Reversed and remanded and Opinion filed July 2, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00467-CV

HOUSTON COMMUNITY COLLEGE SYSTEM, Appellant 

V.

HV BTW, LP, Appellee 

On Appeal from the 152nd District Court 

Harris County, Texas 

Trial Court Cause No. 2017-56765 

OPINION 

This is a dispute involving an easement agreement. In three issues, Houston 

Community College (HCC) challenges the trial court’s grant of summary judgment 

in favor of HV BTW, LP (the Partnership) on the grounds that HCC is entitled to 

immunity from suit and the Partnership did not conclusively establish the easement 

agreement was properly executed by HCC. We conclude that HCC did not meet its 

burden to show its entitlement to immunity from suit. We further conclude that the 

trial court erred in rendering summary judgment in favor of the Partnership. 
2

Accordingly, we reverse and remand. 

Background

HCC owns a vacant lot on Lumpkin Road in Houston, Texas (the Property). 

The Partnership owns an adjacent commercial building on Old Katy Road. In 

2013, the Partnership approached HCC about obtaining an easement on the 

Property from Lumpkin Road.

HCC agreed to grant the easement. HCC and the Partnership executed an 

“Easement Acquisition Agreement.” An “Access Easement and Right of Way 

Agreement” was attached as an exhibit to the Easement Acquisition Agreement. 

We refer to these agreements collectively as the Easement Agreement or the 

Agreements. The Agreements were signed on behalf of HCC by its acting 

chancellor Renee Byas and approved as to form by HCC’s general counsel. As set 

forth in the Easement Agreement, as consideration for the easement, The 

Partnership agreed to construct “at its sole cost and expense, certain parking 

facilities on the Property” in accordance with plans approved by HCC and the 

Partnership.

1 After the Agreements were signed, Byas left HCC. The Partnership

alleges that it “spent over $500,000 in engineering and permitting costs and fees, 

demolition costs, grading, and constructing drainage, curbs, and landscaping on the 

HCC Property.” According to the Partnership, the only things left to be done are

paving the road and parking lot and striping the parking lot. 

To do the paving work, the Partnership needed approval from CenterPoint 

Energy, which had a utility easement on the Property. To obtain the approval, 

CenterPoint required a signed “Consent to Encroach” from HCC. The Partnership 

submitted the consent form to HCC. HCC refused to sign it unless the Partnership 

 

1

It is not clear from the record what type of parking facilities were to be constructed, but 

in its live petition, the Partnership refers to the facilities as a parking lot.
3

agreed to a license agreement instead of an easement. 

The Partnership filed a lawsuit against HCC alleging breach of contract and 

seeking a declaration that the Partnership has an easement on the Property. The 

Partnership sought actual damages, specific performance, and attorney’s fees. HCC 

filed a plea to the jurisdiction. The Partnership filed a motion for final summary 

judgment. The trial court rendered final summary judgment and ordered HCC to 

file an executed Access Easement and Right of Way Agreement in the Harris 

County real property records. The trial court also declared that the Partnership has

an easement on the Property and awarded the Partnership attorney’s fees.

Discussion

In three issues, HCC contends the trial court erred in implicitly denying its 

plea to the jurisdiction because, according to HCC, it is immune from suit as to the 

Partnership’s claims. Alternatively, HCC argues the trial court erred in granting 

summary judgment in favor of the Partnership. 

I. No Error in Denying Plea to the Jurisdiction 

HCC argues it is entitled to immunity from suit as a political subdivision for 

which immunity has not been waived. The Partnership contends immunity has 

been waived under chapter 271 of the Local Government Code, which waives 

governmental immunity from suit for a governmental entity that enters into a 

contract for services. See City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 

563 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). 

HCC, as a public community college, is a political subdivision of the state 

and, thus, protected by governmental immunity. See Thielemann v. Blinn Bd. of 

Trustees, No. 01-14-00595-CV, 2015 WL 1247018, at *2 (Tex. App.—Houston 

[1st Dist.] Mar. 17, 2015, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. 
4

Code § 101.001(3)(A)–(B). Governmental immunity includes both immunity from 

liability, which bars enforcement of a judgment against a governmental entity, and 

immunity from suit, which bars suit against the entity altogether. Lubbock Cty. 

Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 

2014); CDM Smith, 470 S.W.3d at 563. A governmental entity that enters into a 

contract necessarily waives immunity from liability, voluntarily binding itself like 

any other party to the terms of agreement, but it does not waive immunity from 

suit. Church & Akin, 442 S.W.3d at 300; CDM Smith, 470 S.W.3d at 563. Unlike 

immunity from liability, immunity from suit deprives the courts of jurisdiction and 

thus completely bars the plaintiff’s claim. Church & Akin, 442 S.W.3d at 300; 

CDM Smith, 470 S.W.3d at 563.

We review a plea challenging the trial court’s jurisdiction de novo. State v. 

Holland, 221 S.W.3d 639, 642 (Tex. 2007). When a plea to the jurisdiction 

challenges the existence of jurisdictional facts, we consider relevant evidence 

submitted by the parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 227 (Tex. 2004); CDM Smith, 470 S.W.3d at 564. The standard of review for 

a jurisdictional plea based on evidence “generally mirrors that of a summary 

judgment under Texas Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 

228. Under this standard, we credit evidence favoring the nonmovant and draw all 

reasonable inferences in the nonmovant’s favor. See id. The defendant must assert 

the absence of subject-matter jurisdiction and present conclusive proof that the trial 

court lacks subject-matter jurisdiction. Id. If the defendant discharges this burden, 

the plaintiff must present evidence sufficient to raise a material issue of fact 

regarding jurisdiction, or the plea will be sustained. Id.

As discussed, under chapter 271 the legislature waived sovereign immunity 

as to local governmental entities that enter into contracts for goods or services for 
5

the purpose of adjudicating claims for breach of contract. Tex. Loc. Gov’t Code 

§§ 271.151(2)(A), 271.152. Section 271.151(2)(A), in relevant part, defines the 

types of contracts subject to the waiver of immunity: “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.” Id. § 271.151(2)(A). HCC argues that chapter 271 does not apply because 

the subject contract (1) does not provide for goods or services to HCC, (2) does not 

include certain essential terms, and (3) was not properly executed under the 

statute.

2 HCC further contends that the Partnership is not entitled to the remedy of 

specific performance under chapter 271 or to a declaration regarding the validity of 

the easement.

A. Contract for Services 

HCC argues that the Easement Agreement is not a contract for services to 

HCC because “an easement is an interest in land” and HCC will not receive a 

direct benefit. The dispositive issue is whether the Partnership, in agreeing to 

construct parking facilities on the Property, agreed to provide a service to HCC. 

Chapter 271 does not define “services,” but the supreme court has 

interpreted the term in this context as “broad enough to encompass a wide array of 

activities.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 

839 (Tex. 2010); CDM Smith, 470 S.W.3d at 566. It generally includes any act 

performed for the benefit of another under some arrangement or agreement 

whereby such act was to have been performed. CDM Smith, 470 S.W.3d at 566. 

The services provided need not be the primary purpose of the agreement. Kirby 

Lake Dev., 320 S.W.3d at 839; CDM Smith, 470 S.W.3d at 566. 

 

2

It is undisputed that the Agreements are not contracts for goods.
6

HCC cites three cases in support of the argument that the Easement 

Agreement does not provide for services to HCC. See Church & Akin, 442 S.W.3d 

at 297; Water Expl. Co. v. Bexar Metro. Water Dist., 345 S.W.3d 492 (Tex. 

App.—San Antonio 2011, no pet.); City of Garden Ridge v. Ray, No. 03-06-00197-

CV, 2007 WL 486395 (Tex. App.—Austin Feb. 15, 2007, no pet.) (mem. op.). 

Each case is distinguishable from the facts of this case. 

In the first case, Church & Akin leased a marina from the Lubbock County 

Water Control and Improvement District. Church & Akin, 442 S.W.3d at 303. The 

lease prohibited Church & Akin from using the premises for any other purpose 

than as a marina without consent. Id. Church & Akin argued that by operating the 

marina it was providing a service to the Water District. Id. at 302. The supreme 

court disagreed because under the lease, the Water District did not obligate Church 

& Akin to operate a marina—it only restricted Church & Akin from using the 

premises for a different purpose without consent. Id. at 303. The court concluded, 

“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 chapter 

271’s waiver of immunity.” Id. 

In the Water Exploration Company case, the San Antonio Court of Appeals 

held that the assignment by Water Exploration Company (WECO) of leases of 

groundwater property rights, wells, pumps, and easements to Bexar Metropolitan 

Water District (BexarMet) was not a contract for services because the nature of the 

property was a lease of real property even though WECO was required (1) to cure 

any failure to meet water quality standards or allow BexarMet to terminate the 

lease for any such failure, and (2) to maintain a minimum amount of water 

production with an option to cure any such failure. 345 S.W.3d at 496–98. The 

court construed these provisions as options to cure, not as services. Id. at 501. 
7

Because BexarMet had leased a real estate interest from WECO, BexarMet was 

responsible for operating, maintaining, repairing, and replacing existing facilities 

and constructing new ones and WECO’s options to cure were contingent on the 

leased property being unusable, the court held that the leases did not trigger 

governmental immunity under chapter 271. Id. 

The Garden Ridge case involved a drainage culvert maintained by the City 

of Garden Ridge pursuant to an easement agreement granted in favor of the city. 

2007 WL 486395, at *1. Ray sued the city for flooding related to the city’s 

construction and maintenance of the culvert. Id. No statutory waiver applied to 

Ray’s breach of contract claim. Id. at *1 n.1. 

The facts of this case are more akin to a case cited by the Partnership, Clear 

Lake City Water Authority v. Friendswood Development Co., 256 S.W.3d 735 

(Tex. App.—Houston [14th Dist.] 2008, pet. dism’d), disapproved on other 

grounds by Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012). In that case, 

Friendswood Development agreed to arrange for the construction of water 

distribution lines, sanitary sewer lines, and drainage facilities to provide service to 

houses Friendswood Development proposed to build. Id. at 738–39. Clear Lake 

City Water Authority agreed to purchase or lease the completed facilities. Id. at 

739. We concluded that Friendswood Development’s agreement to construct the 

facilities and to build streets, roads, and bridges constituted a provision of services 

to the Water Authority because it was “authorized to provide, among other things, 

water supply, waste disposal, and drainage facilities to the land within its 

boundaries.” Id. at 751. 

Under the Easement Agreement, the Partnership was required to construct 

parking facilities on HCC’s property “[a]s consideration for the Easement to be 

granted.” No other consideration was required. Courts have frequently held that the 
8

construction of facilities to benefit a governmental entity is a service for purposes 

of chapter 271. The supreme court held that developers provided services to a 

city’s water authority when the developers agreed to construct, develop, and bear 

all risk of loss or damage to sewer facilities because the developers were required 

to lease the sewer facilities to the water authority. Kirby Lake Development, 320 

S.W.3d at 839. As mentioned, we held that an agreement to construct facilities and 

to build streets, roads, and bridges constituted a provision of services to a water 

authority. Friendswood Development Co., 256 S.W.3d at 751. Sister courts have 

reached similar conclusions. For example, a development agreement required a 

real estate developer to provide services to a city by constructing a road, designing 

and constructing a turn lane, and working with the Texas Department of 

Transportation concerning location, alignment, design and construction of the lane. 

Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 473 (Tex. 

App.—Fort Worth 2012, pet. denied). 

HCC also argues “easement agreements do not . . . waive immunity under 

[s]ection 271.151.” But none of the cases relied on by HCC involved the 

construction of facilities for the local governmental entity, and all of the cases 

involved easements granted to—not by—the local governmental entity. See Valley 

Mun. Util. Dist. No. 2 v. Rancho Viejo, Inc., No. 13-07-545-CV, 2008 WL 384320, 

at *1, 4 (Tex. App.—Corpus Christi Feb. 14, 2008, no pet.) (mem. op.) (involving 

easement granted to local governmental agency and no provision of goods or 

services); City of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930-

CV, 2007 WL 752197, at *1 (Tex. App.—San Antonio Mar. 14, 2007, pet. denied) 

(mem. op.) (involving sewer line easement granted to city); Garden Ridge, 2007 

WL 486395 at *1 (involving drainage culvert maintained by city pursuant to 

easement granted to city). In this case, HCC purportedly granted the easement to 
9

the Partnership in exchange for the construction of parking facilities. 

We conclude that the Partnership’s construction of parking facilities as 

consideration for the grant of an easement is a service to HCC. Accordingly, the 

Easement Agreement is an agreement for services within the purview of chapter 

271. 

B. Essential Terms Included 

In its opening brief, HCC argues that the Easement Agreement lacks an 

essential term—a description of the property to be transferred—because it 

purportedly does not include a legal description of the easement. In its reply, HCC 

also argues that the Easement Agreement lacks essential terms as to time of 

performance, price, and the work to be done. 

Chapter 271 does not define “essential terms.” City of Houston v. Williams, 

353 S.W.3d 128, 138 (Tex. 2011). But the supreme court has characterized 

essential terms for purposes of chapter 271 to include, among other things, the 

names of the parties, the price to be paid, the service to be rendered, the property at 

issue, and the time of performance. Id. at 138-39; Kirby Lake Development, 320 

S.W.3d at 838. The essential terms must outline the basic obligations of the parties. 

Kirby Lake Development, 320 S.W.3d at 838; CDM Smith, 470 S.W.3d at 565. 

Courts consider each contract separately on a case-by-case basis to determine its 

essential terms. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 

221 (Tex. 1992); Clear Creek Indep. Sch. Dist. v. Cotton Commercial USA, Inc., 

529 S.W.3d 569, 580 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

We first look to the agreement’s language to identify its essential terms. 

Cotton Commercial USA, 529 S.W.3d at 580. The Easement Agreement states the 

names of the parties. As to price, HCC agreed to grant an easement in exchange for 
10

the construction of parking facilities. The construction of parking facilities, as 

discussed above, is the service to be rendered. Moreover, as to the description of 

the property, the Access Easement and Right of Way Agreement, which is attached 

as an exhibit to the Easement Acquisition Agreement, refers to the “Easement 

Area” as “a non-exclusive, perpetual easement and right-of-way over, upon, and 

across that certain strip of land in Harris County, Texas, more particularly 

described on Exhibit ‘A’ attached hereto.” Exhibit A is a legal description of the 

Easement Area.3

We next examine whether the services described in the Easement Agreement 

are sufficiently definite to make the agreement an enforceable contract. See id. To 

be enforceable, a contract’s essential terms must be sufficiently definite to confirm 

that both parties intended to be contractually bound. Id. In that connection, the 

terms must also be sufficiently definite to enable a court to understand the parties’ 

obligations and give an appropriate remedy if they are breached. Id. We rely on 

guiding principles of contract interpretation to determine whether the services 

described in the contract are sufficiently definite. Id. at 581 (citing Fischer v. 

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

Several principles of contract interpretation guide our analysis: (1) partial 

performance may remove uncertainty and establish that a contract enforceable as a 

bargain has been formed, even when some terms are missing or left to be agreed 

upon; (2) because the law disfavors forfeitures, we conclude terms are sufficiently 

definite whenever the language is reasonably susceptible to that interpretation; and 

 

3 Even if we were to interpret the Agreements as separate agreements, we have held that a 

series of documents, when read together, can establish an agreement’s essential terms and bring 

an agreement within the purview of chapter 271. See La Marque Indep. Sch. Dist. v. Healthy Res. 

Enter., Inc., 357 S.W.3d 761, 764-65 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The 

Easement Agreement, including this legal description, was attached to the trial court’s final 

judgment.
11

(3) when construing an agreement to avoid forfeiture, we may imply terms that 

reasonably can be implied. See id. 

The Easement Agreement describes in general terms the parties’ basic 

obligations: construction of parking facilities in exchange for the grant of an 

easement on the Property. When parties have “already rendered some substantial 

performance or have taken other material action in reliance upon their existing 

expressions of agreement,” courts “will be more ready to find that the apparently 

incomplete agreement was in fact complete.” Fischer, 479 S.W.3d at 242; Cotton 

Commercial USA, 529 S.W.3d at 583. As to the parties’ performance, the 

Partnership undisputedly has completed grading and constructing drainage, curbs, 

and landscaping on the Property. According to the Partnership, the only thing left 

to do is pave the road and parking lot and stripe the parking lot. HCC did not 

intervene while this work was being performed. Thus, the parties’ performance 

supports an inference that the parties had a meeting of the minds as to their 

respective obligations. See Cotton Commercial USA, 529 S.W.3d at 582. The 

parties’ actions here raise a fact question regarding whether they intended to 

conclude a binding agreement. Thus, we will “endeavor, if possible, to attach a 

sufficiently definite meaning to the bargain.” Fischer, 479 S.W.3d at 239; Cotton 

Commercial USA, 529 S.W.3d at 583. 

If HCC were correct in its assertion that the Easement Agreement lacks 

essential terms, then the agreement would be unenforceable, which would result in 

the disfavored outcome of complete forfeiture. See Cotton Commercial USA, 529 

S.W.3d at 583. Despite the Easement Agreement’s lack of detailed specificity 

about how the services would be rendered and when, the parties’ actions—the 

Partnership’s substantial performance and HCC’s acquiescence—raise a fact 

question regarding whether the Easement Agreement states every essential term 
12

and is therefore enforceable. See id. at 584–85 (noting school district’s failure to 

challenge enforceability of contract until after work was completed indicated that 

contract’s essential terms were sufficiently definite). The Easement Agreement 

outlines the parties, the subject matter, and the basic obligations, including a 

sufficiently definite description of the services to be provided, so that a court could 

understand the parties’ obligations. See id. at 585. Given the jurisdictional 

evidence presented by the parties, we conclude that whether the Easement 

Agreement states each essential term required under chapter 271 is an issue for the 

factfinder on remand. 

C. Properly Executed 

HCC contends that the Easement Agreement was not properly executed 

under chapter 271 because it was required to be, but was not, approved by HCC’s 

board of trustees. The Partnership argues that (1) the focus under chapter 271 is not 

on whether a contract complies with all the policies and procedures for the 

execution of a contract but instead is on whether the governmental agency had the 

authority to execute a contract; and (2) Byas, as chancellor, had the authority to 

sign the Agreements. 

Under chapter 271, a local governmental entity must be “authorized by 

statute or the constitution to enter into a contract.” Tex. Loc. Gov’t Code 

§ 271.152; TXU Energy Retail Co. L.L.C. v. Fort Bend Indep. Sch. Dist., 472 

S.W.3d 462, 465 (Tex. App.—Dallas 2015, no pet.). As we have noted, chapter 

271 “does not require that the contract at issue be properly executed by the 

governmental entity; rather, the requirements of the statute are satisfied if the 

contract was properly executed on behalf of the entity.” City of Houston v. Clear 

Channel Outdoor, Inc., 233 S.W.3d 441, 446 (Tex. App.—Houston [14th Dist.] 

2007, no pet.) (emphasis in original). Moreover, whether a contract is binding is a 
13

question that goes to the merits of the case, not a question of whether the contract 

was properly executed.4Id.; see also El Paso Educ. Initiative, Inc. v. Amex Props., 

LLC, 564 S.W.3d 228, 238 (Tex. App.—El Paso 2018, pet. filed). With these 

principles in mind, we turn to the facts of this case. 

HCC concedes that it is authorized by statute to enter into contracts through 

its governing board. See Tex. Educ. Code § 130.084 (setting forth “powers and 

duties” of “[t]he governing board of a junior college district”). HCC board policy 

dictates that “[a]n individual member may act on behalf of the Board with the 

official authorization of the Board.” Also, under board policy in effect at the time 

Byas signed the Agreements, she had authority delegated by the board to award 

certain contracts without board approval. “Purchases or sales of real property,” 

however, required approval of the board. 

HCC relies on an opinion from the Dallas Court of Appeals for the 

proposition that, “[a]bsent [b]oard approval, both as a matter of law and HCC 

[p]olicy, there is no contract.” See LTTS Charter Sch., Inc. v. C2 Const., Inc., 358 

S.W.3d 725 (Tex. App.—Dallas 2011, pet. denied). In that case, a contractor had 

been retained to construct school facilities for LTTS Charter School. Id. at 730. No 

written contract was signed, and the school board did not vote to approve an 

agreement with the contractor. Id. at 742–44. The court held under those 

circumstances that a contract for services had not been properly executed under 

chapter 271. Id. at 744. 

Here, unlike in LTTS, the Agreements were signed by HCC’s representative. 

 

4 HCC argues that Byas “could not legally make a binding, enforceable contract” and 

“HV[’s] attempt to bind HCC to the Easement Agreement circumvents the policies behind the 

Texas Open Meetings Act and Texas Education Code.” See Tex. Gov’t Code §§ 551.001–

551.146 (Open Meetings Act). But these arguments as articulated are relevant to whether the 

Easement Agreement is binding, not whether it was properly executed. Thus, we do not reach 

these issues as part of our jurisdictional inquiry. See Clear Channel Outdoor, 233 S.W.3d at 446.
14

So, at issue is whether Byas, as HCC’s representative, had the authority to sign the 

Agreements on behalf of HCC. See Clear Channel Outdoor, 233 S.W.3d at 446 

(holding purchase agreement was properly executed after having been signed on 

behalf of the City of Houston); Amex Props., 564 S.W.3d at 243 (holding fact 

question existed as to whether a lease was properly executed when some evidence 

showed the lease had been executed “on behalf of” charter school operator). HCC 

argues that Byas did not have the authority to sign the Agreements because (1) the 

board policy in place at the time did not authorize the chancellor execute the 

Easement Agreement and the Easement Agreement is not a contract for HCC to 

purchase anything; (2) HCC approved a policy after the fact allowing the 

chancellor to execute easement agreements; and (3) Byas did not have the 

authority to grant an easement because it is an interest in land.5

 We address each 

argument in turn. 

Board Policy in Effect When Easement Agreement Signed. The 

Agreements were signed in 2013. The Partnership argues that board policy allowed 

the chancellor “to initiate and execute contracts valued at up to $100,000.” 

However, that policy was issued in 2015. Prior to that, a policy had been issued in 

2014 that increased the chancellor’s ability to “award [a]ny contract or purchase 

order” up to $75,000. There is no evidence in the record of the contract dollar limit 

before that date, but the 2014 policy is some evidence that when she executed the 

Agreements, Byas had the ability to award contracts for some dollar amount less 

than $75,000 because the 2014 policy merely increased the dollar amount for a 

 

5 HCC argues that the Partnership had the burden to show the Easement Agreement was 

properly executed. To the contrary, HCC was required to assert the absence of subject-matter 

jurisdiction and present conclusive proof that the trial court lacks subject-matter jurisdiction, i.e., 

that the Easement Agreement was not properly executed. Miranda, 133 S.W.3d at 228. The 

Partnership was required to present evidence sufficient to raise a material issue of fact regarding 

jurisdiction only if HCC discharged its burden. See id.
15

policy previously in place. There is no evidence in the record as to the value of the 

parking facilities or of the easement itself.6

As to HCC’s argument that Byas lacked authority to execute the Easement 

Agreement because it is not a contract to purchase anything, first, the 2014 policy 

was not limited to purchases—it applied to “[a]ny contract or purchase order.” 

Second, to say that the Easement Agreement is not a contract for HCC to purchase 

anything is inaccurate. As discussed, HCC was to receive parking facilities in 

exchange for the grant of the easement. Accordingly, HCC was purchasing parking 

facilities. 

We conclude HCC has not shown on this record that the Easement 

Agreement required board approval because there is some evidence that the board 

policy in place at the time had delegated Byas the authority to execute the 

Easement Agreement. 

Amended Board Policy. HCC asserts that the amended board policy 

instituted in 2017 allowing the chancellor to execute easement agreements is 

evidence that the chancellor did not have the authority to grant easements before 

2017. The Partnership argues to the contrary that the amended policy “simply 

articulated the fact that the [c]hancellor had the authority to negotiate and sign 

easements, which all past [c]hancellors . . . had regularly done in the past” based 

on comments at the board meeting approving the amendment. At the meeting, the 

then current chancellor stated that “there is normally no payment on the easements 

and [granting easements] would not exceed [my] signature authority limit.” He 

 

6 The Partnership argues that the chancellor could grant any easement because such a 

grant does not involve HCC’s expenditure of funds. It is not clear on this record whether HCC’s 

policy was limited to HCC’s expenditure of funds or whether the policy applied to contracts 

valued at a certain dollar amount. The 2015 policy expressly refers to contracts “valued at up to 

$100,000.”
16

further remarked that easements do “not convey real property [or] involve 

expenditure of funds outside [my] approval limits.” He stated that he brought the 

issue to the board based on general counsel’s recommendation, “as the easements 

for existing properties might not be included in the blanket execution of all 

documents.” We conclude based on this evidence that there is also a fact question 

as to whether HCC chancellors had the authority to grant easements prior to the 

2017 board policy amendment. 

Interest in Land. Lastly, HCC argues Byas did not have the authority to 

transfer an interest in land to the Partnership. Although an easement is an interest 

in land, board policy only required board approval of, in relevant part, “sales of 

real property.” An easement is defined as “[a]n interest in land owned by another 

person, consisting in the right to use or control the land, or an area above or below 

it, for a specific limited purpose.” Easement, Black’s Law Dictionary (7th ed. 

1999). An easement “does not give the holder the right to possess, take from, 

improve, or sell the land.” Id. Accordingly, the grant of an easement is not a sale of 

real property. See Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (“An 

easement does not divest a property owner of title, but allows another to use the 

property for [a specific] purpose.”); Saturn v. Barnett, No. A-16-CA-505-LY, 2016 

WL 7392240, at *1 n.2 (W.D. Tex. Dec. 20, 2016) (noting easement gives right to 

cross property but gives “no other property rights”), report and recommendation 

adopted, No. 1:16-CV-00505-LY, 2017 WL 9850919 (W.D. Tex. Jan. 12, 2017). 

Conclusion. The record here undisputedly includes two written contracts 

signed by HCC’s representative. See Amex Props., 564 S.W.3d at 239. Viewed in 

the light most favorable to the Partnership, as we are required to do, the record 

shows that (1) when Byas was chancellor, she had authority delegated by the board 

to award contracts up to a certain dollar amount; (2) there is no evidence of the 
17

dollar value of the Easement Agreement; (3) before the board amendment was 

passed expressly giving chancellors authority to grant easements, chancellors had 

granted easements because “there is normally no payment on the easements and 

[granting easements] would not exceed [the] signature authority limit”; and 

(4) granting an easement is not the sale of real property, which would trigger the 

requirement for board approval. Given the jurisdictional evidence presented by the 

parties, we conclude that the resolution of whether the Easement Agreement was 

properly executed on behalf of HCC is an issue for the factfinder on remand. See 

id. at 243. 

D. Specific Performance Available 

HCC argues that the Partnership is not entitled to the remedy of specific 

performance under chapter 271.7 See Tex. Loc. Gov’t Code § 271.153 (Limitations 

on Adjudication Awards). The supreme court recently held that a prior version of 

the statute did not foreclose a lawsuit for specific performance against a local 

governmental entity when immunity was waived for breach of contract. Hays St. 

Bridge Restoration Group v. City of San Antonio, 570 S.W.3d 697, 708 (Tex. 

2019). HCC argues the current version of the statute forecloses such a lawsuit.

The version of the statute at issue in Hays applied to only one type of 

contract: “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.” Act of June 17, 2005, 79th

Leg., R.S., ch. 604 § 1, 2005 Tex. Gen. Laws 1548, 1548 (amended 2013) (current 

version at Tex. Loc. Gov’t Code § 271.151(2)(A)). Under that version of the 

 

7

 HCC incorrectly asserts that specific performance is the sole remedy the Partnership

seeks. The Partnership also seeks actual damages for its costs incurred in constructing the 

parking facilities.
18

statute, “[t]he total amount of money awarded in an adjudication brought against a 

local governmental entity for breach of contract subject to [chapter 271 was] 

limited to” only certain types of damages. Id. at 1548–49 (current version at Tex. 

Loc. Gov’t Code § 271.153). The supreme court held that since the statute limited 

damages, not remedies, it did not foreclose the plaintiff’s lawsuit for specific 

performance. Hays, 570 S.W.3d at 707–08. Therefore, chapter 271 waived 

immunity from suit for specific performance. Id. 

In 2013, the legislature added another type of contract to chapter 271: “a 

written contract, including a right of first refusal, regarding the sale or delivery of 

not less than 1,000 acre-feet of reclaimed water by a local governmental entity 

intended for industrial use.” Tex. Loc. Gov’t Code § 271.151(2)(B). The 

legislature also expressly stated that “[a]ctual damages, specific performance, or 

injunctive relief may be granted in an adjudication brought against a local 

governmental entity for breach of [such] a contract.” Id. § 271.153(c). 

HCC argues that the 2013 amendment indicates the legislature intended to 

waive immunity for specific performance only as to cases involving certain 

contracts for the sale or delivery of reclaimed water. The supreme court in Hays

expressly declined to reach this issue. 570 S.W.3d at 708 n.65. The Partnership 

argues to the contrary that because the legislature did not amend any provisions of 

chapter 271 relating to service contracts but instead added a new category of 

contracts subject to waiver of immunity, the legislature did not intend to limit the 

remedies available under chapter 271 relating to service contracts. 

The court in Hays noted that former section 271.153(a) “limits ‘[t]he total 

amount of money awarded’ to enumerated categories of damages,” while former 

subsection (b) “clarifies that ‘[d]amages awarded’ against a local governmental 

entity ‘may not include’ certain additional categories.” Id. at 707–08. The court 
19

concluded that to read former section 271.153 “as impliedly prohibiting every suit 

seeking an equitable remedy against a local governmental entity would too greatly 

restrict the general waiver of immunity in section 271.152.” Id. at 708. After the 

2013 amendment, none of the relevant language in chapter 271 changed. 

We ascertain the legislature’s intent “from what it enacted.” See Wasson 

Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016). The 2013 

amendment added a new category of contracts for which immunity is waived. Tex. 

Loc. Gov’t Code § 271.151(2)(B). The monetary damages available for breach of 

this new category of contracts includes “actual damages,” which is not the same as 

the types of damages that are available for breach of service contracts. Id. 

§ 271.153(a) (limiting the “total amount of money awarded” for breach of service 

contracts to “the balance due and owed by the local governmental entity under the 

contract,” “the amount owed for change orders or additional work the contractor is 

directed to perform,” “reasonable and necessary attorney’s fees,” and “interest”), 

(c) (including “actual damages” for breach of relevant contracts for the sale or 

delivery of reclaimed water). These distinctions between available damages lead us 

to conclude that the legislature intended for the two types of contracts to be treated 

differently. 

The legislature expressly excluded certain types of damages for breach of 

either type of contract. Id. § 271.153(b) (“Damages . . . may not include [certain] 

consequential damages[,] exemplary damages[,] or . . . damages for unabsorbed 

home office overhead.”). The legislature did not similarly limit the types of 

equitable remedies available for breach of service contracts. If the legislature had 

intended to eliminate specific performance as an available remedy for service 

contracts, it could have done so. See Wasson Interests, 489 S.W.3d at 438 (“[T]his 

Court presumes the Legislature deliberately and purposefully selects words and 
20

phrases it enacts, as well as deliberately and purposefully omits words and phrases 

it does not enact.”). Because the legislature did not expressly exclude specific 

performance as an available remedy for service contracts, we conclude that chapter 

271 did not foreclose the Partnership’s lawsuit for specific performance under the 

current version of the statute. 

E. Declaratory Judgment Proper 

HCC further argues that the Partnership cannot bring a claim seeking a 

declaration to circumvent HCC’s entitlement to immunity. Under the Uniform 

Declaratory Judgments Act (UDJA), “[a] person interested under a deed . . . may 

have determined any question of construction or validity arising under the 

instrument . . . and obtain a declaration of rights, status, or other legal relations 

thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a). The supreme court has 

acknowledged that a party can bring a claim under the UDJA to determine the 

rights of parties to a contract subject to chapter 271. See Ben Bolt-Palito Blanco 

Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. 

Fund, 212 S.W.3d 320, 323, 328 (Tex. 2006) (holding immunity from suit was 

waived under chapter 271 as to lawsuit for declaratory judgment seeking 

determination of whether loss was covered under insurance policy). HCC argues, 

however, that in seeking a declaration as to the validity of the easement, the 

Partnership is improperly seeking to impose liability for breach of contract. We do 

not agree with this characterization: in asking the trial court to determine whether 

the Partnership has an easement, which HCC disputes, the Partnership is seeking 

an adjudication of its property rights.8

 

 

8 The Partnership asked the trial court for the following declaration: “Plaintiff and its 

customers, lessees, sublessees, licensees, agents, successor[s] and assigns have a valid, nonexclusive easement over and across the HCC Property for vehicular and pedestrian [access] from 

Lumpkin Road to the HVBTW Property and for parking upon the HCC Property.”
21

It is settled law that the UDJA may be used to determine the validity of an 

easement. See, e.g., Shelton v. Kalbow, 489 S.W.3d 32, 56–57 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (holding it was proper for trial court to 

render declaratory judgment that deed granted easement for public use of road); 

Ray, 2007 WL 486395, at *3 (“While we agree that the UDJA may be used to 

determine the validity of an easement, . . . [t]here is no dispute that the easement in 

this case is valid.”); Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex. App.—

Austin 2005, pet. denied) (“[W]e note that a large number of easement cases have 

been decided under the UDJA.” (citing Tex. Civ. Prac. & Rem. Code §§ 37.002(b), 

37.004)). HCC signed the Easement Agreement and now disputes its validity. 

Accordingly, the Partnership was entitled to seek a declaration regarding whether it 

has an easement on the Property. See Shelton, 489 S.W.3d at 56–57. 

F. Conclusion: No Error in Denying Plea to Jurisdiction 

We conclude that the trial court did not err in implicitly denying HCC’s plea 

to the jurisdiction because (1) the Easement Agreement is a services contract; 

(2) there are fact questions regarding whether the Easement Agreement includes 

the essential terms of the parties’ agreement and whether it was properly executed 

on behalf of HCC; (3) specific performance is an available remedy for breach of a 

services contract under chapter 271; and (4) the Partnership is entitled to a 

declaratory judgment under the UDJA and chapter 271 as to the validity of the 

Easement Agreement. We overrule HCC’s issues challenging the trial court’s 

denial of its plea to the jurisdiction. We turn to HCC’s challenge to the trial court’s 

summary judgment.

II. Error in Granting Summary Judgment 

HCC argues that the trial court erred in granting final summary judgment in 

favor of the Partnership because (1) as a matter of law, the Easement Agreement is 
22

not an agreement for the sale of goods or services to HCC, and (2) the Partnership 

did not establish that the chancellor and general counsel of HCC had authority to 

grant an easement on behalf of HCC.9 We have already concluded that the 

Easement Agreement is an agreement for the sale of services to HCC, but we agree 

that the Partnership did not conclusively establish that Byas, as chancellor, had the 

authority to execute the Easement Agreement. 

We review a trial court’s grant of summary judgment de novo. St. Anthony’s 

Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separate Prop. Tr., 567 

S.W.3d 792, 796 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). We 

consider all the evidence in the light most favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if a reasonable factfinder could and 

disregarding contrary evidence unless a reasonable factfinder could not. See Mack 

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 

A party filing a traditional motion for summary judgment has the initial 

burden of showing that there is no genuine issue of material fact and it is entitled to 

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a plaintiff 

moves for summary judgment on its cause of action, it must conclusively prove all 

essential elements of its claim as a matter of law. Leonard v. Knight, 551 S.W.3d 

905, 909 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Evidence is conclusive 

only if reasonable people could not differ in their conclusions. City of Keller v. 

Wilson, 168 S.W.3d 802, 816 (Tex. 2005); Wyrick v. Bus. Bank of Texas, N.A., No. 

14-18-00062-CV, 2019 WL 1941839, at *4 (Tex. App.—Houston [14th Dist.] Apr. 

 

9 As mentioned, HCC’s general counsel approved the Easement Agreement as to form. 

We have not found any evidence in the record indicating that general counsel had the authority to 

execute the Easement Agreement, and the Partnership did not present any such evidence in 

support of its motion for summary judgment.
23

30, 2019, no pet. h.). The nonmovant has no burden to respond to a motion for 

summary judgment unless the movant conclusively establishes each element of its 

cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 

222-23 (Tex. 1999). 

The Partnership moved for summary judgment on its breach of contract 

claim against HCC. Accordingly, the Partnership was required to present 

conclusive proof of each element of breach of contract, including the existence of a 

valid contract. See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.—Houston 

[14th Dist.] 2006, pet. denied). To establish the existence of a valid contract signed 

by an agent for a principal, a claimant is required to show the agent had actual or 

apparent authority to execute the contract. See 2616 S. Loop L.L.C. v. Health 

Source Home Care, Inc., 201 S.W.3d 349, 356 (Tex. App.—Houston [14th Dist.] 

2006, no pet.). 

The Partnership argues that Byas, as chancellor, had actual authority to 

execute the Easement Agreement. The Partnership presented the following 

evidence in support of this argument: (1) HCC’s procurement policy approved on 

August 25, 2014, which increased the chancellor’s ability to “award [a]ny contract 

or purchase order” up to $75,000; (2) HCC’s Purchasing and Acquisition policy 

issued February 16, 2015, in which the board of trustees granted the chancellor 

“authority to initiate and execute contracts valued at up to $100,000”; and 

(3) minutes from a board meeting dated January 19, 2017 during which the board 

delegated to the chancellor “authority to negotiate, approve, and execute real 

property easements and rights of way” and the chancellor stated that easements do 

not “convey real property [or] involve expenditure of funds outside [the 

chancellor’s] approval limits.” 

As noted above, the Easement Agreement was signed on October 13, 2013. 
24

The documents presented by the Partnership all reflect policies instituted after that 

date. The August 2014 procurement policy states that the chancellor’s ability to 

award a contract was increased to $75,000, so it amounts to some evidence that 

prior to August 2014, Byas had the ability to award a contract for an amount less 

than $75,000. However, this policy is not conclusive evidence that Byas had the 

authority to execute the Easement Agreement because there is no evidence of the 

value of the Easement Agreement or of the dollar limit on Byas’s ability to award 

contracts when she executed the Easement Agreement.10 The February 2015 

Purchasing and Acquisition policy increased the $75,000 ceiling to $100,000 but 

similarly does not mention the ceiling prior to August 2014. The board minutes are 

also some evidence that chancellors had authority to grant easements prior to 2017 

because the then current chancellor articulated at the board meeting, as noted in the 

minutes, that the granting of easements “does not convey real property and it does 

not involve expenditure of funds outside [my] approval limits.” But he also stated 

that he brought the issue to the attention of the board on the recommendation of 

HCC’s general counsel because “the easements for existing properties might not be 

included in the blanket execution of all documents.” 

We conclude, based on this record, the Partnership did not conclusively 

prove as a matter of law that Byas had the authority to execute the Easement 

Agreement. Accordingly, the trial court erred in granting summary judgment in 

favor of the Partnership on its breach of contract claim. 

Conclusion

Having concluded that the trial court did not err in implicitly denying HCC’s 

 

10 As mentioned, this record does not establish whether HCC’s policy was limited to 

HCC’s expenditure of funds or whether the policy applied to contracts valued at a certain dollar 

amount.
25

plea to the jurisdiction but the Partnership did not conclusively establish its 

entitlement to summary judgment on its breach of contract claim, we reverse the 

trial court’s judgment and remand for proceedings consistent with this opinion. 

 

 /s/ Frances Bourliot 

 Justice 

Panel consists of Justices Christopher, Bourliot, and Zimmerer.