisdiction. Texas Dep ’ t of Parks & Wildlife v. Miranda

, 133 S.W.3d 217, 225

- 26 (Tex. 2004)

.

A plea challenging the trial court ’ s jurisdiction raises a question of law reviewed de novo. State v.

Holland

, 221 S.W.3d 639, 642 (Tex. 2007)

.

A plea to the jurisdiction can challenge either the pleadings or the existence of

jurisdictional facts. See Miranda

, 133 S.W.3d at 226

- 27

. When, as here, a plea to the jurisdiction

challenges a plaintiff ’ s pleadings, the determination turns on whether the pleader has alleged

sufficient facts to demonstrate the court ’ s subject

- matter jurisdiction. Id. We construe the

pleadings liberally in favor of the plaintiff and look to the pleader ’ s intent. City of Waco v. Kirwan

,

298 S.W.3d 618, 621 (Tex. 2009)

. If the pleadings do not contain sufficient facts to affirmatively

demonstrate the trial court ’ s jurisdiction but do not affirmatively demonstrate incurable defects in

jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the

opportunity to amend. Miranda

, 133 S.W.3d at 226

- 27

. If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiff an opportunity to amend. Id. at 227

.

III. DISCUSSION

In a single issue, Appellants argue the trial court erred in denying their plea to the

jurisdiction for want of jurisdiction

. Respectively, each of the elected officials contend that

governmental immunity shields them from suit unless immunity has been expressly waived by the6 legislature. They claim that neither AGC ’ s claim under the Uniform Declaratory Judgments Act

nor its ultra vires claim against each of them provide an express waiver of immunity

.

A. Controlling l aw

“ In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit. ” Miranda

, 133 S.W.3d at 224

. And political subdivision s of the state

— such as counties

—

are also entitled to this immunity protection

. City of El Paso v. Heinrich

, 284 S.W.3d 366, 368

(Tex. 2009)

. A lawsuit

, however, against a state official in his or her official capacity can proceed

in the absence of a waiver of immunity

, if the official ’ s actions are ultra vires

. Hall v. McRaven

,

508 S.W.3d 232, 238 (Tex. 2017)

. “ An ultra vires action requires a plaintiff to ‘ allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a purely

ministerial act. ’ ” Id

. ( quoting Heinrich

, 284 S.W.3d at 372 ). While these actions are not brought

against the state or its subd i visions because the state ’ s immunity is retained

, the individual state

actors may be sued in their official capacity. He i nrich

, 284 S.W.3d at 37 2

. The Supreme Court of

Texas has held that a government official with absolute discretion to act

— that is, “ free decision

making without any constraints ”

— cannot act without legal authority, and, therefore, is not subject

to ultra vires suits. See Houston Belt & Terminal Railway Co. v. City of Houston

, 487 S.W.3d 154,

161 (Tex. 2016)

. But a “ government officer with some discretion to interpret and apply a law may

nonetheless act ‘ without legal authority, ’ and thus ultra vires

, if he exceeds the bounds of his

granted authority or if his acts conflict with the law itself. ” Hall

, 508 S.W.3d at 238 ( quoting

H

ouston Belt

, 487 S.W.3d at 158 )

. An ultra vires suit based on actions taken without legal

authorit y, therefore, has two components: “ (1) authority giving the official some (but not absolute)7 discretion to act and (2) conduct outside of that authority. ” Id. ( citing Houston Belt

, 487 S.W.3d

at 158 )

.

B. Analysis

Here, as is generally the case, the limits of Appellants ’ authority are found in the authority

granting law itself

, that is, by the language of § 2258.022(a) of the Government Code

. Houston

Belt

, 487 S.W.3d at 165 (stating that the bounds of a government official ’ s discretion are generally

found in the authority granting law) ; see also T EX

. G OV ’ T C ODE A NN

. § 2258.022(a)

. Appellants

argue that while § 2258.022 (a) requires that they either conduct a survey or adopt the U.S. DOL ’ s

prevailing wage rates

, the legislature otherwise left it to the ir discretion on how the survey of wages

could be conducted. Asserting they exercised their discretion in conducting the 2020 survey

,

Appellants contend they are each immune from AGC ’ s suit challenging the methodology of the

survey and its results.

AGC counters that § 2258.022 (a) only gives Appellants some discretion on how to conduct

the survey

, not unlimited discretion

. AGC alleged in its live pleading that Appellants exceeded

their discretion by conducting a survey that did not in fact determine the “ prevailing rate ” paid for

similar work in the area as prescribed by the statutory terms

. Specifically, AGC alleged two ways

in which Appellants exceeded their discretion in conducting a prevailing wage rate survey

. First,

it alleged Appellants collected incomplete and inaccurate data regarding the prevailing wage rates

for heavy

- highway workers performing work in El Paso County. Second, it claimed Appellants

calculated the “ prevailing ” wage rates of the various workers based on incomplete and improper

data

. Because AGC affirmatively allege s Appellants acted outside of their discretiona r y authority

in conducting a survey

, it argue s it brought a n ultra vires claim squarely within the trial court ’ s

subject

- matter jurisdiction

. Because all pleaded allega t ions are accepted as true at this phase of the8 proceeding, w e agree with AGC that it s petition affirmatively implicated the court ’ s subject matter

jurisdiction.

(1) AGC ’ s allegation s of ultra vires conduct implicates the trial court ’ s subject

matter jurisdiction

By its petition, AGC alleges the El Paso County Commissioners Court failed to comply

with § 2258.022 (a) of the Government Code when it conducted the 2020 Survey and adopted the

2020 Prevailing Wage Rates for heavy

- highway workers. Th is allegation requires us to interpret

and apply the terms of the statute

, which we construe de novo. Jaster v. Comet II Const., Inc.

, 438

S.W.3d 556, 562 (Tex. 2014)

. When interpreting the language of § 2258.022

, o ur primary objecti ve

is to give effect to the legislature ’ s intent. Silguero v. CSL Plasma, Inc.

, 579 S.W.3d 53, 59 (Tex.

2019)

. We presume the legislature used (or omitted) every word of a statute for a purpose. Id

.

Thus, w e give statutory terms their full effect based on the context and read unambiguous statutory

text based on its plain meaning according to the rules of grammar and common usage

. Id. ; see also

Miles v. Texas Central Railroad & Infrastructure, Inc.

, 647 S.W.3d 613, 629 (Tex. 2022)

. In doing

so, “ we must look to the plain language, construing the text in light of the statute as a whole. ”

Silguero

, 579 S.W.3d at 59

. To these ends

, statutory terms bear their common, ordinary meaning,

unless the text provides a different meaning or the common meaning leads to an absurd result. Id

.

Here, the legislature permits the El Paso County Commissioners Court to conduct a survey

of wages received by classes of workers employed on projects of a similar character in El Paso

County to determine “ the general prevailing rate of per diem wages in the locality

. . . for each

craft or type of worker needed to execute the contract and the prevailing rate for legal holiday and

overtime work [.] ” See T EX

. G OV ’ T C ODE A NN

. § 2258.02 2 (a)

. In doing so, however, t he legislature

d oes not permit absolute discretion on how the survey is conducted. As part of the statutory

scheme, a survey of wages complying with § 2258 .022(a) (1)

, must also comply with § 2258.021

.9 First, § 2258.021 includes mandatory language as follows :

A worker employed on a public work by or on behalf of the state or a political

subdivision of the state shall be paid:

(1) not less than the general prevailing rate of per diem wages for work of a

similar character in the locality in which the work is performed; and

(2) not less than the general prevailing rate of per diem wages for legal holiday

and overtime work.

Id

. § 2258.021(a) (emphasis added)

. This provision requires, at minimum

, that wo rkers employed

by or on behalf of a public entity shall receive the general prevailing rate of per diem wage s for

their class of labor in the specific locality. See id.

Second, § 2258.022(a) permits the political subdivision to either conduct a survey or us e

the prevailing wage rate as determined by the U.S. DOL

. See id

. § 2258.022(a)(1) and (2)

.

Nevertheless

, regardless of which method is chosen, “ the public body shall determine the general

prevailing rate of per diem wages in the locality in which the public work is to be performed for

each craft or type of worker needed to execute the contract and the prevailing rate for legal holiday

and overtime work. ” Id

. § 2258.022(a) (emphasis added)

. In other words, §§ 2258.021 and

2258.022 work in tandem imposing the same requirement.

When read together, the legislative scheme tasks the political subdivision with determining

“ the general prevailing rate of per diem wages in the locality in which the public work is to be

performed for each craft or type of worker needed to execute the contra ct [

. ] ” See id

. § 2258.02 2 (a)

.

And this prevailing wage rate m ay be determined by “ conducting a survey of the wages received

by classes of workers employed on projects of a character similar to the contract work in the

political subdivision of the state in which the public work is to be performed [

. ] ” Id

.

§ 2258.022(a)(1)

. While the language included in § 2258.022(a)(1) does not provide a specific

method that public bodies must use in conducting the survey

— and, thus, leaves the chosen method10 largely within their discretion

— to fulfil l the legislature ’ s intent, the data designed to be collected

must reflect the “ prevailing rate of per diem wages ” for each class of worker needed to execute the

contract in the specific locality. See id. For example, a public body that sends surveys to plumbers

in New York City to determine the prevailing wage rate of electricians in El Paso County would

not be seeking the appropriate prevailing wage of the jurisdictional locality. In that scenario

, the

public actors would more likely be operating outside of the bounds of their discretion. To this

extent, the type of information collected by the survey is cabined by statutory terms.

As relevant here, we often look to dictionary definitions to shed light on the ordinary

meaning of term s not otherwise defined by the legislature. Silguero

, 579 S.W.3d at 60

. Here,

§ § 2258.021 and 2258.022(a) include terms such as “ prevailing, ” “ per diem, ” and “ wages, ” which

all have common and ordinary meaning s

. First, “ p revailing, ” a n adjective, means “ predominant, ”

“ generally current, ” and “ having superior power or influence. ” Prevailing

, W EBSTER ’ S N EW

U

NIVERSAL U NABRIDGED D ICTIONARY 1535 ( 2nd ed. 2003). Second, “ per diem, ” when used as an

adjective

, as i t appears here, is defined as “ [b]ased on or calculated by the day [

. ] ” Per diem

,

B LACK ’ S L AW D ICTIONARY 1317 (10th ed. 2014)( “ A daily fee; esp., an amount of money that an

employer pays a worker for each day that is worked. ” ). Finally, “ wage, ” a noun, mean s : “ [p]ayment

for labor or services, usu

. based on time worked or quantity produced; specif

., compensation of an

employee based on time worked or output of production. ” Wage

, id

. at 1811. This term is defined

to include “ every form of remuneration payable for a given period to an individual for personal

services, including salaries, commissions, vacation pay, bonuses, and the reasonable value of

board, lodging, payments in kind, tips, and any similar advantage received from the employer. ”

Id

.11 Plainly, AGC alleges the El Paso County Commissioners Court acted outside the authority

provided by § 2258.022 (a) (1) when it conducted its survey

. Specifically, it alleges that Appellants ’

2020 survey was not designed to find the accurate prevailing wages for the classes of workers

necessary for heavy

- highway construction in El Pa so County. It claims that Appellants ’

“ distribution method failed to reach a sufficient number of relevant contractors to make the data

reliable ” and that the 2020 survey of prevailing wage rates had incorporated rates from outside of

El Paso County and for incorrect worker classifications

. Whether AGC can ultimately prove these

allegations is irrelevant at this stage of the litigation

. Here, w e must construe the ple ading liberally

and in AGC ’ s favor. Kirwan

, 298 S.W.3d at 621

. In doing so

, we first determine that Appellants ’

respective discretion under § 2258.022 (a)(1) was somewhat limited by several terms of the statute

.

On review of AGC ’ s pleading, we conclude that AGC affirmatively ple a d ed that Appellants

exceeded th eir discretion by failing to properly establish wages predominating or having superior

power or influence in El Paso County, including for the heavy

- highway class of construction

workers whose wages made up a part of the survey results

. See Hall

, 508 S.W.3d at 238 ; T EX

.

G OV ’ T C ODE A NN

. § 2258.022(a)(1) (providing the survey at issue must reflect the “ prevailing rate

of per diem wages ” for each class of worker needed to execute the contract in the specific locality )

.

Accordingly, we conclude t h at AGC ’ s claim implicates the trial court ’ s subject

- matter jurisdiction.

Thus, we overrule Appellants sole issue. 1

1 At this juncture, we consider only whether AGC ’ s pleading was sufficient to allow it to maintain an ultra vires claim

regarding the determination of prevailing wage rates as required by the statutory scheme. Cnty. of Cameron v. Brown

, 80 S.W.3d 549, 555 (Tex. 2002) ; see also T EX

. G OV ’ T C ODE A NN

. § § 2258.021 and 2258.022(a) (1)

. Because we

conclude that AGC has affirmatively pleaded an ultra vires claim i mplicat ing the trial court ’ s subject

- matter

jurisdiction, we find it un necessary for this jurisdictional inquiry to further consider the remaining allegations made

about fringe benefits

. See Thomas v. Long

, 207 S.W.3d 334, 338

- 39 (Tex. 2006) ( providing that court s determine

subject

- matter jurisdiction for each claim asserted ) ; see also T EX

. R. A PP

. P

. 47.1

.12 (2) Appellants ’ determination of the general prevailing wage is not final

Appellants also argue that § 2258 .022 (e) makes the El Paso County Commissioners Court ’ s

determination of the prevailing wages unreviewable. Indeed, § 2258.022(e) states the “ public

body ’ s determination of the general prevailing rate of per diem wages is final. ” T hough Appellants

do not cite to it, case law interpreting a predecessor statute to § 2258 .022

— which also stated that

the public body ’ s determination of the general prevailing wages “ shall be final ”

— holds that a

public body ’ s determination of the prevailing wages “ is final and not subject to review by the

Courts. ” Texas Highway Commission v. El Paso Bldg. & Const. Trades Council

, 234 S.W.2d 857,

863 (Tex. 1950)

.

The Supreme Court of Texas, however, has clarified that ultra vires acts made by public

officials

— or those acts done without authority

— ” should not be considered acts of the state at all. ”

Hall

, 508 S.W.3d at 238

. The purpose of ultra vires suit s against errant public officials is not an

attempt to exert control over the state, but an attempt to reassert control of the state over one of its

agents and enforce existing policy determinations. Id. ; Houston Belt

, 487 S.W.3d at 164

( “ Allowing such suits, on the other hand, encourages enforcement of existing policy. ” ). Ultra vires

suits, therefore, must be asserted against public officials

, individually, in their official capacity

,

instead of against the public entity itself. Heinrich

, 284 S.W.3d at 373

. Consequently, while

§ 2258 .022(e) makes final the determination of prevailing wages by the El Paso County

Commissioners Court

, nonetheless, if officials of th is public body act ultra vires in setting such

prevailing wages

— as AGC alleged in its petition

— then, in such case

, the wage determination is

no longer recognized as an a ct of the body itself

, nor a final determination

. See Hall

, 508 S.W.3d

at 238

. As a result, because this suit affirmatively alleges abuse s of discretion by the respective13 Appellants

, while acting in their official capacity, the trial court ’ s jurisdiction is implicated and no

error occurred in the denial of the plea to the jurisdiction.

Accordin g ly, w e overrule Appellants ’ sole issue.

IV. CONCLUSION

For the foregoing reasons, we overrule Appellants ’ sole issue on appeal and affirm the trial

court ’ s denial of the plea to the jurisdiction.

G INA M. PALAFOX

, Justice

March 2 7

, 2023

Before Rodriguez

, C.J., Palafox, and Soto

, JJ

.