Opinion issued August 13, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00596-CV

———————————

SATTERFIELD & PONTIKES CONSTRUCTION, INC., Appellant

V.

TEXAS SOUTHERN UNIVERSITY, JIM MCSHAN, AND GREG 

WILLIAMS, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 2014-12277

O P I N I O N

Appellant, Satterfield & Pontikes Construction, Inc. (“S&P”), sued 

appellees, Texas Southern University (“TSU”), Jim McShan, and Greg Williams, 

for alleged inconsistencies in the administration of a competitive bidding process. 

The trial court granted TSU’s plea to the jurisdiction and dismissed all of S&P’s
2

claims against TSU, McShan, and Williams. In two issues, S&P argues that the 

trial court erred (1) in granting TSU’s plea to the jurisdiction on immunity grounds 

and (2) in dismissing its claims against McShan and Williams in their official 

capacities.

We affirm.

Background

In January 2014, TSU solicited bids for the construction of a student housing 

facility by issuing a Request for Competitive Sealed Proposals pursuant to Texas 

Education Code section 51.783. Five companies, including S&P and PepperLawson Horizon International Group (“Pepper-Lawson”) provided sealed bids. 

After engaging in post-proposal discussions with Pepper-Lawson, TSU accepted 

Pepper-Lawson’s bid and executed a construction contract with that firm.

S&P sent a protest letter to TSU complaining of deficiencies in TSU’s 

administration of the bidding process, and it attempted to obtain documents related 

to the bidding process from TSU. However, TSU proceeded with construction 

using Pepper-Lawson as its contractor. 

On March 7, 2014, S&P filed suit against TSU, Jim McShan, who is TSU’s 

Vice President of Finance and CFO, and Greg Williams, who is TSU’s Executive 

Director of Procurement Services. S&P alleged that TSU, McShan, and Williams, 

acting in their official capacities, violated various sections of the Government 
3

Code and Education Code governing the solicitation and acceptance of competitive 

bids for construction projects. S&P asked the trial court to enter a declaratory 

judgment declaring that the contract between TSU and Pepper-Lawson was void 

and to order TSU to award the project to S&P. It also sought a temporary and 

permanent injunction preventing TSU from proceeding with construction until the 

project could be properly bid and awarded.

The trial court conducted hearings on S&P’s application for a temporary 

injunction, but the court did not grant a temporary injunction, and work on the 

construction project proceeded.

TSU subsequently filed an amended answer, asserting sovereign immunity 

as an affirmative defense and alleging that S&P lacked standing to pursue its 

claims. No amended answer was filed for McShan or Williams. TSU then filed a 

plea to the jurisdiction, asserting that S&P’s claims were barred by sovereign 

immunity, that S&P lacked standing to bring them, and that S&P failed to state a 

cause of action. McShan and Williams did not join TSU’s plea to the jurisdiction. 

S&P responded to the plea to the jurisdiction, arguing that TSU’s sovereign 

immunity was waived by Education Code sections 51.783(f) and 51.778(a) and 

that it had standing to pursue its claims.

The trial court held a hearing and granted TSU’s plea to the jurisdiction, 

hodling that Education Code sections 51.783(f) and 51.778(a) do not constitute a 
4

waiver of sovereign immunity. The trial court order dismissed all claims against 

all parties. This appeal followed.

TSU’s Plea to the Jurisdiction

In its first issue, S&P argues that the trial court erred in granting TSU’s plea 

to the jurisdiction. In this regard, it makes three arguments. First, S&P argues that 

TSU “did not meet its burden to prove that sovereign immunity bars S&P’s 

claims.” It asserts that TSU, as the defendant, “carries the initial burden to meet 

the summary-judgment proof standard for its assertion that the trial court lacks 

jurisdiction.” Second, S&P argues that TSU never established that governmental 

immunity applies to this case because S&P is seeking to void a contract between a 

state entity and a third party, rather than seeking to uphold a contract between itself 

and a state entity, and it contends that governmental entities are not immune to 

suits, like its own, that seek to void a contract, because such suits do not seek to 

control state action. Third, S&P argues that Education Code sections 51.778 and 

51.783 waived TSU’s governmental immunity. These arguments, however, are not 

supported by the law governing the assertion of governmental immunity. 

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter 

jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 

(Tex. 2000). Subject-matter jurisdiction is essential to the authority of a court to 
5

decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 

852 S.W.2d 440, 443–44 (Tex. 1993). The plaintiff has the burden to allege facts 

affirmatively demonstrating that the trial court has subject-matter jurisdiction. Id.

at 446; see also Weir Bros., Inc. v. Longview Econ. Dev. Corp., 373 S.W.3d 841, 

847 (Tex. App.—Dallas 2012, no pet.) (“[The plaintiff] had the burden to plead 

facts that affirmatively demonstrate a waiver of governmental immunity and that 

the court has subject matter jurisdiction.”).

We review a trial court’s ruling on a plea to the jurisdiction de novo. See 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In 

reviewing the ruling, an appellate court must determine whether facts have been 

alleged that affirmatively demonstrate jurisdiction in the trial court. City of Waco 

v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008).

When reviewing a trial court’s ruling on a jurisdictional plea, “we first look 

to the pleadings to determine if jurisdiction is proper, construing them liberally in 

favor of the plaintiffs and looking to the pleader’s intent,” and “we consider 

relevant evidence submitted by the parties when necessary to resolve the 

jurisdictional issues raised.” City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 

(Tex. 2009). We do not adjudicate the substance of the case but instead determine 

whether a court has the power to reach the merits of the claim. Bland Indep. Sch. 
6

Dist., 34 S.W.3d at 554; Bd. of Trs. of Galveston Wharves v. O’Rourke, 405 

S.W.3d 228, 233 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

If the pleadings affirmatively negate the existence of jurisdiction, the plea 

may be granted without allowing the plaintiff an opportunity to amend its

pleadings. Miranda, 133 S.W.3d at 227. If the relevant evidence is undisputed or 

fails to raise a fact issue as to jurisdiction, the trial court rules on the plea as a 

matter of law. Id. at 228.

B. Burden of Proof

As a preliminary matter, S&P argues that TSU had the burden of proof in 

showing that S&P’s claims should be dismissed. It is well-established, however,

that a court’s determination of whether it has subject-matter jurisdiction begins 

with the pleadings, and the pleader has the initial burden of alleging facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 

S.W.3d at 226; Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 110 

(Tex. App.—Austin 2007, no pet.). Here, S&P sued TSU, which is undisputedly a 

governmental entity. As such, TSU is entitled to immunity from suit unless S&P,

as the plaintiff, has established either that sovereign immunity does not apply or 

that the State consented to suit. See Tex. Natural Res. Comm’n v. IT-Davy, 74 

S.W.3d 849, 855 (Tex. 2002). 
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C. Dismissal of S&P’s Suit on Immunity Grounds

First, S&P argues that the trial court erred in granting TSU’s plea to the 

jurisdiction on immunity grounds. It argues that TSU is not immune from its suit 

because its suit is not a “suit against the State” that attempts to control a state 

action and that, therefore, would implicate immunity principles. Second, it argues 

that TSU consented to suit. Third, it argues that even if failed to establish a waiver 

of TSU’s immunity from suit, it should be allowed an opportunity amend its 

pleadings. 

1. Applicability of Immunity to “Suit Against the State”

S&P argues that governmental immunity does not apply to its claims. 

“Governmental immunity is comprised of immunity from both suit and liability.” 

City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). “Immunity from 

liability protects entities from judgments while immunity from suit deprives courts 

of jurisdiction over suits against entities unless the Legislature has expressly 

consented.” Id. Sovereign immunity and its counterpart for political subdivisions 

of the State, governmental immunity, exist to protect the State and its political 

subdivisions from lawsuits and liability for money damages. Mission Consol. 

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Reata Constr. Corp.

v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Harris Cnty. v. LunaPrudencio, 294 S.W.3d 690, 696 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 
8

In addition to barring suits for “money damages,” governmental immunity 

protects state entities against suits to “control state action.” IT-Davy, 74 S.W.3d at

855–56; O’Rourke, 405 S.W.3d at 234 (holding that State is immune from suits to 

“control state action,” i.e. when trial court’s judgment would “effectively direct or 

control a government official in the exercise of his or her statutory authority”); 

Tex. Logos, L.P., 241 S.W.3d at 118; see also TEX. CIV. PRAC. & REM. CODE ANN. 

§ 101.056 (Vernon 2011) (providing that waiver of immunity in Texas Tort Claims 

Act does not apply to governmental unit’s exercise of discretionary powers). 

Claims, including those for declaratory judgment, that seek “to establish a 

contract’s validity, to enforce performance under a contract, or to impose 

contractual liabilities are suits against the State” that attempt to “control[] state 

action,” and from which the state is therefore protected from liability by sovereign 

immunity. IT-Davy, 74 S.W.3d at 855–56 (characterizing such claims as form of 

“controlling state action”); Tex. Logos, L.P., 241 S.W.3d at 119 (quoting IT-Davy, 

74 S.W.3d at 855-556). 

Texas courts have also “regarded these immunity principles as . . . barring 

suits to cancel or nullify a contract made for the benefit of the state.” Tex. Logos, 

L.P., 241 S.W.3d at 120 (citing W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 840–

41 (Tex. 1958)); see also Mustang Special Util. Dist. v. Providence Vill., 392 

S.W.3d 311, 317 (Tex. App.—Fort Worth 2012, pet. denied) (rejecting argument 
9

that suit to invalidate contract is not barred by immunity); Tex. S. Univ. v. State St.

Bank & Trust Co., 212 S.W.3d 893, 908–09 (Tex. App.—Houston [1st Dist.] 2007, 

pet. denied) (holding that companies’ request for declaratory judgment on validity 

of contract, including party’s claim seeking declaration that contract was “void and 

unenforceable,” was barred by immunity principles). Finally, the Texas Supreme 

Court has repeatedly held that, absent a legislative waiver, governmental immunity 

bars suits seeking declaratory and injunctive relief against governmental entities, as 

S&P does here. See Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 

2011); City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009); Tex. Logos, 

L.P., 241 S.W.3d at 115–16, 121. 

S&P argues, however, that its suit to invalidate the contract between TSU 

and Pepper-Lawson does not attempt “to control state action” but instead seeks to 

invalidate a contract, and, thus, TSU is not immune from suit. See IT-Davy, 74 

S.W.3d at 855–56. 

S&P relies on Texas Highway Commission v. Texas Association of Steel 

Importers to support its argument. See 372 S.W.2d 525 (Tex. 1963). In that case, 

the Association of Steel Importers sought to invalidate an administrative order of 

the Texas Highway Commission that prohibited the award of contracts to entities 

that used foreign-sourced materials. 372 S.W.2d at 526, 530. The court held that 

the proceeding seeking to nullify the administrative order “cannot be classed as a 
10

suit against the state” because it was a proceeding to declare an agency order void 

as exceeding the agency’s statutory authority, not a suit complaining about a state 

entity’s exercise of its statutory authority to contract. See id. at 530. Here, the 

opposite is the case. S&P has expressly brought suit against a state entity—TSU—

seeking to declare a state-awarded contract invalid, to enjoin its enforcement after 

the fact, and to obtain damages from the state entity that awarded the contract to 

another bidder in the exercise of authority expressly granted the state entity by the 

Texas Education Code.

In Texas Logos, the Austin Court of Appeals analyzed Steel Importers in 

circumstances similar to those of the present case. In Texas Logos, as here, a 

company (Texas Logos) sued a governmental entity (the Texas Department of 

Transportation, or “TxDOT”) seeking a declaratory judgment that the entity had 

exceeded its statutory authority by violating provisions regarding procurement of a 

contract with a third party (Media Choice). 241 S.W.3d at 109, 111–13. As S&P 

does here, Texas Logos equated its claims with the claim in Steel Importers and 

argued that the precedent in Steel Importers compelled a conclusion that Texas 

Logos’ claim against TxDOT was not a “suit against the state” that implicated 

principles of governmental immunity because it did not seek to control state action 

but instead sought to void a contract. Id. at 116, 120.
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The court in Texas Logos distinguished Steel Importers and held that Texas 

Logos’ claim against TxDOT did seek to control state action on a contract and 

therefore did implicate principles of governmental immunity. It cited the supreme 

court’s precedents in W.D. Haden Co. and IT-Davy regarding suits that seek to 

control state action and held that “[s]uits to nullify a contract made for the benefit 

of the state would likewise implicate sovereign immunity principles as currently 

articulated by the Texas Supreme Court.” Id. at 120. The court added, “Even if 

sovereign immunity would not otherwise have barred Texas Logos’s declaratory 

claims if it had alleged ongoing statutory violations in the logo sign procurement 

and sought to make TxDOT comply with these statutes, Texas Logos alleges only 

past statutory violations, the ‘only plausible remedy’ for which is the invalidation 

of the contract. Such a remedy . . . implicates sovereign immunity and bars Texas 

Logos’s UDJA claims challenging the logo sign contract and procurement.” Tex. 

Logos, L.P., 241 S.W.3d at 122–23. 

We conclude, as did the court in Texas Logos, that the reasoning from Steel 

Importers is not applicable here. S&P does not seek to declare an agency order 

void as unauthorized by law. It seeks a declaratory judgment voiding a specific 

contract between TSU, a governmental entity, and a third party, Pepper-Lawson, 

and it seeks a court order enjoining further work on the now-completed project and 

awarding the project to itself. Thus, S&P’s suit ultimately seeks to “nullify a 
12

contract made for the benefit of the state” and “to compel non-performance of 

once-binding contractual obligations,” implicating governmental immunity 

principles. See W.D. Haden, 308 S.W.2d at 841; Providence Vill., 392 S.W.3d at 

317; see also Tex. Logos, L.P., 241 S.W.3d at 119–20 (relying on W.D. Haden and 

IT-Davy in concluding that “[s]uits to nullify a contract made for the benefit of the 

state . . . implicate sovereign immunity principles as currently articulated by the 

Texas Supreme Court”). 

Moreover, as in Texas Logos, S&P has alleged only past violations of the 

competitive bidding provisions in the Education Code on a now-completed 

contract, not the ongoing violations at issue in Steel Importers that would permit a 

remedy under the statute. See 372 S.W.2d at 526, 530; Tex. Logos, L.P., 241 

S.W.3d at 122–23. Thus, the only plausible remedy would be invalidation of the 

contract between TSU and Pepper-Lawson—a remedy implicating principles of 

sovereign immunity. See Tex. Logos, L.P., 241 S.W.3d at 122–23. 

We conclude that, contrary to S&P’s argument, its suit against TSU does 

implicate principles of governmental immunity, and, therefore, as the plaintiff, it 

was required to establish the state’s consent to its suit.

2. Consent to Suit

Regardless of general principles of governmental immunity, “a party may 

establish consent to sue by referencing a legislative statute or a resolution granting 
13

express legislative permission” to sue a governmental entity. Gen. Servs. Comm’n 

v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Legislative consent 

to sue the State must be expressed in “clear and unambiguous language.” Id.

S&P argues that Education Code sections 51.778(a) and 51.783(f) waived 

TSU’s governmental immunity, thereby establishing consent to suit. 

Education Code section 51.778 addresses competitive bidding on contracts 

generally. It provides:

Except as otherwise provided by this subchapter, all contracts for the 

construction or erection of permanent improvements at an institution 

are void unless made after advertising for bids for the contracts in a 

manner prescribed by the institution’s board, receiving sealed 

competitive bids, and awarding of the contract to the lowest 

responsible bidder by the board.

TEX. EDUC. CODE ANN. § 51.778(a) (Vernon 2012). Section 51.778(b) provides 

that if a contract is awarded to someone other than the lowest bidder, the lowest 

bidder “shall be notified of the recommendation for award and shall be allowed an 

opportunity before the award to present evidence” of its responsibility. Id.

§ 51.778(b).

Education Code section 51.783—the specific provision under which TSU 

solicited bids for the construction here—provides the process for selecting 

contractors for construction services through competitive sealed proposals. Id.

§ 51.783 (Vernon 2012). Section 51.783 sets out the method for preparing a 
14

request for competitive sealed proposals, the documents required, and notice 

requirements. Id. 

Section 51.783(f) provides:

The board [responsible for administering the selection process] shall 

receive, publicly open, and read aloud the names of the offerors and, 

if any are required to be stated, all prices stated in each proposal. 

Within 45 days after the date of opening the proposals the board shall 

evaluate and rank each proposal submitted in relation to the published 

selection criteria.

Id. § 51.783(f). This section states that the school’s board “shall select the offeror 

that offers the best value for the institution based on the published selection criteria 

and on its ranking evaluation.” Id. § 51.783(g). It allows the board to negotiate 

with the selected contractor and to “discuss . . . options for a scope or time 

modification and any price change associated with the modification.” Id. Section 

51.783 further provides that “the board is not restricted to considering price alone 

but may consider any other factor stated in the selection criteria” in determining 

“best value” for the institution. Id. § 51.783(g)–(h).

TSU argues that section 51.778, the more general provision, does not apply 

here because its bidding was completed pursuant to section 51.783. However, this 

argument is immaterial as neither section 51.778 nor section 51.783 contains an 

express waiver of governmental immunity from a suit to declare a governmental 

entity’s contract void in “clear and unambiguous language,” and S&P points to no 

such language. See Little-Tex Insulation Co., 39 S.W.3d at 594. Nor does S&P 
15

refer to any other statute that serves to waive TSU’s governmental immunity in this 

case. Thus, S&P has not borne its burden of establishing TSU’s consent to suit on 

S&P’s claim. See id.

3. Opportunity to Amend Pleadings

Finally, S&P argues that, even if we conclude that it did not sufficiently

establish a waiver of TSU’s immunity from suit, it should be allowed an 

opportunity to amend its pleadings. We disagree.

S&P was never awarded a contract that TSU failed to perform; rather, it 

seeks to invalidate a third-party’s contract with TSU based on TSU’s alleged 

failure in the past to conduct the bidding process on the contract properly and to 

award S&P the construction contract in place of Pepper-Lawson in the manner 

S&P argues was required by the Education Code. 

A governmental entity’s exercise of statutory authority, such as the authority 

to take bids and award contracts, is an exercise of the entity’s discretionary powers. 

See O’Rourke, 405 S.W.3d at 234–35 (holding that discretionary act is one that 

requires exercise of “personal deliberation, decision and judgment”); Tex. Logos, 

L.P., 241 S.W.3d at 118 (holding that state entity is immune from suit deriving 

from its exercise of statutory authority to award sign contracts). As discussed 

above, the legislature has not waived immunity for suits that seek to control state 

action by dictating the exercise of discretionary powers, such as that at issue here. 
16

See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 101.056 (Vernon 2011) (providing 

that waiver of immunity in Texas Tort Claims Act does not apply to governmental 

unit’s exercise of discretionary powers); IT-Davy, 74 S.W.3d at 855–56 (holding 

that sovereign immunity protects State from suits to “control state action”); 

O’Rourke, 405 S.W.3d at 234 (holding that State is immune from suits to “control 

state action,” i.e. when trial court’s judgment would “effectively direct or control a 

government official in the exercise of his or her statutory authority”). Nor has 

S&P been able to point to any express waiver of immunity from such a suit.

Moreover, even if S&P could have sued TSU on the contract under a theory 

it did not plead, S&P’s suit for injunctive and declaratory relief seeking to halt

construction under the contract between TSU and Pepper-Lawson and to require 

TSU to repeat the bidding process in compliance with the competitive bidding 

procedures of the Education and Government Codes is long since moot. 

Construction had already begun under TSU’s contract with Pepper-Lawson long 

before the case reached this Court—and indeed, under the terms of the contract 

was to have been completed by the fall of 2014. The trial court denied S&P’s 

motion for injunctive relief halting performance of the construction contract, and 

S&P did not appeal that decision or otherwise pursue its claim for injunctive relief. 

Accordingly, any claim by S&P seeking to require TSU to re-bid the project is now 

moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (holding that 
17

controversy becomes moot when “the issues presented are no longer ‘live’” and 

party loses standing to maintain its claims).

Thus, the pleadings here affirmatively negate the existence of jurisdiction. 

See Miranda, 133 S.W.3d at 238 (holding that plea may be granted without 

allowing plaintiff opportunity to amend his pleadings if pleadings affirmatively 

negate existence of jurisdiction). We conclude that the trial court did not err in 

granting TSU’s plea to the jurisdiction. We overrule S&P’s first issue.

Dismissal of S&P’s Claims against McShan and Williams

In its second issue, S&P argues that the trial court erred in dismissing its 

claims against McShan and Williams.

Generally, public officials sued in their official capacity—as McShan and 

Williams were here—are protected by the same sovereign or governmental 

immunity as the governmental unit they represent. See Tex. A&M Univ. Sys. v. 

Koseoglu, 233 S.W.3d 835, 843–44 (Tex. 2007). We have already held that the 

trial court correctly determined that it lacked jurisdiction to consider the merits of 

S&P’s claims against TSU on governmental immunity grounds. Thus, the trial 

court correctly determined that it lacked jurisdiction over McShan and Williams, 

who were sued in their official capacities. See id. It does not matter that neither 

McShan nor Williams joined TSU’s plea to the jurisdiction nor otherwise moved to 

dismiss the claims against them, as the trial court is obliged to consider its 
18

jurisdiction over claims even if not raised by the parties themselves. See In re 

United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010) (holding that not only 

may issue of subject-matter jurisdiction be raised for first time on appeal by parties 

or court, but also “a court is obliged to ascertain that subject matter jurisdiction 

exists regardless of whether the parties questioned it”).

S&P argues, however, that McShan and Williams’s acts were not merely the 

acts of public officials but were ultra vires acts that are an exception to 

governmental immunity. Under the ultra vires exception, immunity “does not 

preclude prospective injunctive remedies in official-capacity suits against 

government actors who violate statutory or constitutional provisions.” Heinrich, 

284 S.W.3d at 368–69. For a suit to fall within the ultra vires exception to 

governmental immunity, however, the suit “must not complain of a government 

officer’s exercise of discretion, but rather must allege, and ultimately prove, that 

the officer acted without legal authority or failed to perform a purely ministerial 

act.” Id. at 372; O’Rourke, 405 S.W.3d at 234.

S&P cannot establish the ultra vires exception here. S&P cannot 

demonstrate that McShan and Williams acted without legal authority or failed to 

perform a purely ministerial act, rather than discretionary acts, as required for the 

ultra vires exception to apply. See Heinrich, 284 S.W.3d at 372; O’Rourke, 405 

S.W.3d at 234. S&P does not challenge TSU’s authority to solicit competitive bids 
19

or to enter into construction contracts, nor does it allege that McShan and Williams 

were not authorized to conduct the biding process on behalf of TSU. Moreover, as 

the language of Education Code section 51.783 indicates, the determination of 

which bid to accept was not purely ministerial, but involved the exercise of 

discretion. See TEX. EDUC. CODE ANN. § 51.783(g)–(h) (providing that board must 

determine which bid represents “the best value for the institution based on the 

published selection criteria and on [the board’s] ranking evaluation” and that “the 

board is not restricted to considering price alone but may consider any other factor 

stated in the selection criteria” in making its determination); O’Rourke, 405 

S.W.3d at 234 (“A discretionary act is one that requires the exercise of personal 

deliberation, decision and judgment.”); Junemann v. Harris Cnty., 84 S.W.3d 689, 

693 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Actions that involve 

personal deliberation, decision, and judgment are discretionary; actions that require 

obedience to orders or the performance of a duty to which the actor has no choice, 

are ministerial.”).

S&P argues that McShan and Williams did not have discretion to violate 

statutory provisions in implementing the bidding process, but this argument does 

not alter the fact that S&P is complaining about McShan’s and Williams’s exercise 

of their statutory discretion, for which they have immunity. See Junemann, 84 

S.W.3d at 693. Moreover, even if their actions could somehow be characterized as 
20

ministerial and ultra vires, S&P is seeking retrospective relief in that it is asking for 

a declaratory judgment voiding the construction contract between TSU and 

Pepper-Lawson and awarding the construction contract to S&P itself. Any such 

retrospective relief is moot because of the advanced state of the construction on the 

project and is likewise barred by immunity. See O’Rourke, 405 S.W.3d at 236 n.2 

(holding that immunity applies to suits for injunctive relief “seeking imposition of 

an affirmative duty based on a past alleged actionable wrong”).

These deficiencies in S&P’s pleadings cannot be cured by re-pleading. See 

Miranda, 133 S.W.3d at 227. Accordingly, we conclude that the trial court lacked 

subject-matter jurisdiction and did not err in dismissing S&P’s claims against 

McShan and Williams. See O’Rourke, 405 S.W.3d at 236 n.2 (holding that 

immunity applies to suits for injunctive relief “seeking imposition of an affirmative 

duty based on a past alleged actionable wrong”); see also Heinrich, 283 S.W.3d at 

372 (holding that immunity bars suit against state official for performance of 

discretionary act). We overrule S&P’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and Brown.