Reversed and Remanded and Majority a nd Concurring Opinion s filed

Octo ber 12 , 2021

.

In The



## Fourteenth Court of Appeals

NO. 14

- 19

- 00883

- CV

MARGUERITE TAMASY , Appellant

V.
LONE STAR COLLEGE SYSTEM , Appellee

On Appeal from the 127th District Court

Ha r ris County, Texas Trial Court Cause No. 2015

- 71050

C O N C U R R I N G O P I N I O N
Although Tamasy ’ s contracts with Lone Star covered mu ltiple years , the agreements containing the most favorabl e language for her are those from 20 1 1 to
2015. Regardi n g employee benefits, those agreement s provide:

. . . Employee shall be extended those benefits which are set forth in detail by System policy a nd laws of the State of Texas as may be amended. T hese include

. . . retirement program participation in2

TRS, O R P, TIAA

- CREF and/or TDA, when applicable

. . . . (Em phasis added). To me, this language means that Tamasy must be allowed to pa rticipate in the specific retirement benefit program under state law applicable to her for the years
2 011 to 2015

. This clause m entions T RS and ORP , both state law retirement programs

. TRS is the Teach er R e tiremen t System of Texas

. See Tex. Gov’t Code § § 821.001
et seq

. , 830.0011. ORP refers to the “ optiona l retirement program ” authorized by
Government Code Chapter 830. ORP is an alte r n ative to participation in TRS and
is offered to faculty members employed in state

- supported institutions of higher
education

. See id. §§ 830.001, 830.002 (b) , 83 0 .101(a) ; Gillesp ie v. Univ. of T ex

. Health Sci

. Ctr. , N o. 14

- 01

- 00201

- CV
, 200 2 WL 11 63002, at *1 n.2 (Tex. App.

— Houston [14th Dist.] May 30, 2002, no pet. ) ( not designated for publication )

. 1 For those employees electing to participate in the ORP, the statute requires a
contribution from the employee and a matching contribut io n from the S t ate , which
are sent to th e company cont rolling the relevant account or annuity

. See Tex.
Gov ’ t Code § § 830.201 , 830.202

. The statut e further r equires a n ORP participant and her employing institution to exec ute a contract providing for salary reduction s and employer contributions

. See i d

. § 830.204.

Lone Star says it deducted money from Tamasy ’ s paychecks each pay period for the purpose of contributing it to a retirement pro gram

. Lon e Star further expla ins that it sent the funds on Tamas y ’ s behalf t o the TRS and not to the ORP

.

1 Section 83 0.101(a) requires the gov erning board of each institution of higher education to pro vide to all faculty member s in the component institutions an opportunity to participate in the ORP. Te x. Gov’t C ode § 83 0.101(a)

. A me m ber of the retirement system may el ect to participate in the ORP in stead of TRS

. Id

. § 830.102(a).3

I t is undisputed , however, that ORP, not TRS, is the retirement benefit

program applicable to Tamasy, at least for the contract yea rs from 2011 to 2015.
This is established because Lone Star asserte d as much in i ts summary judgment
motio n and attached e vi dence that , in December 2 017, it certi fied a reporting error
under Government Code section 830.108 to restore be nefits to Tamasy ’ s ORP

account

. 2 Additionally, a ccording to Lone Star, in Augus t 2018 it made payme n ts
to Tamas y’s designate d ORP t rustee rep resenting the state contribution portio n of
her entitlement, together with the required interest payment , as contemplated by
section 830.108

. W hen Lone Star certified the error and mad e these payment s , it
was ackn o wledging th at the ORP is the retirement b en efits program applicable to Tamasy. 3

Discussion

L on e Star filed a traditional summary judgment motion on Tamasy ’ s breach
of contract claim. Lone S tar ’ s summary judgment arguments are condensed to two main poi n ts. First, it argued th at the contracts with Tamasy did not obligate Lo ne Star to provide any specific retirement be nefits to her. It re

- asserts this ground on appeal in defense of the summary judgment. I agree with the majorit y that Lone
Star ’ s motion does not sh ow conclusive ly that at least the 2011

- 2015 contrac ts made no promise for specific pen sion benefits. Lone S tar was obligat ed to extend

2 Government Code section 830.108 went into effect on September 1, 2017. See Act of May 17, 2017, 85th Leg., R.S., ch. 186 , § 4

. Entitled “ Correction of Certain R e p orting Errors, ” it creat ed a procedure for restoring an employee’s participation in the c orr ect retirement benefits program, transferring credit for employer contributions, and paying lost interest at a rate o f four percent per year to make aff e cted employ ees whole. See Tex. Gov ’ t Code § 830.108.

3 Tamasy present ed evidence with her summary ju dgment response showing that she informed Lone Star when she was h ired that she had el ected to participate in the OR P. While I focus my analysis on whe t her Lone St ar met its initial summa ry judgment bu rden a s the movant

— and thus it is unnecessary to co nsi der T a masy ’ s respons ive evidence in the event I conclude, as I do, that Lone Star failed i n its burden

— I note Tamasy ’ s evidence that she electe d ORP par t ici pation m erely to observe that th e parties ’ views on th is fact are consistent.4

to Tamasy parti cipation in a retirement program such a s either TRS or ORP, as applicable. If ORP part icipat i on is appli cable to her, as it is, then t he 2 011

- 2015 agreements inc lude an enfo rceable promise that she be allowed participation in the
ORP.

Lone Star ’ s second summary judgment ground, a lso urged on appeal, is that Tamasy cannot prevail on her breach of c ontract cla im beca use she has been “ made
whole ” by Lone Star ’ s se ction 830 .108 certification a nd the payment of the statutorily required funds to her ORP account. When Lone Star asserts that Tamasy has been “ made whole
, ” it is unclear whether it means th e re has been no

con tract breach, or Tam asy has no damages, or bot h. I wil l assume Lone Star challeng ed both eleme nts in its summary jud gment motion

. Lone Star ’ s essential point is that it proved that it reported the issue and

m ade the nece ssary contribu t ions to the ORP ac count in Tamasy ’ s name

. In

suppo rt, i t presented n o aff idavit or t estimony other than business records
af fidavits to prove up the documents showing the payments

. Tamasy does not

controvert Lone Star ’ s evidence of the payme nts to her OR P trustee

.
B ased on the relevant t ext of the 2011

- 2015 agreements , I agre e Lone Star
did not conclusively disprove breach for those years

. ORP was the retirement

pro gram applicable to Tamasy , but Lone Star failed to deposit her withholdings
into the ORP account and failed to contribute to that account until 2018 . Instead, it
contributed to a TRS account inapplicable to Tam asy and for which she was not eligible. Lone Star did not prove conclusively that it complied with the agreements
from 2011 to 2015.

I also do not be lieve Lone Star ’ s summary judgment motion fully and

conc lusively di sp roved the damage s element of Tamasy ’ s co ntract claim. As a junior college district created under Education Code Chapter 130, Lone Star is a5

poli tical subdivision of th e state

. Se e Tex. Civ. Prac. & Rem. Code § 101.001(3)(B) ; Lone Star Coll

. Sys. v. Immig ration R e form Coal

. , 418 S.W.3d 263, 270 n.7, 271 (Tex. App.

— Houston [14th Dist.] 201 3, no pet. ). Lone Star is
auth orized to enter into contract s and , for those contra c t s it exec u tes subject to subchapte r 271 of the Local Government Cod e, the Legislature has waived Lone
Star ’ s governmental immunity from suit for the purpose of adjudicating a claim for
breach of the co ntract

. See Tex. Loc. Gov ’ t Code § § 271

. 151, 271.152 ; Clear
Cre e k Indep. Sch. Dist. v. C otton Commercial USA, Inc ., 529 S .W.3d 569, 585 (Tex. App.

— Houston [14th Dist.] 2017, pet. denied)

. In such proceedings, the total amount of money awarded in an adjudication brought against a local governmental entity f

o r breach o f a contract subject to s ubchapter 271 is limited to
,

as r elevant : (1) the balance due and owed by the local governmental entity under the contract as it may have been amended ; (2) reasonable and necessary attorney s ’
fees that are “ equitable an d just ” ; a nd ( 3) interest. Tex. Loc . Gov ’ t Cod e § 271.153.

Lone Star proved payments in accordance with C hapter 830 to restore Tamasy ’ s ORP account. It is unclear, however, on this record, whether those payments demonstr ate that Tamasy has receiv ed the “ b alanc e due and owed ” under those ag reements t hat contain enfor ceable promises to exte nd ORP ret irement
benefits

. In its motion , Lone Star did not attempt to prove that Tamasy ’ s ORP

account balance is now equal to or greater than what it would have been i f Lone
Star had been contributing to the OR P account all along. Nor do I see any

agre ement among the parties on that point in the record

. Even if Lone Star proved that Tamasy ’ s ORP account v alue is today what it
would have been if Lone Star had made contr i b utio ns to ORP in stead of TRS
throu ghout the relevant years of Tamasy ’ s employment, t h is case still is not moot6

bec ause Tamasy potentially remains entitled to attorneys ’ fees , if any, as are

“ equitable and just. ” Id

. Even if the payments to her ORP t rus t ee satisf y the

“ balance due and owe d ” by Lone Star, those payments di d not occur until 2018,
after she filed suit. Tamasy ’ s live p etitio n plea ds for attorneys ’ f ees, and Lone Star did not disprove attorney s ’ fees or mention them i n its summary judgment m o tion

. For these reasons, I concur in th is court ’ s judgm ent to reverse and re mand
the cause for further proceedings.

/s/ Kevin Jewell Justice

Panel consists of Justices Jewell, Po issant , and Wilson

. (Po i ssant, J ., majo rity).