No. 03-15-00377-CV

IN THE THIRD COURT OF APPEALS 

at AUSTIN, TEXAS 

__________________________________________________________________ 

CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN 

HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF 

LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND 

PLANNING DIRECTOR FOR THE CITY OF LEANDER 

Appellants 

v.

PREMAS GLOBAL LEANDER I, LLC 

Appellee 

__________________________________________________________________ 

Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court, 

Williamson County, Texas 

__________________________________________________________________ 

APPELLANTS’ BRIEF 

__________________________________________________________________ 

Knight & Partners 

223 W. Anderson Lane, Ste. A-105 

Austin, Texas 78752 

(512) 323-5778 Telephone 

(512)323-5773 Facsimile 

ATTORNEYS FOR APPELLANT 

Bradford E. Bullock 

State Bar No. 00793423 

APPELLANTS REQUEST ORAL ARGUMENT 

ACCEPTED

03-15-00377-CV

6142265

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/20/2015 3:57:24 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 3:57:24 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES & COUNSEL

In order that the members of this Court may determine disqualification and 

recusal under the Texas Rules of Appellate Procedure, Appellant certifies that the 

following is a complete list of the parties, attorneys, and other persons with a 

financial interest in the outcome of this lawsuit:

Appellant: Attorneys for Appellant:

CITY OF LEANDER, TEXAS

Knight & Partners

Attorneys at Law

Executive Office Terrace

223 West Anderson Lane, Suite A105

Austin, Texas 78752

(512) 323-5778 Office

(512) 323-5773 Facsimile

Bradford E. Bullock

State Bar No. 00793423

bradford@cityattorneytexas.com

KENT CAGLE Knight & Partners

Attorneys at Law

Executive Office Terrace

223 West Anderson Lane, Suite A105

Austin, Texas 78752

(512) 323-5778 Office

(512) 323-5773 Facsimile

Bradford E. Bullock

State Bar No. 00793423

bradford@cityattorneytexas.com

THOMAS YANTIS Knight & Partners

Attorneys at Law

Executive Office Terrace

223 West Anderson Lane, Suite A105
iii

Austin, Texas 78752

(512) 323-5778 Office

(512) 323-5773 Facsimile

Bradford E. Bullock

State Bar No. 00793423

bradford@cityattorneytexas.com

Appellee: Attorneys for Appellee:

PREMAS GLOBAL LEANDER I, LLC Howry, Breen & Herman LLP

1900 Pearl Street

Austin, Texas 78705-5408

(512) 474-7300 Office

(512) 474-8557 Facsimile

Sean E. Breen

State Bar No. 00783715

sbreen@howrybreen.com

Randy R. Howry

State Bar No. 10121690

rhowry@howrybreen.com

James Hatchitt

State Bar No. 24072478

jhatchitt@howrybreen.com
iv

TABLE OF CONTENTS

IDENTITY OF PARTIES & 

COUNSEL................................................................................................ ii

INDEX OF 

AUTHORITIES................................................................................. vii

JURISDICTIONAL 

STATEMENT...................................................................... ................3

STATEMENT OF THE 

CASE...................................................................................................3

STATEMENT ON 

ORAL ARGUMENT .............................................................................4

ISSUES PRESENTED FOR 

REVIEW..................................................................................................4 

STATEMENT OF 

FACTS................................................................................................6

SUMMARY OF THE 

ARGUMENT...........................................................................................9

ARGUMENT .......................................................................................13

Issue One – Appellee has not asserted a valid waiver of governmental 

immunity based on an alleged waiver by contract; therefore, 

Appellee’s pleading affirmatively negates the trial court’s jurisdiction 

over Appellants on this ground.

............................................................................ 13

Issue Two – Appellee has not asserted a claim for relief for which 

immunity has been waived under Texas Local Government Code § 

271.152; therefore, Appellee’s pleading affirmatively negates the trial 

court’s jurisdiction over Appellants on this ground.

............................................................................ 18
v

Issue Three – Appellee has not asserted a valid waiver of 

governmental immunity based on Appellants’ conduct; therefore, 

Appellee’s pleading affirmatively negates the trial court’s jurisdiction 

over Appellants on this ground.

............................................................................ 25

Issue Four – Appellee has not asserted a valid waiver of governmental 

immunity based on a proprietary function; therefore, Appellee’s 

pleading affirmatively negates the trial court’s jurisdiction over 

Appellants on this ground. 

............................................................................ 27

Issue Five – Appellee has not asserted a valid waiver of governmental 

immunity based on the Uniform Declaratory Judgments Act because it 

is incidental to and redundant of a breach of contract claim and a 

claim brought pursuant to Chapter 245 of the Local Government 

Code; therefore, Appellee’s pleadings affirmatively negate the trial 

court’s jurisdiction over Appellants on this ground.

............................................................................ 30

Issue Six – Appellee has asserted a claim for declaratory relief and a 

writ of mandamus against Appellants the City, and Cagle and Yantis 

in their individual capacities, but such relief is only available against 

officials in their official capacities for purely ministerial acts; 

therefore, Appellee’s pleading affirmatively negates the trial court’s 

jurisdiction over Appellants the City, and Cagle and Yantis in their 

individual capacities, and all Appellants to the extent it asks them to 

perform non-ministerial acts. 

............................................................................ 33

Issue Seven – Appellee has not asserted a valid waiver of immunity 

for an award of attorneys’ fees against Appellants because their claims 

are not cognizable under the relevant statute, or the statute itself does 

not provide for an award of attorneys’ fees; therefore, Appellants’ 

pleading affirmatively negates the trial court’s jurisdiction to award 

attorneys’ fees to Appellees. 

............................................................................ 38

PRAYER ..............................................................................................40
vi

CERTIFICATE OF 

COMPLIANCE .......................................................... .........................41

CERTIFICATE OF 

SERVICE .............................................................................................42

APPENDIX .......................................................... ...............................43
vii

INDEX OF AUTHORITIES

CASES

Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)

................................................................................................36

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)

................................................................................................37

Associated Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d at 

753............................................................................................39

Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.-Austin 2013, 

no pet.) .................................................................................25, 26

Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 29 

(Tex. App.-San Antonio 2006, pet. dism’d)

................................................................................................16

Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston [14th

Dist.] 2005, no pet.) .......................................................................14

Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)

................................................................................................19

City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. App.—Fort Worth 2007, 

pet. Denied) ................................................................................13

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009)

........................................................................................31, 35, 37

City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007)

................................................................................................20

City of Georgetown v. Lower Colorado River Auth., 413 S.W.3d 803, 812-14 (Tex. 

App.-Austin 2013), reh’g overruled (Nov. 13, 2013), review dismissed (May 30, 

2014) ...........................................................................24, 29, 30, 32
viii

City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006)

.................................................................................................39

City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d 739, 744 (Tex. 

App.—Houston [1st Dist.] 2008, pet. denied)

.................................................................................................20

City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)

.................................................................................................14

City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.-Dallas 

2008, pet. denied) ...........................................................................24

City of N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900, 

908 (Tex. App.-Fort Worth 2011, no pet.)

........................................................................................20, 23, 31

City of Round Rock v. Whiteaker, 241 S.W.3d 609, 628 (Tex. App.-Austin 2007, 

pet denied) ...............................................................................22, 36

City of San Antonio v Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL 

631484, at *1, *6 (Tex. App.-San Antonio Feb. 19, 2014), review denied (May 1, 

2015) (unreported case) .................................................................33,39

City of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. app.-Fort Worth 

2014), review denied (Oct. 24, 2014) ..........................................17, 25, 27

Clear Lake City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex. 

App. Houston 1st Dist. Mar. 11, 2010) ...................................................20

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)

.................................................................................................13

Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 S.W.3d 839, 842 

(Tex. App.-Dallas 2009, pet. denied) ....................................................16

Federal Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997)

....................................................................................15, 25, 26, 27
ix

Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.-Austin 

2014, no pet.).............................................................................36, 37

John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 289 

(Tex. 2002) ..................................................................................39

Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex. App.—Houston [1st Dist.] 

1999, no pet.) ................................................................................19

Multi-County Water Supply Corp. v. City of Hamilton, 321 S.W.3d 905, 908 (Tex. 

App.-Houston [14th Dist.] 2010, pet. denied)

.................................................................................................32

New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.-Austin 

2014, no pet.) ...........................................................................26, 28

Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex. App.-Austin 2011. 

no pet.) .......................................................................................39

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006)

.................................................................................................15

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)

................................................................................................26

State v. Langley, 232 S.W.3d 363, 367 (Tex. App.-Tyler 2007, no pet.)

................................................................................................15

State v. Oakley, 227 S.W. 3d 58, 62 (Tex. 2007)

................................................................................................21

Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013)

.................................................................................................25

Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)

........................................................................................13, 14, 15

Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)

................................................................................................18
x

Texas Mun. Power Agency v. Pub. Util. Com’n, 260 S.W.3d 647, 650 (Tex. App.-

Austin 2008, no pet.)........................................................................33

Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling 

Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet. 

abated) ........................................................................................33

Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 908 (Tex. App.-

Houston [1st Dist.] 2007, pet denied) ....................................................25

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 

2002) ...............................................................................14, 17, 31

Tooke v. City of Mexia, 197 S.W.3d 325, 332, 346 (Tex. 2006)

..................................................................................15, 16, 21, 24

Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002)

..........................................................................................15, 17 

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 701 (Tex. 2003)

.......................................................................................... 15, 21

CONSTITUTION

None

STATUTES

TEX. CIV. PRAC. & REM. CODE ANN. §51.014 (a) (8) 

...................................................................................................3

TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2) 

...................................................................................................4

TEX. CIV. PRAC. & REM. CODE ANN. §101.0215 (a) (29) (Vernon) (West)

.................................................................................................29

TEX. CIV. PRAC. & REM. CODE ANN. §37.006(b) (Vernon)

.............................................................................................30, 31
xi

TEX. LOC. GOV’T CODE ANN. § 271.152 (Vernon) 

..............................................................................................9, 10 

TEX. LOC. GOV’T CODE ANN. §143.015(b) (Vernon)

.................................................................................................22

TEX. LOC. GOV’T CODE ANN. §245.006 (Vernon)

.............................................................................................32, 38

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

.................................................................................................19

TEX. LOC. GOV’T CODE ANN. §271.151(2)(b) (West)

.................................................................................................22

TEX. LOC. GOV’T CODE ANN. §271.152 (Vernon)

..........................................................................................4, 18, 19

TEX. LOC. GOV’T CODE ANN. §271.153

.............................................................................................10, 21

TEX. LOC. GOV’T CODE ANN. §271.153(a) (Vernon)

.................................................................................................19

TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon)

.............................................................................................21, 22

TEX. GOV’T CODE ANN. §311.034 (Vernon) (West) 

.............................................................................................15, 18

TEX. GOV’T CODE ANN. §311.034 (West 2005 & Supp. 2009)

.................................................................................................21

TEX. GOV’T CODE ANN. §311.011 (Vernon)

................................................................................................18

TEXAS TORT CLAIMS ACT (TEX. CIV. PRAC. & REM. CODE CH. 101)

.............................................................................................28, 29
xii

UNIFORM DECLARATORY JUDGMENT ACT (TEX. CIV. PRAC. & REM. 

CODE § 37.009)

.................................................................................................12

RULES

TEX. R. APP. P. 39.1(b) .....................................................................4

TEX. R. APP. P. 39.1(c) ....................................................................4

TEX. R. APP. P. 39.1(e), 39.1(d) ...........................................................4

OTHER AUTHORITIES

Acts 2013, 8rd Leg., ch. 1138 (H.B. 3511), §3, effective June 14, 

2013...........................................................................................22
1

No. 03-15-00377-CV

IN THE THIRD COURT OF APPEALS

at AUSTIN, TEXAS

__________________________________________________________________

CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN 

HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF 

LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND 

PLANNING DIRECTOR FOR THE CITY OF LEANDER

Appellants

v.

PREMAS GLOBAL LEANDER I, LLC

Appellee

__________________________________________________________________

Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court, 

Williamson County, Texas

__________________________________________________________________

APPELLANTS’ BRIEF

__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

NOW COME Appellants, the CITY OF LEANDER, TEXAS; KENT 

CAGLE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CITY 

MANAGER OF THE CITY OF LEANDER; AND THOMAS YANTIS, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT CITY 
2

MANAGER AND PLANNING DIRECTOR FOR THE CITY OF LEANDER, 

and submit this appellants’ brief. 
3

JURISDICTIONAL STATEMENT

This is a timely, accelerated appeal pursuant to Texas Rule of Appellate 

Procedure 28.1 from an interlocutory order denying Appellants’ plea to the 

jurisdiction.

STATEMENT OF THE CASE

Appellee, a property developer, asserted claims for breach of contract 

(development agreement), specific performance, declaratory judgment, an 

injunction, mandamus and attorneys’ fees under various theories and statutes 

against Appellants City of Leander and Kent Cagle and Thomas Yantis in their 

individual and official capacities. CR:6-88.

1

 Appellants answered (CR:89-95) and 

filed a motion to dismiss for lack of jurisdiction, asserting various fatal defects in 

Appellee’s pleadings. CR:96-162. Following a hearing on Appellants’ 

jurisdictional plea, the trial court denied Appellants’ motion to dismiss for lack of 

jurisdiction.

2

 CR:329. Appellants filed their notice of appeal (CR:332-35) in 

conjunction with a motion to extend time to perfect notice with this Court. 

Because this is an appeal of an interlocutory order by a governmental entity, 

pursuant to Texas Civil Practice and Remedies Code § 51.014 (a)(8), which was 

filed and requested for hearing before the trial court not later than the 180th day 

after Appellants filed their original answer and/or first responsive pleading3, all 

 

1

The appellate record consists of a single volume of the Clerk’s record. Therefore, 

references to the Clerk’s Record shall be designated “CR:” followed by the relevant page 

number(s). 

2 At the hearing in question, the trial court also heard Appellee’s request for mandamus 

relief, which the trial court granted. CR:330-31. The mandamus order against Cagle and 

Yantis in their official capacities is not a subject of this appeal; however, Premas’ 

pleadings also assert a right to mandamus relief against the City, and Cagle and Yantis in 

their individual capacities. The City and Cagle and Yantis, in their individual capacities, 

do challenge Premas’ request for mandamus relief against them and contend that this 

claim should have been dismissed against them. Appellants also note that by operation of

TEX. CIV. PRAC. & REM. CODE § 51.014(a) (8), (b), and (c), the trial court’s mandamus 

order against Cagle and Yantis in their official capacities is stayed pending resolution of 

this appeal. 

3 Appellants’ answer was filed on February 20, 2015. CR:89. The trial court issued its 

order denying Appellants’ plea to the jurisdiction on May 22, 2015. CR:329. 
4

proceedings in the trial court are stayed pending resolution of this appeal. TEX.

CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2). 

STATEMENT ON ORAL ARGUMENT – ORAL ARGUMENT 

REQUESTED

The Court should grant oral argument for the following reasons:

a. The issues presented have not been authoritatively decided by this Court. 

See TEX. R. APP. P. 39.1(b). Appellee has asserted numerous, 

overlapping claims against Appellants, which implicate the application of 

governmental immunity in novel ways. 

b. Oral argument would allow the Court to better analyze the complex legal 

issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The facts 

and legal grounds for the claims alleged in Appellee’s original petition 

compelled the trial court to analyze various aspects of governmental 

immunity in novel ways. Oral argument will assist the Court in 

understanding the interplay of the relevant claims and defenses. 

c. Oral argument would significantly aid the Court in deciding this case. 

See TEX. R. APP. P. 38.1(e), 39.1(d). Oral argument will assist the Court 

in understanding the nuanced arguments related to governmental 

immunity, which are dispositive of this appeal.

ISSUES PRESENTED FOR REVIEW

Issue One – Appellee has not asserted a valid waiver of governmental 

immunity based on an alleged waiver by contract; therefore, Appellee’s pleading 

affirmatively negates the trial court’s jurisdiction over Appellants on this ground.

Issue Two – Appellee has not asserted a claim for relief for which immunity 

has been waived under Texas Local Government Code § 271.152; therefore, 
5

Appellee’s pleading affirmatively negates the trial court’s jurisdiction over 

Appellants on this ground.

Issue Three – Appellee has not asserted a valid waiver of governmental 

immunity based on Appellants’ conduct; therefore, Appellee’s pleading 

affirmatively negates the trial court’s jurisdiction over Appellants on this ground.

Issue Four – Appellee has not asserted a valid waiver of governmental 

immunity based on a proprietary function; therefore, Appellee’s pleading 

affirmatively negates the trial court’s jurisdiction over Appellants on this ground. 

Issue Five – Appellee has not asserted a valid waiver of governmental 

immunity based on the Uniform Declaratory Judgments Act because it is incidental 

to and redundant of a breach of contract claim and a claim brought pursuant to 

Chapter 245 of the Local Government Code; therefore, Appellee’s pleadings 

affirmatively negate the trial court’s jurisdiction over Appellants on this ground.

Issue Six – Appellee has asserted a claim for declaratory relief and a writ of 

mandamus against Appellants the City, and Cagle and Yantis in their individual 

capacities, but such relief is only available against officials in their official 

capacities for purely ministerial acts; therefore, Appellee’s pleading affirmatively 

negates the trial court’s jurisdiction over Appellants the City, and Cagle and Yantis 

in their individual capacities, and all Appellants to the extent it asks them to 

perform non-ministerial acts.
6

Issue Seven – Appellee has not asserted a valid waiver of immunity for an 

award of attorneys’ fees against Appellants because their claims are not cognizable 

under the relevant statute, or the statute itself does not provide for an award of 

attorneys’ fees; therefore, Appellants’ pleading affirmatively negates the trial 

court’s jurisdiction to award attorneys’ fees to Appellees. 

STATEMENT OF FACTS

Appellant, the City of Leander, Texas (hereinafter “City”) and Appellee 

Premas Global Leander I, LLC (hereinafter “Premas”) entered into a written 

agreement entitled “Development and Annexation Agreement for Global Village” 

(hereinafter “Development Agreement”) with an effective date of September 2, 

2010, which contemplated the planned development of slightly more than 65 acres 

of property. CR:34-82. The Development Agreement is for a ten-year term 

(CR:50), and it contains several deadlines by which Premas had to perform certain 

acts. CR:41. Specifically, the Development Agreement provided that Premas 

shall: apply for final plat approval of Phase One within 180 days of the effective 

date; apply for a site development permit within three years of the effective date

(September 2, 2013); and apply for a final plat or preliminary plan within four 

years of the effective date (September 2, 2014). CR:41. The Development 

Agreement also provided that time was of the essence in the performance of the 

agreement. CR:50. 
7

On September 19, 2014, the City sent a notice of default to Premas, 

indicating that it was in default of its obligations to apply for a site development 

permit within three years and apply for a final plat or preliminary plan within four 

years of the effective date. CR:84. The City advised Premas that, pursuant to the 

terms of the Development Agreement (CR:46), Premas had thirty days to cure 

these defaults in its obligations to perform. CR:84. On October 28, 2014, the City 

sent notice to Premas that its thirty-day cure period had expired and that due to its 

failure to cure by submitting the applicable applications to the City, the City 

considered the Development Agreement terminated. CR: 85:86. 

Following the expiration of the 30 day cure period, Premas ultimately 

attempted to submit applications for a site development permit and final or 

preliminary plat on December 15, 2014 (CR:18), which the City refused to accept 

or process on the grounds that the City considered the Development Agreement 

terminated. CR:87-88. Thereafter, Premas filed its Original Petition, asserting 

various causes of action against the City and Appellants Kent Cagle (hereinafter 

“Cagle”) and Thomas Yantis (hereinafter “Yantis”) in both their official and 

individual capacities. CR:6-33. Premas asserted claims for (a) breach of contract 

against the City, seeking specific performance of the Development Agreement, (b) 

a request for declaratory relief against the City that the Development Agreement is 

valid and enforceable, (c) a writ of mandamus against all Appellants ordering them 
8

to accept and process Premas’ late applications, (d) an application for temporary 

and permanent injunction against the City, requiring specific performance of the 

Development Agreement, and in support thereof, asserted various alleged waivers 

of immunity. CR:19-31. 

Appellants answered (CR:89-95) and filed a plea to the jurisdiction, 

asserting that the trial court was without jurisdiction over Appellants with regard to 

specific claims asserted by Premas because Premas’ pleadings affirmatively 

negated the trial court’s jurisdiction. CR:96-162. Premas also requested a hearing 

on its requests for mandamus relief (CR:251-311), which the trial court granted at 

the same time it denied Appellants’ plea to the jurisdiction. CR:330-31. The trial 

court ordered Cagle and Yantis in their official capacities to accept the applications 

tendered by Premas on or about December 15, 2014, and review the applications 

according the applicable law and rules in effect on September 2, 2010. CR: 330-

31.4 

 

4 Appellants Yantis and Cagle have accepted the tendered applications for processing and 

are not appealing the trial court’s order granting mandamus in their official capacities; 

however, Premas’ pleadings asserted mandamus against all Defendants, including the 

City and Cagle and Yantis in their individual capacities. The City and Cagle and Yantis, 

in their individual capacities, do challenge Premas’ request for mandamus relief against 

them and contend that this claim should have been dismissed against them. Appellants 

also note that by operation of Texas Civil Practice and Remedies Code §§ 51.014 (b), (c), 

the mandamus order against Cagle and Yantis in their official capacities is stayed 

pending resolution of this appeal. 
9

Thereafter, on June 18, 2015, Appellants filed their notice of interlocutory 

appeal (CR:332-35) and concurrently filed a motion for extension of time to file 

notice of interlocutory appeal with this Court. On June 30, 2015, the Williamson 

County District Clerk filed the clerk's record with the Court. CR:336-37. 

SUMMARY OF THE ARGUMENT

Under the governmental immunity doctrine, in a suit against a governmental 

unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging 

a valid waiver of immunity. Premas failed to do so in its claims for breach of 

contract, declaratory judgment, injunction, and mandamus against Appellants for a 

variety of reasons. 

First, Premas asserted that the City waived immunity by virtue of a provision 

in the Development Agreement that purports to waive immunity. CR:124-25. The 

law is clear, however, that only the Legislature can waive governmental immunity 

by clear and unambiguous language. Contractual provisions purporting to waive 

immunity have been expressly rejected as valid grounds for waiver and Premas’ 

pleadings failed to invoke the trial court’s jurisdiction on its breach of contract 

claim on this ground. The trial court committed reversible error by denying the 

City’s plea on this ground.

Second, Premas asserted that § 271.152 of the Texas Government Code 

clearly and unambiguously waived the City’s immunity for its breach of contract 
10

claim against the City. Section 271.152 is a valid waiver of immunity for certain 

contracts, and the City does not dispute that the Development Agreement is a 

written contract for the provision of goods or services. However, § 271.153 also 

expressly limits the remedies that are available to claimants, including a limit on 

the type of money damages a claimant can seek and a strict limit on the type of 

contracts for which specific performance is available. Premas has not asserted a 

claim for any money damages under its breach of contract claim, but rather only 

seeks specific performance of the Development Agreement. Premas’ pleadings, 

however, affirmatively negate the trial court’s jurisdiction to award specific 

performance for this kind of contract. Premas’ pleadings fail to invoke the trial 

court’s jurisdiction on its breach of contract claim on this ground. The trial court 

committed reversible error by denying the City’s plea on this ground.

Third, Premas asserted that the City waived its immunity from suit by 

“misleading conduct.” CR:28. This claim is simply another iteration of Premas’ 

assertion that the City waived immunity by contract and is equally unavailing for 

the same reasons. The trial court committed reversible error by denying the City’s 

plea on this ground. 

Fourth, Premas asserted that the City was not entitled to immunity on its 

breach of contract claim because the Development Agreement constituted a 

proprietary, as opposed to a governmental action. The Legislature and the courts 
11

have previously classified contracts such as the Development Agreement as 

governmental actions, particularly where, as here, the Development Agreement 

addresses land-uses that extend beyond the City’s corporate limits into its 

extraterritorial jurisdiction. The trial court committed reversible error by denying 

the City’s plea on this ground.

Fifth, Premas asserted a Uniform Declaratory Judgment Act (hereinafter 

“UDJA”) claim against the City, seeking a declaration that the Development 

Agreement is valid and enforceable, and an award of attorneys’ fees pursuant 

thereto. The UDJA, however, does not waive a city’s immunity from suit for 

breach of contract claims, and the trial court committed reversible error by not 

granting the City’s plea on this ground. Moreover, Premas also asserted a claim 

for declaratory relief pursuant to Chapter 245 of the Local Government Code. 

While Chapter 245 waives a city’s immunity from suit for certain actions, 

including injunctive relief, mandamus, and declarations related to “permits,” which 

the Development Agreement is, Chapter 245 does not waive a city’s immunity for 

an award of attorneys’ fees and a claimant cannot bootstrap a Chapter 245 claim to 

a UDJA claim simply for the purpose of obtaining attorneys’ fees. The trial court 

committed reversible error by not granting the City’s plea on this ground.

Sixth, the only relief Premas seeks (aside from impermissible claims for 

attorneys’ fees, which will be discussed separately) is for equitable relief 
12

(injunction and/or mandamus) and specific performance of a contract with the 

City. Neither injunctive relief nor specific performance is available against a city 

official in their individual capacities on the facts pled by Premas because such 

relief would not bind the actual party to the Development Agreement – the City. 

And the Texas Supreme Court has made it clear that mandamus is only available 

against officials in their official capacities. Therefore, Premas’ pleadings 

affirmatively negate the trial court’s jurisdiction over Cagle and Yantis in their 

individual capacities. The trial court committed reversible error by not granting 

Cagle and Yantis’ plea on this ground in their individual capacities.

Seventh, in addition to requesting a mandamus order against Cagle and 

Yantis in their individual capacities, Premas’ pleadings also request a mandamus 

order against the City. Again, the Texas Supreme Court has made it clear that 

mandamus is only available against officials in their official capacities and Premas’ 

pleadings affirmatively negate the trial court’s jurisdiction over the City on this 

ground. The trial court committed reversible error by not granting the City’s plea 

on this ground. 

Eighth, Premas has asserted a claim for attorneys’ fees under section 37.009 

of the UDJA, but because the relief that Premas seeks is redundant of the relief 

afforded under Chapter 245 of the Local Government Code, Premas’ UDJA claim 

is nothing more than an impermissible attempt to bootstrap an attorney fee award 
13

to their underlying claim. This Court has previously addressed this very issue and 

found jurisdiction under the UDJA lacking for an attorneys’ fee award under 

similar facts. The trial court committed reversible error by not granting 

Appellants’ plea on this ground. 

ARGUMENT

Issue One – Appellee has not asserted a valid waiver of governmental 

immunity based on an alleged waiver by contract; therefore, Appellee’s 

pleading affirmatively negates the trial court’s jurisdiction over Appellants 

on this ground.

As a preliminary matter, the rules governing a plea to the jurisdiction are 

germane to the determination of this issue. A plea to the jurisdiction can challenge 

either the pleadings or the existence of jurisdictional facts. Tex. Dept. of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When a plea to the 

jurisdiction challenges a plaintiff's pleadings, the question is whether plaintiff has 

alleged sufficient facts to demonstrate the court's subject matter jurisdiction over 

the matter. Id. Courts construe pleadings liberally in the plaintiff's favor and look 

to the pleader's intent. City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. 

App.--Fort Worth 2007, pet. denied). When the pleadings neither allege sufficient 

facts nor demonstrate incurable defects in jurisdiction, the issue is one of pleading 

sufficiency and the plaintiff should be afforded the opportunity to amend. County 

of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If, however, the pleadings 
14

affirmatively negate jurisdiction, then the plea to the jurisdiction may be granted 

without leave to amend. Id. 

To prevail on the plea, the defendant must show that even if all the plaintiff's 

pleaded allegations are true, an incurable jurisdictional defect remains on the face

of the pleadings that deprives the trial court of subject matter jurisdiction. 

Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.--Houston [14th 

Dist.] 2005, no pet.). Appellate courts review a trial court's ruling on a plea to the 

jurisdiction de novo. Texas Department of Parks & Wildlife v. Miranda, 133 

S.W.3d 217, 226 (Tex.2004).

Cities enjoy governmental immunity from suit for actions undertaken in 

their governmental capacity, including contracting. City of Houston v. Williams, 

353 S.W.3d 128, 134 (Tex. 2011). The Texas Supreme Court has clearly stated 

that suits to establish a contract’s validity, enforce its performance, or establish a 

governmental entity’s liability cannot proceed without legislative permission. Tex. 

Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) 

(suits against governmental officials seeking to establish contract's validity, 

enforce performance under a contract, or impose contractual liabilities are suits 

against the governmental entity and cannot be maintained without legislative 

permission) (emphasis supplied). Courts defer to the Legislature because the 

decision to expend public funds for alleged contractual liability involves policy 
15

choices more properly made by a legislative body. Tooke v. City of Mexia, 197 

S.W.3d 325, 332 (Tex. 2006). 

Governmental immunity from suit is a subject-matter jurisdiction question, 

and cannot be waived or conferred by agreement, must be considered by a court 

sua sponte, and may even be raised for the first time on appeal. Reata Constr. 

Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006). Without subject-matter 

jurisdiction, a court cannot render a valid judgment. Miranda, 133 S.W.3d at 225-

26. 

In order to proceed in a claim against a city, even under contract, a plaintiff 

must plead an applicable, clear and unambiguous waiver of immunity from suit. 

TEX. GOV’T CODE ANN. §311.034 (Vernon); Travis County v. Pelzel & Assocs. 

Inc., 77 S.W.3d 246, 248 (Tex. 2002). It is not enough for a party to simply allege 

a breach of contract claim as they would against a private party – a city’s immunity 

from suit is not automatically waived merely by entering into a contract. Federal 

Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997); State v. Langley, 232 S.W.3d 

363, 367 (Tex.App.—Tyler 2007, no pet.). And because immunity waivers are 

strictly construed in favor of the governmental entity, the Legislature’s intent to 

waive immunity must be “unmistakable.” Wichita Falls State Hosp. v. Taylor, 106 

S.W.3d 692, 701 (Tex. 2003) (courts construe ambiguities in manner that retains 

State's immunity). 
16

A governmental entity’s immunity from suit for breach of contract extends 

to suits seeking specific performance. See Bexar Metro. Water Dist. v. Educ. & 

Econ. Dev. Joint Venture, 220 S.W.3d 25, 29 (Tex. App.—San Antonio 2006, pet. 

dism'd) (suit for declaratory and injunctive relief seeking to “compel performance 

of or to enforce rights arising out of a contract” with governmental entity barred by 

immunity). When the only relief that a party seeks is not permitted by an 

applicable immunity wavier, the governmental entity retains immunity from the 

claim. See id. If a plaintiff seeks only excluded relief, then immunity is not 

waived. See Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 

S.W.3d 839, 842 (Tex. App.—Dallas 2009, pet. denied), citing Tooke v. City of 

Mexia, 197 S.W.3d 325, 346 (Tex.2006) (where plaintiffs' only claim was for lost 

profits, which are excluded consequential damages, immunity not waived).

Premas has asserted a breach of contract claim against the City, and in 

support of this claim alleges that the City waived immunity by contractual 

provision. CR:26. Premas relies on section 9.03 of the Development Agreement, 

which provides that the City of Leander “waives its governmental immunity from 

suit and immunity from liability as to any action brought by Premas to pursue 

equitable remedies available under the Agreement.” CR:46-47. This section also 

provides that the City waives any claim or defense that any provision of the 

Agreement is unenforceable on the ground that it constitutes an impermissible 
17

delegation or impairment of the performance of the City’s governmental functions. 

CR:47. The question is not so much whether the language in the Development 

Agreement purports to waive the City’s immunity from suit, but rather whether 

such language is enforceable. 

In construing a contractual provision that expressly purported to waive 

governmental immunity, courts have held that neither a governmental entity nor its 

agents can waive immunity even by signing a contract with such a provision. City 

of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. App.—Fort Worth 

2014), review denied (Oct. 24, 2014) citing Texas Natural Res. Conservation 

Com'n v. IT-Davy, 74 S.W.3d 849, 858 (Tex. 2002). Premas’ contentions to the 

contrary are not grounded in the law. Premas’ original petition cites Travis Cnty. 

v. Pelzel & Assocs, Inc., (CR:26) for the proposition that the Texas Supreme Court 

has authorized waivers of immunity by contract or conduct. 77 S.W.3d 246, 248 

(Tex. 2002). Premas’ reliance on Pelzel is misplaced for several reasons. 

First, the court specifically declined the claimants request to adopt a waiverby-conduct exception to immunity. Pelzel at 251-52. Second, Texas courts have 

been consistent and clear in their holdings for more than 150 years that “it is the 

Legislature's sole province to waive or abrogate sovereign immunity.” IT-Davy at 

857 (declining to recognize waiver-by-conduct exception). Third, the Legislature’s 

own statutory pronouncement belies the fallacy of Premas’ interpretation of Pelzel. 
18

TEX. GOV’T CODE ANN. § 311.034 (West) (“In order to preserve the legislature's 

interest in managing state fiscal matters through the appropriations process, a 

statute shall not be construed as a waiver of sovereign immunity unless the waiver 

is effected by clear and unambiguous language.”) (emphasis supplied). 

Premas failed to invoke the trial court’s jurisdiction for a breach of contract 

claim against the City based on a contractual provision purporting to waive the 

City’s immunity from suit and the trial court erred in denying the City’s plea to the 

jurisdiction on this ground. The City respectfully requests that the Court reverse 

the trial court and render judgment on behalf of the City and dismiss Premas’ 

breach of contract claim on this ground. 

Issue Two – Appellee has not asserted a claim for relief for which 

immunity has been waived under Texas Local Government Code § 

271.152; therefore, Appellee’s pleading affirmatively negates the trial 

court’s jurisdiction over Appellants on this ground.

Statutory construction is a question of law, reviewed de novo. Tex. Dep't of 

Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). In construing a statute, 

courts attempt to determine and to give effect to the Legislature's intent. Id. 

Courts look first to the plain and common meaning of the language of the statute, 

and may not construe a provision of a statute so as to render another provision 

absurd or meaningless. See TEX. GOV’T CODE ANN. § 311.011 (Vernon) (words 

and phrases shall be read in context and construed according to rules of grammar 
19

and common usage); see also Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 

(Tex. 1987) (“We will give effect to all the words of a statute and not treat any 

statutory language as surplusage if possible.”); Mueller v. Beamalloy, Inc., 994 

S.W.2d 855, 860 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (“In construing 

statutes as a whole, we consider all provisions of an act and decline interpretations 

that produce absurd results or render terms meaningless.”). 

Premas asserts that its claim for breach of contract is authorized by Section 

271.152 of the Texas Local Government Code (CR:26), which provides a limited 

waiver of governmental immunity. TEX. LOC. GOV’T CODE ANN. §271.152 

(Vernon) (immunity is waived for breach of contract claims, “subject to the terms 

and conditions of this subchapter.”); TEX. LOC. GOV’T CODE ANN. §271.153(a) 

(Vernon) (recoverable damages are limited). This waiver is for the limited purpose 

of adjudicating a claim for breach of those contracts subject to that subchapter –

that is, properly executed contracts for “goods or services.” TEX. LOC. GOV’T 

CODE ANN. §271.151(2)(A) (Vernon) (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). 

The City does not dispute that the Development Agreement (CR:34-52) 

provides for the provision of “goods or services” as contemplated by the limited 
20

waiver of sections 271.151 and 271.152, similar to the agreement at issue in City of 

N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900, 908 (Tex. 

App.—Fort Worth 2011, no pet.) (development agreement required developer to 

construct, at developer’s cost, infrastructure improvements). Nor does the City 

contend that either party failed to properly execute the contract or that it was 

executed without authorization. CR:52. 

Rather, because its pleadings seek relief and recovery of damages that the 

Legislature has not authorized, Premas failed to invoke the court’s jurisdiction by 

alleging facts that do not support a permissible claim for relief. See Clear Lake 

City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex. App. 

Houston 1st Dist. Mar. 11, 2010) (plaintiff satisfies section 271.153(a)(1) by 

alleging facts to support its claim that there is a balance due and owing under the 

contract), citing City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d 

739, 744 (Tex. App.--Houston [1st Dist.] 2008, pet. denied) (“Section 271.153 

does not retract the privilege granted in Section 271.152 to adjudicate the claim for 

breach, if a plaintiff alleges facts to support such a claim and seeks recovery 

only of damages to the extent allowed.”) (emphasis supplied).

Courts require clear immunity waivers because of the heavy presumption in 

favor of immunity. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). 
21

So heavy is this presumption that special rules of construction apply to statutes that 

are asserted to be waivers of immunity. State v. Oakley, 227 S.W.3d 58, 62 (Tex. 

2007) (quoting TEX. GOV'T CODE ANN. § 311.034 (West 2005 & Supp. 2009). 

That is, no statute should be construed to waive immunity unless there is no doubt 

that it was the Legislature’s intent to do so. Wichita Falls State Hosp. v. Taylor, 

106 S.W.3d 692, 701 (Tex. 2003) (court requires Legislature to express intent to 

waive immunity “beyond doubt.”). A statement is unambiguous if it is not subject 

to more than one interpretation. Because waivers must be strictly construed, 

immunity is waived only to the extent a claim falls clearly within the parameters 

set forth by the Legislature. See id.

This principle applies with equal force to a party’s request for relief. Tooke 

at 346 (plaintiff’s claim for damages on garbage collection contract was not within 

limitations set forth in § 271.153 causing court to conclude immunity from suit had 

not been waived). Specific performance and injunctive relief are clearly 

unavailable as a remedies because the Development Agreement (CR:34-52) does 

not fit within the limited waiver of immunity for specific performance and 

injunction authorized by the Legislature. TEX. LOC. GOV’T CODE ANN. §271.153(c) 

(Vernon) (“Actual damages, specific performance, or injunctive relief may be 

granted in an adjudication brought against a local governmental entity for breach 
22

of a contract described by Section 271.151(2)(B).”); TEX. LOC. GOV’T CODE ANN. 

271.151(2)(b) (West) (“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.”). The Legislature added 

this additional remedy for the purchase of reclaimed water in 2013. Acts 2013, 

83rd Leg., ch. 1138 (H.B. 3511), § 3, effective June 14, 2013. Certainly, had the 

Legislature intended to make specific performance and injunctive relief available 

for all contract claims subject to this subchapter, it could have easily made that 

intent clear, but when it amended the Code, it specifically limited these remedies to 

only one kind of contract. TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon).

By contrast, when the Legislature intends to waive immunity and allow 

equitable relief against a governmental entity, it has expressly said so in other 

statutory immunity waivers. See, e.g., City of Round Rock v. Whiteaker, 241 

S.W.3d 609, 629 (Tex. App.-Austin 2007, pet. denied) (“In such appeals, ‘[t]he 

district court may grant the appropriate legal or equitable relief necessary to carry 

out the purposes of this chapter,’ which ‘may include reinstatement or promotion 

with back pay if an order of suspension, dismissal or demotion is set aside.’ Id. § 

143.015(b).”) citing LOC. GOV’T CODE ANN. §143.015(b) (Vernon). Based on the 

forgoing authority, there is only one reasonable conclusion - the Legislature has 
23

spoken with unmistakable clarity and specific performance and injunctive relief are

not available remedies for general “goods and services” breach of contract claims 

brought under Chapter 271.

Premas’ claim for breach of contract against the City under Chapter 271 

should not be allowed to proceed because it is precluded from obtaining the relief 

that it seeks under this limited immunity waiver. Forcing a governmental entity to 

expend the time and resources litigating a claim where it is immune from the relief 

a litigant seeks, regardless of whether the contract is one for “goods and services,”

undermines the public policy of immunity - “[s]ubjecting the government to 

liability may hamper governmental functions by shifting tax resources away from 

their intended purposes toward defending lawsuits and paying judgments.” IT–

Davy at 854. Therefore, the City is immune from claims for specific performance 

of a contract and injunctive relief unless the Legislature waives that immunity, and 

it has not done so for contracts like the Development Agreement (CR:34-52). Id. 

at 855. 

Cases like City of North Richland Hills v. Home Town Urban Partners, Ltd. 

are distinguishable from the instant matter because in addition to a claim for 

specific performance, for which the city claimed immunity, the developer had also 

asserted a claim for permissible money damages, thereby invoking the trial court’s 
24

jurisdiction. Home Town Urban Partners, Ltd. at 910. Likewise, City of Mesquite 

v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied) 

is also distinguishable for the same reasons. Although the city claimed that the 

contractor’s pleadings failed to invoke the trial court’s jurisdiction because its 

alleged damages were not authorized by Chapter 271, the Dallas Court of Appeals 

disagreed. Id. at 448. It held that it could not determine on the record before it that 

the contractor’s money damage claim was excluded under the statute. Id. It 

contrasted its holding with that of Tooke, noting that the supreme court was able to 

determine that the claimant had only asserted a claim for lost profits, which were 

clearly excluded by Chapter 271. Id.

Premas asserts no claim for money damages owing under the Development 

Agreement, but rather only a claim for specific performance and/or an injunction 

compelling the City to perform (CR:26-28), the effect of which would be the same 

as specific performance. This simplifies the analysis, allowing the Court to 

conclude that Premas has failed to invoke the trial court’s jurisdiction under 

Chapter 271. See id. Based on the foregoing, Premas failed to invoke the trial 

court’s jurisdiction and the trial court committed reversible error when it denied 

the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully 

requests that the Court reverse the trial court and render judgment on behalf of the 

City on this ground, dismissing this claim against the City. 
25

Issue Three – Appellee has not asserted a valid waiver of 

governmental immunity based on Appellants’ conduct; therefore, 

Appellee’s pleading affirmatively negates the trial court’s jurisdiction 

over Appellants on this ground.

Although the waiver-by-conduct issue has largely been addressed in 

Appellants’ first issue, which Appellants incorporate herein by reference, as if 

copied verbatim, Premas separately asserts that Texas law recognizes that a city 

can waive immunity to suit through “misleading conduct.” CR:28. In support of 

this proposition, Premas cites Texas S. Univ. v. State St. Bank & Trust Co., 212 

S.W.3d 893, 908 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) for the 

proposition that the City waived its immunity by executing a contract that included 

an immunity waiver provision. CR:23, 46-47. 

Premas’ circular reasoning does not support a waiver in light of clear 

precedent, which provides that contractual provisions purporting to waive 

immunity are invalid. See City of Willow Park, Texas v. E.S., 424 S.W.3d at 709. 

Indeed, this Court’s own precedent, cited by the Fort Worth Court of Appeals, 

supports the proposition that the hypothetical “waiver-by-conduct” scenarios 

envisioned by Justice Hecht’s concurring opinion in Federal Sign have never been 

adopted by the Texas Supreme Court. See id., (citing Tex. Adjutant Gen.'s Office 

v. Ngakoue, 408 S.W.3d 350, 353 (Tex.2013) (reiterating that it is the legislature's 

“sole province” to waive or abrogate sovereign immunity); and Bacon v. Tex. 
26

Historical Comm'n, 411 S.W.3d 161, 172 (Tex.App.-Austin 2013, no pet.) 

(explaining that the contemporary rationale for governmental immunity is that the 

legislature “is best suited to make the policy-laden judgments as to if and how ... 

government resources should be expended”)). Indeed, every time the Texas 

Supreme Court has been given the opportunity to give life to Federal Sign’s 

hypothetical waiver-by-conduct scenarios, it has soundly rejected the proposition. 

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011) 

(rejecting invitation to recognize a waiver-by-conduct exception in a breach-ofcontract suit against a governmental entity). 

Recently, this Court discussed the waiver-by-conduct issue again and 

explained that if it “has any current viability, it has lived on within the rubric not of 

whether sovereign or governmental immunity has been waived, per se, but in the 

threshold determination of whether immunity applies in the first place.” City of 

New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.—Austin 

2014, no pet.). Carowest stands for the principle that the kind of conduct that 

implicates whether immunity applies in the first place is, for example, a claim for 

affirmative relief by the governmental entity that causes it to leave its sphere of 

immunity and consider whether a plaintiff’s offsetting claim for monetary relief is 

germane to that affirmative request for relief. Id. at 523. Carowest is instructive 

for its inapplicability to the facts alleged by Premas. Premas asserts no claims for 
27

monetary relief and this appellate record contains no evidence that the City has 

asserted an affirmative claim for relief in response. Thus, the City has not left its 

“sphere of immunity” and waiver-by-conduct is not implicated. See id.

Moreover, if the inclusion of an immunity waiver provision in a contract 

were sufficient to implicate the hypothetical “waiver-by-conduct” scenario 

implicated by dictum in Federal Sign, then the supreme court’s refusal to address 

this issue and overturn City of Willow Park, Texas v. E.S. is somewhat 

inexplicable. Instead, the supreme court denied review on October 24, 2014. City 

of Willow Park, Texas v. E.S., 424 S.W.3d 702. Based on the foregoing, Premas

failed to invoke the trial court’s jurisdiction and the trial court committed 

reversible error when it denied the City’s plea to the jurisdiction on this ground. 

CR:329. The City respectfully requests that the Court reverse the trial court and 

render judgment on behalf of the City on this ground, dismissing this claim against 

the City. 

Issue Four – Appellee has not asserted a valid waiver of 

governmental immunity based on a proprietary function; therefore, 

Appellee’s pleading affirmatively negates the trial court’s jurisdiction 

over Appellants on this ground. 

Premas asserts that the City was engaging in a proprietary function by virtue 

of entering into the Development Agreement; therefore, it is not entitled to assert 

immunity, or so Premas contends. CR:28. This Court has addressed this issue and 
28

concluded that the governmental-proprietary function dichotomy applies to 

contracts and that Chapter 271 of the Local Government Code does not statutorily 

abrogate that distinction. See City of Georgetown v. Lower Colorado River Auth., 

413 S.W.3d 803, 812-14 (Tex. App.—Austin 2013), reh'g overruled (Nov. 13, 

2013), review dismissed (May 30, 2014). Since the dichotomy applies, the 

question is whether the Development Agreement contemplates governmental or 

proprietary functions.

This Court explained the differences between governmental and proprietary 

functions - “a [city performs a] governmental function when it acts ‘as the agent 

of the State in furtherance of general law for the interest of the public at large,’”

whereas a proprietary function is “‘performed by a city, in its discretion, primarily 

for the benefit of those within the corporate limits of the municipality.’” Id. 

(internal citations omitted). The Court also recognized the Legislature’s 

constitutional authority to classify governmental and proprietary functions, noting 

that the Texas Tort Claims Act provides a non-exclusive list of functions so 

defined. Id. at 809. 

More recently, this Court also applied the governmental-proprietary 

distinction to a contract and had to determine whether the activities contemplated 

by the contract were governmental or proprietary. Carowest at 519-20. In 

concluding that they were governmental, this Court took note of various 
29

governmental functions defined by the Tort Claims Act and concluded that the 

contract fit within those activities. Id. Here, the Development Agreement not only 

indicates that a significant portion of the applicable property is in the City’s 

extraterritorial jurisdiction, but also that the purpose of the contract is to control the 

development standards of the property, including “the uniform review and 

approval of plats and development permits for the Project,” and that the authority 

for entering into the agreement exists under Chapters 212 and 245 of the Local 

Government Code (platting and vested rights, respectively). CR:34-35. 

Among the governmental functions defined by the Tort Claims Act, the 

Legislature has defined zoning, planning, and plat approval as a governmental 

function. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (a) (29) (West). 

Because the Legislature has deemed these activities governmental functions, and 

because the Development Agreement was entered into for the purpose of 

controlling development standards, including platting and permit review, it clearly 

contemplates governmental functions only the City could perform. CR:34-35. 

Moreover, because a significant portion of the property was in the City’s 

extraterritorial jurisdiction, the Development Agreement could not be primarily for 

the benefit of those within the corporate limits of the City. See City of Georgetown 

v. Lower Colorado River Auth. at 812-14. Based on the foregoing, Premas failed 

to invoke the trial court’s jurisdiction and the trial court committed reversible error 
30

when it denied the City’s plea to the jurisdiction on this ground. CR:329. The 

City respectfully requests that the Court reverse the trial court and render judgment 

on behalf of the City on this ground, dismissing this claim against the City. 

Issue Five – Appellee has not asserted a valid waiver of governmental 

immunity based on the Uniform Declaratory Judgments Act because it 

is incidental to and redundant of a breach of contract claim and a 

claim brought pursuant to Chapter 245 of the Local Government Code

and it has; therefore, Appellee’s pleadings affirmatively negate the 

trial court’s jurisdiction over Appellants on this ground.

When governmental immunity applies, governmental entities cannot be sued 

without legislative consent, “and then only in the manner indicated by that 

consent.” City of Georgetown v. Lower Colorado River Auth. at 808 (internal 

citation omitted). Although a governmental entity necessarily waives immunity 

from liability when it enters a contract, unless the governmental entity’s immunity 

from suit has been waived for the breach of contract claim, the suit may not 

proceed. Id. Premas asserts that the Uniform Declaratory Judgment Act 

(“UDJA”) waives the City’s immunity for a declaration that the Development 

Agreement is in effect. CR:20-21. The UDJA is also the statutory basis of 

Premas’ claim for attorneys’ fees. CR:21. Premas’ reliance on the UDJA as a 

waiver of the City’s immunity is misplaced. 

The Uniform Declaratory Judgment Act (“UDJA”) provides a limited waiver 

of a governmental entity’s immunity from suit. TEX. CIV. PRAC. & REM.CODE 
31

ANN. § 37.006(b) (Vernon); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 

(Tex.2009). This waiver is limited to declarations construing an ordinance or a 

statute. Heinrich, 284 S.W.3d at 373 n. 6. The UDJA does not, however, waive a 

city’s immunity from suit by permitting a party to recast a breach of contract claim 

as a declaratory judgment. Home Town Urban Partners, Ltd., 340 S.W.3d at 911 

(“A party may not seek a declaratory judgment ‘only in an attempt to have the trial 

court decide its breach-of-contract claim.’”) (internal citation omitted). Premas 

seeks the following declarations (among others): that the Development Agreement 

is valid and enforceable; that Premas has performed its obligations under the 

Agreement and is not in breach; that the City is in breach of the Agreement; and an 

order compelling the City to specifically perform its obligations under the 

Development Agreement. CR:20-21.

Compare that to Premas’ breach of contract allegations where Premas 

alleges: that the Development Agreement requires the City to accept development 

applications; that Premas is not in breach of the Development Agreement; that the 

City is in breach of the Agreement; and temporary and permanent injunctive relief 

in the form of an order for the City to specifically perform its obligations under the 

Development Agreement. CR:19-20.

There is “but one route to the courthouse” for a breach of contract claim 

against a governmental entity in a breach of contract claim (IT-Davy at 860), and 
32

that route is a clear and unambiguous waiver of immunity, “and then only in the 

manner indicated by that consent.” City of Georgetown v. Lower Colorado River 

Auth. at 808 (internal citation omitted). In its previous issues, Appellants have 

shown that Premas has failed to assert a valid waiver of immunity for Premas’ 

berach of contract claim. Likewise, the UDJA also fails to waive the City’s 

immunity under the facts pled in Premas’ original petition, and Premas cannot 

recast its breach of contract claim as a declaratory judgment. See id. Because 

Premas’ UDJA claim is asking for a declaration of rights not under a municipal 

ordinance, but rather a contract, Premas failed to invoke the trial court’s 

jurisdiction under the UDJA. See Multi-County Water Supply Corp. v. City of 

Hamilton, 321 S.W.3d 905, 908 (Tex. App.—Houston [14th Dist.] 2010, pet. 

denied) (pleadings contain no request to construe a statute or ordinance; therefore, 

jurisdiction under UDJA lacking). 

Premas’ UDJA claim is also incidental to and redundant of its claim against 

Cagle and Yantis in their official capacities brought under Chapter 245 of the 

Local Government Code (CR:29) for injunctive relief, mandamus and/or a 

declaration related to a “permit.” TEX. LOC. GOV'T CODE ANN. § 245.006 (a) 

(West) (“This chapter may be enforced only through mandamus or declaratory or 

injunctive relief.”). This Court has on multiple occasions concluded that where a 

claim under the UDJA is redundant or duplicative of another claim that will 
33

“resolve the exact issues at hand,” jurisdiction under the UDJA will not lie. See, 

e.g., Texas Mun. Power Agency v. Pub. Util. Com'n, 260 S.W.3d 647, 650 (Tex. 

App.—Austin 2008, no pet.); Texas State Bd. of Plumbing Examiners v. Associated 

Plumbing-Heating-Cooling Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex. 

App.—Austin 2000, pet. abated) (when specific statutory scheme addresses 

controversy, UDJA does not apply because such relief would be redundant). In an 

unreported case, the San Antonio Court of Appeals, citing this Court’s decision in 

Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling 

Contractors of Texas, Inc., applied this principle to a Chapter 245 claim. See City 

of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL 

631484, at *1 (Tex. App.—San Antonio Feb. 19, 2014), review denied (May 1, 

2015) (unreported case). Based on the foregoing, Premas failed to invoke the trial 

court’s jurisdiction and the trial court committed reversible error when it denied 

the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully 

requests that the Court reverse the trial court and render judgment on behalf of the 

City on this ground, dismissing this claim against the City. 

Issue Six – Appellee has asserted a claim for declaratory relief5and a 

writ of mandamus against Appellants the City, and Cagle and Yantis 

 

5

This is distinct from Premas’ claim under the UDJA, which cannot proceed as discussed 

in Appellants’ Issue Five. Premas has also asserted a waiver of immunity under Chapter 

245 of the Local Government Code. CR:29. Construing Premas’ pleadings (very) 

liberally, because § 245.006 provides that the only relief available under this waiver is for 

injunctive relief, mandamus and a declaratory judgment, for purposes of this appeal, out 
34

in their individual capacities, but such relief is only available against 

officials in their official capacities for purely ministerial acts; 

therefore, Appellee’s pleading affirmatively negates the trial court’s 

jurisdiction over Appellants the City, and Cagle and Yantis in their 

individual capacities, and all Appellants to the extent it asks them to 

perform non-ministerial acts.

Premas has sued a governmental entity, and governmental officials in both 

their official and individual capacities, and seeks declaratory relief against the City 

and a writ of mandamus against all Appellants. CR:21-23. That is, Premas has 

asserted that government officials have failed to perform what it contends is a 

purely ministerial duty – review (and approval) of land-use applications that 

Premas contends enjoy Local Government Code Chapter 245 vesting protections. 

CR:30-31. At the same time that the trial court denied Appellants’ plea to the 

jurisdiction (CR:329), the trial court also issued an order granting a writ of 

mandamus, compelling Cagle and Yantis in their official capacities to accept and 

review (but not approve) applications tendered by Premas on or about December 

15, 2014. CR:330-31. 

Appellants do not challenge the order granting a writ of mandamus as it 

applies to Cagle and Yantis in their official capacities in this appeal because it did 

 

of an abundance of caution, Appellants will assume, without conceding, that Premas has 

asserted a claim for declaratory relief against the City under Chapter 245 because its 

prayer does not limit the request for a declaration to one issued pursuant to the UDJA 

(CR:30). TEX. LOC. GOV’T CODE ANN. § 245.006 (West). Therefore, Appellants will 

address the jurisdictional defect this issue raises if Premas’ pleading is so construed. 

CR:29-30. 
35

not order them to engage in a non-ministerial act.

6

 CR:330-31. Premas’ pleadings, 

however, go beyond that and still ask the trial court to order them to approve 

applications submitted pursuant to the Development Agreement. CR:23. For the 

purposes of this appeal, Appellants, the City and Cagle and Yantis in their 

individual capacities, challenge the trial court’s denial of their plea to the 

jurisdiction on the ground that it did not have jurisdiction over the City or Cagle 

and Yantis in their individual capacities for Premas’ request a declaratory 

judgment or a writ of mandamus, and for the approval of non-ministerial acts. 

CR:21-23. 

In Heinrich, the Texas Supreme Court clarified that in suits for a declaratory 

judgment that a statute is not being followed (e.g. Chapter 245 protections), 

governmental entities themselves, as opposed to officers in their official capacities, 

remain immune from suit. Heinrich at 372. A suit against a government official in 

his official capacity imposes liability on the governmental entity, but cannot be 

brought against the entity itself. Id. Therefore, to the extent that Premas’ request 

for declaratory relief is asserted under Chapter 245 of the Local Government Code 

(CR:30), the City is not a proper party and the trial court committed reversible 

error by denying its plea to the jurisdiction on this ground. Id. Likewise, to the 

 

6 Because this is an interlocutory appeal under Civil Practice & Remedies Code § 51.014 

(a) (8), all proceedings, including the trial court’s order granting the writ of mandamus 

(CR:330-31), are stayed in the trial court pending resolution of this appeal. TEX. CIV.

PRAC. & REM. CODE ANN. §§ 51.014 (b), (c) (West). 
36

extent that Premas’ request for declaratory relief is asserted under Chapter 245 

against Cagle and Yantis in their individual capacities, they are not proper parties 

either and the trial court committed reversible error by denying their plea to the 

jurisdiction on this ground. Id. at 373 n.7, citing Alden v. Maine, 527 U.S. 706,

757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (Judgments against state officials in 

their individual capacities will not bind the state). 

Premas’ pleadings suffer from the same defects as it relates to its claim for a 

writ of mandamus against these Appellants. CR:21-23. While Local Government 

Code Chapter 245 clearly and unambiguously waives governmental immunity for 

claims that a permit enjoys vested rights, Chapter 245 does not purport to change 

the underlying requirements necessary to obtain mandamus relief. Mandamus may 

lie to compel a government official to perform a clearly mandatory, ministerial 

statutory duty without implicating governmental immunity. City of Round Rock v. 

Whiteaker, 241 S.W.3d 609, 628 (Tex. App.—Austin 2007, pet. denied) (party 

may bring suit to remedy statutory violation or prevent its occurrence; such suit is 

not against State requiring legislative or statutory authorization); Janek v. 

Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014, 

no pet.) (mandamus will issue to compel a public official to perform ministerial 

act). Thus, Premas’ claim for mandamus against “all Defendants” is clearly 

defective and the trial court was without jurisdiction over the City or Cagle and 
37

Yantis in their individual capacities and should have granted their plea to the 

jurisdiction on this ground. Janek at 101, citing Heinrich at 372.

Finally, to the extent that Premas’ pleadings ask the trial court to issue a writ 

of mandamus to Cagle and Yantis in their official capacities to approve future 

permit applications, such a request clearly goes beyond the permissible scope of 

mandamus unless such approval is a purely ministerial act. Anderson v. City of 

Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (writ of mandamus will not issue 

to compel public official to perform act involving exercise of discretion). First, 

assuming Premas’ allegation that it has not breached the Development Agreement 

is true, as the Court must, Premas’ pleadings fail to allege facts showing that the 

approval of a particular application involves the exercise of no discretion. Id.

Second, the Development Agreement provides that the project “may be approved 

and constructed in one or more phases.” CR:37. It also provides that in the event 

of Premas’ failure to obtain staff approval on an application, Premas can appeal 

that decision to the City Council and that such disputes will be resolved by 

amendments to the Development Agreement. CR:43. It also contemplates that the 

Agreement shall serve as “guidance” for the review and approval of additional 

approvals in the future. CR:43. Nothing in the Development Agreement permits 

Premas to submit applications that do not comply with the applicable ordinances 

and rules in effect at the time the Development Agreement was executed. CR:34-
38

52. Therefore, Premas’ pleading fails to invoke the trial court’s jurisdiction to the 

extent it seeks a writ of mandamus for the approval of undefined “applications for 

preliminary plats, final plats, and site development permits,” (CR:22) in the 

absence of specific allegations that approval of a particular application involves no 

discretion. Id. 

For these reasons, Premas failed to invoke the trial court’s jurisdiction and 

the trial court committed reversible error when it denied Appellants’ plea to the 

jurisdiction on these grounds. CR:329. Appellants respectfully request that the 

Court reverse the trial court and render judgment on behalf of Appellants on these 

grounds, dismissing these claims against the Appellants. 

Issue Seven – Appellee has not asserted a valid waiver of immunity for an 

award of attorneys’ fees against Appellants because their claims are not 

cognizable under the relevant statute, or the statute itself does not provide 

for an award of attorneys’ fees; therefore, Appellants’ pleading affirmatively 

negates the trial court’s jurisdiction to award attorneys’ fees to Appellees. 

Premas’ claim for attorney’s fees under the UDJA should have been 

dismissed by the trial court for lack of jurisdiction. While Chapter 245 of the 

Local Government Code recognizes a developer’s vested right to develop under the 

land use regulations then in effect at the time the first permit application was filed, 

it provides that the chapter may only be enforced through “mandamus or 

declaratory or injunctive relief.” TEX. LOC. GOV’T CODE ANN. § 245.006 

(Vernon). It does not provide for an award of attorneys’ fees and because waivers 
39

of immunity are strictly construed, such a waiver cannot be read into Chapter 245. 

See, City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006). Premas’ claim, 

if any, arises solely under Chapter 245, which waives governmental immunity 

under a very narrow set of circumstances and expressly sets forth the available 

relief, which does not include a waiver of immunity for attorney’s fees. 

The San Antonio Court of Appeals, relying on opinions of the Texas 

Supreme Court and the Austin Court of Appeals, recently concluded that when the 

recovery of attorneys’ fees against a governmental entity is incidental to and 

redundant of the relief provided by Chapter 245, a claim for attorneys’ fees under 

the UDJA should be dismissed when it is used solely as a vehicle to recover fees. 

See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 

WL 631484, at *6 (Tex. App.—San Antonio Feb. 19, 2014, pet. filed) (unreported 

case), citing John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 

S.W.3d 268, 289 (Tex.2002), and Associated Plumbing–Heating–Cooling 

Contractors of Tex., Inc., 31 S.W.3d at 753. This Court has reiterated that premise 

more recently. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex. 

App.—Austin 2011, no pet.). Moreover, because the UDJA only waives a city’s 

immunity for the declaration of rights related to statutes and ordinances, Premas’ 

claim is for a declaration of rights as to a contract. CR:6-33. Therefore, the City’s 

immunity for a claim for attorneys’ fees is not waived by the UDJA under the facts 
40

pled by Premas. See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-

00623-CV, 2014 WL 631484, at *6. 

Next, out of an abundance of caution, although Premas does not assert a 

claim for attorneys’ fees under Chapter 271 in its pleadings (CR:6-33), it does 

assert Chapter 271 as an applicable waiver of the City’s immunity for the 

Development Agreement. Appellants adopt and incorporate the argument and 

authority discussed in Issue Two as if copied verbatim herein, which showed why 

Chapter 271 is not a valid waiver of immunity under the facts as pled by Premas. 

If Premas’ pleadings, liberally construed, can be read to assert a claim for 

attorneys’ fees under Chapter 271, the pleadings fail to vest the trial court with 

jurisdiction because Premas has not asserted a viable claim for relief for which 

immunity has been waived. Because Chapter 271 is not a valid waiver of the 

City’s immunity, Premas cannot rely on it as a waiver of the City’s immunity on 

attorneys’ fees. 

PRAYER

Based on the foregoing, Appellants pray that the Court reverse the trial 

court’s order denying Appellants plea to the jurisdiction and render judgment on 

behalf of Appellants on the grounds set forth in this appeal. 
41

Respectfully submitted,

Knight & Partners

223 W. Anderson, Ln., Suite A-105

Austin, Texas 78752

512-323-5778 Telephone

512-323-5773 Facsimile

/s/ Bradford E. Bullock

Bradford E. Bullock

State Bar No. 00793423

bradford@cityattorneytexas.com

CERTIFICATE OF COMPLIANCE

In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the 

Appellant’s Brief contains 9,209 words, which does not include the caption, 

identity of parties and counsel, statement regarding oral argument, table contents, 

index of authorities, statement of issues presented, signature, proof of service, 

certificate of compliance, and appendix.

/s/ Bradford E. Bullock

Bradford E. Bullock
42

CERTIFICATE OF SERVICE

I certify that a copy of Appellant’s Brief was served on Appellees through 

counsel of record in accordance with the Texas Rules of Appellate Procedure as 

indicated below on the 20th day of July 2015, addressed to:

Howry, Breen & Herman LLP via Email

1900 Pear Street

Austin, Texas 78705-5408

(512) 474-7300 Office

(512) 474-8557 Facsimile

Sean E. Breen

State Bar No. 0078715

sbreen@howrybreen.com

Randy R. Howry

State Bar No. 10121690

rhowry@howrybreen.com

James Hatchitt

State Bar No. 24072478

jhatchitt@howrybreen.com

/s/ Bradford E. Bullock

Bradford E. Bullock
43

No. 03-15-00377-CV

IN THE THIRD COURT OF APPEALS

at AUSTIN, TEXAS

__________________________________________________________________

CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN 

HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF 

LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS 

OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND 

PLANNING DIRECTOR FOR THE CITY OF LEANDER

Appellants

v.

PREMAS GLOBAL LEANDER I, LLC

Appellee

__________________________________________________________________

Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court, 

Williamson County, Texas

__________________________________________________________________

APPELLANTS’ APPENDIX

__________________________________________________________________
44

APPENDIX TABLE OF CONTENTS

ORDER DENYING DEFENDANTS’ PLEA TO THE 

JURISDICTION........................................................... ...........................45