Supreme Court of Texas

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No. 21-0307

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City of League City, Texas, 

Petitioner,

v.

Jimmy Changas, Inc.,

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

═══════════════════════════════════════

JUSTICE YOUNG, concurring.

It should not be so hard for a citizen of Texas to know the answer 

to the following question: “If I make a contract with a city and it breaches 

the contract, will the courts vindicate my claim?” The response, alas, 

will often boil down to this: We won’t know until six or seven years after 

the breach, at which point the courts will have balanced some factors 

and parsed a statute limited to torts. At that point, either all will be 

well, or else it will be a total loss. “But good luck,” a lawyer might tell a 

client, “and here’s my bill.”

Such a conversation may well have happened in this case many 

years ago when the contractual negotiations were underway—not so 

long ago, but long enough that our leading immunity cases were not even 
2

on the books. Those cases, as the Court today ably explains, require us 

to determine whether a municipality’s challenged action was either 

governmental or proprietary. In making that determination, we are 

supposed to ask (1) whether the classifications listed in § 101.0215(a) of 

the Texas Civil Practice & Remedies Code provide any “guidance,” and 

if not, (2) whether the action otherwise meets the common-law definition 

of “governmental function,” as expounded through the four Wasson

factors. No party has asked us to reassess our prior decisions, and I 

agree with the Court that, under the rather meandering process that 

those precedents compel, League City has failed to show that its contract 

with Jimmy Changas satisfies either inquiry. 

I suspect, however, that the City could not satisfy any reasonable 

standard to immunize itself from Jimmy Changas’ claim. I thus write 

separately because it is not clear to me that we are even asking the right 

questions in this breach-of-contract context. This area of law has long 

bedeviled us, and I do not propose to solve all of it today. Instead, my goal

is to discuss how we got here, propose a way to distinguish between 

governmental and proprietary contracts that would simplify many cases,

and suggest that, in an appropriate future case, it is not too late for us 

to systematically reconsider our precedents. 

I

Many of the cases that the Court cites today were built on 

substantial confusion and fundamental disagreement about the nature 

of immunity and how it relates to breach-of-contract claims. 

Unfortunately, but perhaps predictably, that confusion and disagreement

have grown into an analytical framework derived from two very different 
3

legal standards—one from a statute and the other from common law. I 

doubt the relevance of the former and the correctness of our current 

understanding of the latter. 

A

Start with the first step—the statutory one. There, our current 

practice is to consult the Texas Tort Claims Act to determine whether a 

municipality is entitled to immunity for contract claims. See Tex. Civ. 

Prac. & Rem. Code § 101.0215(a)–(b). 

Why would we do such a thing? Certainly not because the statute 

commands it. To the contrary, we are fully aware that the Act’s “statutory

definitions and designations apply expressly to tort claims,” Wasson Ints.,

Ltd. v. City of Jacksonville (Wasson II), 559 S.W.3d 142, 146 (Tex. 2018), 

“but not for claims for breach of contract,” ante at 6 (emphasis added).

The statute’s tort limitation is just the most obvious of several 

reasons that make it problematic to apply its “governmental functions” 

list in the contract context. I will start there by adding that the statutory

limitation was no accident. Since 1987, our Constitution has expressly 

authorized the legislature to “define for all purposes those functions of a 

municipality that are to be considered governmental and those that are 

proprietary, including reclassifying a function’s classification assigned 

under prior statute or common law.” Tex. Const. art. XI, § 13 (emphasis 

added). Despite that broad “all purposes” authority, the legislature 

cabined its definitions to tort claims that same year. See Act of Sept. 2, 

1987, 70th Leg., 1st C.S., ch. 2, § 3.02, 1987 Tex. Gen. Laws 37, 47–48 

(codified at Tex. Civ. Prac. & Rem. Code § 101.0215(a)).1 

1 I readily accept for this case and in general that our precedent makes 
4

To be clear, when the legislature acts in ways that displace the 

common law—which is typically within its power and something our 

Constitution specifically invites here—the courts’ duty is to follow the 

legislative choice. Indeed, as a general matter, today’s judiciary should 

be extremely cautious about using its common-law authority to innovate 

in areas where the legislature has been particularly active. See 

Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 157–59 (Tex. 2022) 

(Young, J., concurring); Am. Nat’l Ins. Co. v. Arce, __ S.W.3d __, 2023 

WL 3134718, at *17 (Tex. 2023) (Young, J., concurring).

The circumstances before us today, however, are exactly the 

opposite. The legislature had clear authority to displace the common 

law and unambiguously exercised it, but only as to torts. We must credit 

the legislature with acting purposefully, and as a “text-centric Court,” 

Ojo v. Farmers Group, Inc., 356 S.W.3d 421, 441 (Tex. 2011) (Willett, J., 

concurring), I cannot help but think that we should draw a very different 

lesson from the legislature’s choice: that it intended not to displace the 

common law with respect to contract claims against municipalities. The 

legislature could have made the Tort Claims Act list fully applicable in 

any or every context, but instead unambiguously limited it. I would 

the governmental-or-proprietary distinction dispositive. The Court is quite right

that this distinction is longstanding for tort claims. Ante at 7 n.3. But as I note

below, no comparable history undergirds its use in contract claims. We first 

suggested it just seven years ago. See Wasson Ints., Ltd. v. City of Jacksonville, 

489 S.W.3d 427, 439 (Tex. 2016) (“[W]e have never decided whether the 

distinction between governmental and proprietary acts . . . applies to breach-ofcontract claims against municipalities.”). The ink is barely dry. Whether there 

are additional grounds that might justify or require finding that governmental 

immunity does not apply to a governmental unit in the contract context is an 

interesting question that goes beyond the scope of my opinion today. 
5

respect that limitation until the legislature says otherwise. A patient 

should not take a pill with breakfast or lunch when the doctor prescribed 

one at dinner; a court should not expand a law’s scope to an area its text 

expressly refuses to reach. In neither context is more necessarily better. 

A second reason to respect the textual limitation (although, in 

truth, the first should be enough) is that the legislature’s choice to leave 

the common-law process intact in the contract context is quite sound. A 

laundry list of governmental (and thus immunized) functions for tort 

claims—and only tort claims—makes eminently good sense.2 

Tort and contract claims, after all, are fundamentally different. 

Future tort liability is a matter of risk, not certainty. Whether a tort will

happen, how often it will happen, and the consequences of its happening 

cannot truly be known—only feared. Governmental immunity for torts 

removes at least most liability risks for activities and projects that the 

legislature may wish to encourage—like city-funded “parks and zoos,” 

“museums,” “recreational facilities,” “swimming pools,” “parking facilities,”

“firework displays,” Tex. Civ. Prac. & Rem. Code §§ 101.0215(a)(13), (14),

(23), (25), (27), and the like. Cities are more likely to undertake such 

activities if the cost of doing so need not include (or at least may largely 

discount) the uncertain future costs that ordinary tort liability would 

bring. To take a (literal) concrete example: Building a swimming pool is 

2 More specifically, the functions listed in § 101.0215(a), which are 

deemed “governmental,” are brought within the Tort Claims Act, meaning that 

immunity is also waived—if and to the extent the claim can survive the 

gauntlet that the Tort Claims Act itself imposes. See Rattray v. City of 

Brownsville, 662 S.W.3d 860, 865–69 (Tex. 2023) (describing many of the 

manifold procedural and substantive requirements that burden Tort Claims

Act, but not ordinary, litigation). 
6

a positive good for a community, but even responsibly done, the frequency

and consequences of injuries and accidents are unpredictable. A city with

limited resources may reasonably choose not to go forward when it is 

faced with the prospect of sudden, substantial, repeated, and enduring

tort liability. That basis for hesitation, however, should be largely 

obviated by the statutory classification in § 101.0215(a)(23), which 

ensures that damages from a city swimming pool or other recreational 

facility will be imposed only if and to the extent the Tort Claims Act 

itself authorizes it.

Contracts are an entirely different matter. Unlike tort liability, 

contract liability can be more readily foreseen. Opening a swimming 

pool to the public poses a wildly different kind of liability risk than 

entering into a contract to install one. A city can do the latter with far 

more certainty and awareness of the attendant risks and potential 

liability. Indeed, just like any private party, a city can negotiate a 

contract’s terms and conditions up front—and, importantly here, define 

or limit the remedies available to each party in the event of a breach. 

See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (“By entering 

into a contract, a governmental entity . . . voluntarily bind[s] itself like 

any other party to the terms of the agreement . . . .”); Charles Fried, 

Contract as Promise: A Theory of Contractual Obligation 1 (1981) (“The 

promise principle . . . is that principle by which persons may impose on 

themselves obligations where none existed.”). Analyzing a city’s 

entitlement to immunity for contract claims, in other words, is an 

inherently different endeavor than analyzing one based in tort. The 

incentives, mental states, foreseeability, and remedies will often differ. 
7

See, e.g., Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494–95 (Tex. 

1991); Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, 

Inc., 960 S.W.2d 41, 44–45 (Tex. 1998). 

For these reasons, I am not puzzled by the legislature’s express 

limitation of its “governmental-versus-proprietary” list to suits “under 

this chapter”—that is, the Tort Claims Act. Tex. Civ. Prac. & Rem. Code 

§ 101.0215(a). For the same reasons, it is not obvious to me that the 

Tort Claims Act can even “aid our inquiry” all that much for breach-ofcontract claims. Wasson Ints., Ltd. v. City of Jacksonville (Wasson I), 

489 S.W.3d 427, 439 (Tex. 2016). Whatever their similarities, their 

differences are greater. The former cannot safely inform the latter, just 

as a chef unfamiliar with Texas chili should not consult his bouillabaisse 

recipe for guidance on the ground that both are stews.

B

Happily, the potential misdirection the Tort Claims Act can create 

when it is conscripted into service for contract cases is at least limited 

in its scope. As this case demonstrates, if the statute’s definitions or one 

of its thirty-six enumerated functions cannot provide us any “guidance,” 

we move to the second step: applying the common law. 

Here, the problem is not so much whether the common law applies 

but how we have come to apply it.3 To determine whether a 

municipality’s action is governmental (and thus immunized), our cases 

direct us to apply a four-factor test, asking (1) whether the city’s act was 

mandatory or discretionary, (2) whether it was for the benefit of the 

3 The recognition of sovereign immunity is within the proper commonlaw domain of the courts. See Wasson I, 489 S.W.3d at 432. If the courts 

recognize immunity, then it is up to the legislature to waive it or not. 
8

general public or only its residents, (3) whether the city was acting on 

its own behalf or the State’s, and (4) whether the city’s act, if otherwise 

proprietary, was sufficiently related to a governmental function. 

Wasson II, 559 S.W.3d at 150–54. 

Today’s case, fortunately, serves as a fairly straightforward 

example of how a city can flunk each factor. But that does not mean it 

will always be so easy. As with most multifactored tests, the Wasson 

factors can point us in different directions,4 and I am unsure how to 

measure one against the other in the event of a conflict. Cf. Bendix 

Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, 

J., concurring in judgment) (likening balancing tests to “judging whether

a particular line is longer than a particular rock is heavy”); National 

Pork Producers Council v. Ross, 143 S. Ct. 1142, 1160 (2023) (opinion of 

Gorsuch, J.) (questioning how courts can weigh economic and

noneconomic costs and benefits under the Pike balancing test in a 

dormant Commerce Clause analysis and concluding that such a balance 

is “insusceptible to resolution by reference to any juridical principle”). 

Potentially worse, counting the factors for and against could give 

the mistaken impression that the immunity analysis is reducible to 

simple arithmetic. Three against one or one against three provides only 

an illusion of being closer to the correct answer. These factors are, by 

their nature, incommensurable—a fact enjoyed perhaps only by the 

4 See Wasson II, 559 S.W.3d at 154; see also Hayes St. Bridge Restoration

Grp. v. City of San Antonio, 570 S.W.3d 697, 705–06 (noting that one factor 

supported a “proprietary” classification while the other three supported a 

“governmental” classification). Indeed, if a multifactored test were incapable 

of pointing in different directions, there would seem be to be no point in having 

more than one factor. 
9

equivocating law student on exam day, but not by any judge, litigant, or 

member of the public who seeks more clarity in the law.5

To be sure, Wasson II instructs that when “some factors . . . point 

to one result while others point to the opposite result,” we “should 

consider immunity’s nature and purpose and the derivative nature of a 

city’s access to that protection.” 559 S.W.3d at 154. I must confess, 

however, that I do not quite know what that statement means or what 

rule of decision it provides for our trial judges, who must make the legal 

call in the first instance. More importantly, I doubt that a Texan about 

to form a contract with a city (or a Texan who already did so and now 

finds that city in breach) will be able to know with much confidence 

whether immunity applies or not.

Similarly lacking, I am afraid, is any confidence we may have in 

the potential answers the Wasson factors could produce. It seems entirely

possible that even when the factors all point in the same direction, it 

could be the same wrong direction. Consider, for instance, a city’s 

decision to create a police force. Jurists and laymen alike would 

intuitively (and rightly) regard that decision to be quintessentially 

governmental. The Wasson factors, though, might deem such an act 

proprietary. A city is not mandated to create a police force (factor 1); the 

police force would primarily benefit city residents by virtue of its limited 

jurisdiction, which is why the city’s residents pay for it (factor 2); and 

5 As Justice Blacklock eloquently puts it, “When the factors themselves 

become the inquiry—as seems to have happened—the underlying concepts 

recede into the mist, and we lose sight of what we are really asking and why we

are asking it.” Post at 5–6 (BLACKLOCK, J., dissenting). This comment applies 

here and to so many other areas of the law that currently rely on balancing tests.
10

that primary responsibility for funding its own police force, as well as 

its local chain of command, shows that the city would primarily be acting 

on its own behalf, not the State’s (factor 3).6 

One could perhaps argue (under factor 4) that a police force is 

“sufficiently related” to a governmental function. Relying on that escape 

hatch, though, only illustrates my point. It would be strange indeed to 

say that something is “sufficiently related” to a governmental function 

after it fails the first three factors of a test purporting to suss out 

whether it is “governmental.” Relying on the last factor, in other words, 

is essentially circular: it openly depends on already knowing what is 

“governmental” to determine whether something is “governmental.”7 

I have a sneaking suspicion that the “four-factor” test turns out 

to be a one-factor test and that—voila!—the paramount fourth “factor”

6 To be sure, this particular example assumes that I have understood 

factor 3 correctly. Based on our precedent, it is also unclear to me whether this 

factor requires us to look at the municipality’s intentions or the effects of its 

decisions. Compare Wasson II, 559 S.W.3d at 151 (considering whether 

nonresidents benefitted from a city’s decision) with id. (looking to the record to 

determine the city’s “primary objective”). 

7 One can easily imagine other examples where the factors mislead more

than facilitate the ultimate governmental-or-proprietary inquiry. How about 

another classic governmental function: levying property taxes. Because the 

State opts not to levy such taxes, doing so is a municipal choice (factor 1). Those 

taxes fund municipal entities and primarily benefit their own residents, as with

schools and streets (factor 2). In levying such taxes, a city could not claim to do

so on behalf of the State, which does not assess property taxes, and the collected

taxes do not go to the State’s fisc (other than temporarily, in some cases) (factor 

3). Maybe, again, the fourth factor could bat clean-up, but if so, what work do 

the first three achieve? How much weight should they receive in such instances? 

Is the fourth one doing anything other than stating “yes, this is governmental”—

easy for taxes or police, but harder in other cases? If we cannot trust the first 

three factors in “easy” cases, why should we trust them in hard ones?
11

is revealed as just another disguise for our ancient nemesis: Ye Olde 

Know-It-When-I-See-It Test. 

C

My thoughts thus far are admittedly rather pessimistic, but I 

proceed mindful of Chesterton’s fence. The benefit of raising these issues

in today’s case is that we can explore them without any risk of tearing 

down a fence that was built for a good but unknown or forgotten reason. 

Nonetheless, I doubt that the status quo reflects our best ability 

to distinguish between governmental and proprietary in the contract 

context. That governmental-or-proprietary distinction, I acknowledge, 

has a long historical pedigree with respect to tort claims. See City of 

Galveston v. Posnainsky, 62 Tex. 118, 130–31 (1884). But it is of 

surprisingly recent vintage with respect to contract claims. See Wasson I,

489 S.W.3d at 439. Indeed, it was only nineteen years before Wasson I 

that this Court appears to have first endorsed the antecedent premise 

that governmental units are entitled to immunity for contract claims just

as they are for tort claims. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 

401 (1997). I mention this not to challenge the use of the dichotomy—

our precedent, as fresh as it may be, prescribes its use. Instead, while I 

accept it as our current precedent, I think that it probably is too early to 

conclude that the only way that immunity might be lacking in a contract 

case is if entering into it qualifies as a city’s “proprietary” action.8 

8 This is not to mention, of course, that the legislature has already waived

any local-government immunity for certain classes of contract claims. See Tex. 

Loc. Gov’t Code §§ 271.151(2), .152 (waiving, for example, such immunity for 

contracts involving the provision of goods or services). In 2005, when the 

legislature enacted Chapter 271, it was unclear what immunity (if any) 

municipalities had for breach-of-contract claims, so the waiver avoided any 
12

But for today, I proceed on the premise that the governmental-orproprietary question will be dispositive. Given that principle, we should 

at least ensure that the nature of the claim does not become ultimately 

obscured by labels. In other words, when we begin classifying a 

municipality’s acts as either “governmental” or “proprietary,” we ought to

still account for the inherent differences between tort and contract claims.

Perhaps one way to improve our current approach, as Justice 

Blacklock suggests, is to jettison the Wasson factors and simply deploy 

our “good judgment and practical knowledge” while applying the 

governmental–proprietary dichotomy. Post at 6. Indeed, as he sees it, 

regaining “a coherent theory” in this area of the law will require a more 

“firmly grounded” understanding of “the concepts conveyed by the words 

‘governmental’ and ‘proprietary’” and applying them accordingly. Post

at 4. And perhaps building a common-law basis for this distinction in a 

series of cases will generate rules, not mere factors, that will provide the 

requisite clarity and predictability that the citizens and cities of Texas 

all deserve. I would welcome the endeavor.

That said, I cannot shake the notion that any rule or set of rules 

would characterize League City’s contract with Jimmy Changas as a 

decidedly proprietary action. And so I propose a different rule: that a 

contract is proprietary if it asks a market participant to do the very kind 

of thing it could contractually bind itself to do with non-governmental 

market participants. The contract in this case—memorializing financial 

incentives to build a restaurant—reflects no material difference from a 

consequences of the confusion. See H. Rsch. Org., Bill Analysis, H.B. 2039 

(April 20, 2005). 
13

potential contract between similarly situated private parties.

To test this view, suppose that Jimmy Changas’ counterparty was 

not a governmental entity but instead a commercial developer. Such a 

developer might offer incentives to Jimmy Changas to build a restaurant 

in its development. Why? To increase the desirability and thus the value

of its homes and commercial spaces, to attract other commercial tenants 

to a shopping plaza, to serve as an amenity for employees that would help

entice companies to open an office, or for other similar reasons. I would 

think that such an offer (if accepted) would be a standard commercial 

agreement. If Jimmy Changas performed and the private developer 

refused to do so, we would treat the dispute as an ordinary breach-ofcontract action. We would not tell Jimmy Changas that the contract was 

illusory and that its dedication of resources to this project rather than 

others that it might otherwise have preferred was for nothing.9 

My dissenting colleague, on the other hand, reaches the opposite 

conclusion and makes a strong argument that Jimmy Changas is no more

than a “participant in a government-benefits program” and a “beneficiary

of government largesse, not a counterparty in a commercial exchange” 

“in which private parties might engage for their mutual benefit.” Post 

at 7–8. As with so much else in Justice Blacklock’s opinion, I largely 

agree with this insight, but in my view, the inquiry he describes is 

antecedent to the one on which I focus. 

9 Like other legal rules, future cases may be required to refine this one, 

were the Court ever to adopt it. For example, determining the proper level of 

generality to assess whether a contract with a city is analogous to one that 

could be made with a private counterparty might require further elaboration. 

But I doubt that any such difficulty would appear in this case, and maybe not 

in many others, either. 
14

Specifically, if we determine that a “contract,” despite its name, is

nothing but an exercise of public spending or “largesse,” that would end 

our inquiry. We would never reach the immunity question at all because 

such a relationship, even if dressed up in contractual garb, would not 

truly be contractual. Whatever arguments a beneficiary of “largesse” 

might make if the munificence were to dry up, those arguments would not

sound in contract if there was no true contractual relationship. In such 

a case, as Justice Blacklock notes, we would first turn to the public law 

creating the government program. Post at 8. Other areas of law, such as

the procedural due-process jurisprudence on government benefits, might

well apply, too.10 

But if we pass that antecedent step, it becomes a contract case. 

Here, substituting the developer in my hypothetical for League City 

suggests to me that Jimmy Changas was not the beneficiary of “largesse” 

but was engaged in commercial activity. The focus on the contractual 

counterparty—who will bear all the risk if a city is able to slip out of its 

deal—is proper. To a city, everything it does will seem governmental; to 

10 There is substantial disagreement about whether (or the extent to 

which) the government must follow the strictures of due process when it makes 

a decision regarding benefits that it is under no duty to provide—benefits that 

“are sometimes referred to as government largesse.” John E. Nowak & Ronald 

D. Rotunda, Constitutional Law 540 (5th ed. 1995). The key question in such 

cases is whether these benefits constitute “property”—a question I briefly 

address in Part II, infra. For purposes of answering that question in the dueprocess context, the U.S. Supreme Court has circled around the concept of 

“entitlement,” e.g., Bd. of Regents v. Roth, 408 U.S. 564, 577–78 (1972), what 

some could easily transpose as a contractual promise, e.g., Nowak & Rotunda, 

supra, at 542 (“[An] entitlement also may come from statutory law [or] formal 

contract terms . . . .”). If such entitlements can be characterized as contracts 

at all, it is probable that they are situated quite differently for immunity 

purposes from “contracts” of the traditional sort. 
15

a hammer, everything seems like a nail. But it will not seem that way 

to a business entering into a contract (just as my thumb does not feel 

like a nail when my hammer strikes it). 

That said, Justice Blacklock is surely correct that “[g]overnmentsponsored ‘economic development’ programs are no stranger to political 

controversy” and that newly elected officials may not want to be bound 

by their predecessors’ policy decisions as reflected in the contracts that 

arise from such programs. Post at 3. But I disagree that the promises 

made and memorialized in writing by a municipality can just be undone 

by nothing more than the whims of the political process. The law has 

other ways to mitigate the profligacy of poor leadership without heaping 

all the consequences of a poor choice on the contractual counterparty.11 

In one statutory waiver of immunity for contract claims, for example, the

legislature has chosen to enact limitations on the damages recoverable 

from a municipality. See, e.g., Tex. Loc. Gov’t Code § 271.153(a)(4)–(b)(2). 

Of course, any party to a contract may negotiate for such limitations of 

liability. If cities do not do so as a matter of course, nothing stops the 

legislature from enacting such a blanket term, whether as a default or 

as mandatory, for these kinds of contracts. Nor is it clear that the 

11 The justification for municipal power to restrict individual rights by 

force of law is that municipal corporations reflect local self-government. That 

self-government premise renders quite doubtful any wholesale immunization of 

municipal corporations for their leaders’ improvident contractual undertakings. 

On the contrary, if unwise decisions generate no real consequences, the 

incentives for rigorous self-government cannot help but diminish. And, little 

by little, wise exercises of self-government will be punished, too; all local 

governments will have to pay more for a contract if some of them can renege. 

After all, how will a business be able to distinguish honorable municipalities 

whose word is their bond from those who will abandon agreements when shortterm political or fiscal agendas make doing so convenient? 
16

common law of government contracts would not have similar effects, 

allowing both parties to negotiate in the light of the law. 

The upshot of all this is that if we abandon the Wasson factors but 

keep the governmental–proprietary distinction, as Justice Blacklock 

and I both propose, the application will look much different for contracts

cases. And because many if not most of the contracts that municipalities 

enter into will be ones that private parties can similarly make, like the 

one between League City and Jimmy Changas here, those contracts will 

be correctly deemed proprietary and no immunity will attach. Cf. Gates 

v. City of Dall., 704 S.W.2d 737, 739 (Tex. 1986) (noting that “proprietary 

functions have subjected municipal corporations to the same duties and 

liabilities as those incurred by private persons and corporations”). It is 

one thing to diffuse public goods and common resources; it is quite 

another to make bargained-for promises to specific entities. 

Differentiating between the two, I think, would be an example of “good 

judgment and practical knowledge of how the world works.” Post at 6.

II

Many additional pages could illustrate with much more detail how 

governmental immunity in the breach-of-contract context is far from 

settled (if not unsettling). Reasonable minds can and will differ on what 

immunity (if any) municipalities can claim in such cases. Opinions from 

Justices of this Court have run the gamut, ranging from a categorical 

immunity rule, to no immunity at all, to someplace in between.12 I cannot

12 See, e.g., Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 

849, 857 (Tex. 2002) (categorical immunity rule); Fed. Sign, 951 S.W.2d at 418 

(Enoch, J., dissenting) (no immunity at all); id. at 412 (Hecht, J., concurring) 

(some place in between). 
17

say which is right without further consideration and briefing on the issue,

of course, but given the inability of our current factor-ridden framework 

to generate consistent and predictable results, I doubt stare decisis will 

stand as an insurmountable barrier to a thorough recalibration of our 

approach. Thus, to the extent a future case asks us to reconsider our 

precedents, I offer a few tentative observations, intended not as any 

great effort to plumb the depths of this contentious and cacophonous 

area of the law, but instead as a modest offer of potential points of 

consideration if and when the occasion calls for it. 

First, the fact that we are dealing with a municipal corporation 

might simplify our analysis. As a learned colleague on the federal bench 

recently opined, “at common law, both in England and the early American

Republic, incorporated entities were not entitled to sovereign immunity.” 

Springboards to Educ., Inc. v. McAllen Indep. Sch. Dist., 62 F.4th 174, 

191 (5th Cir. 2023) (Oldham, J., concurring).

13 Whatever the support for 

that (some might say) proposed federal common-law rule,14 I find the 

13 Coincidentally, the full Springboards panel also expressed frustration

with precedent that mandated—you guessed it—a multifactor-balancing test 

for immunity. Compare id., at 179 (noting that the immunity factors derived 

from Clark v. Tarrant Cny., 798 F.2d 736 (5th Cir 2019), have been “fairly 

described as having all the precision of a blunderbuss”) (internal quotations 

and citations omitted), with id. at 187 (Oldham, J., concurring) (calling the 

factors “cumbersome” and proposing “a new single-factor test: Was the entity 

asserting state sovereign immunity considered ‘the State’ in 1789?”).

14 Compare Ann Woolhandler, Interstate Sovereign Immunity, Sup. Ct. 

Rev. 249, 261 (2006) (“[T]he [U.S. Supreme] Court might have treated the 

immunities as matters of federal constitutional or federal common law.”), with 

Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 

Harv. L. Rev. 1559, 1565–66 (2002) (positing that state sovereign immunity is 

a “concept . . . relevant to personal jurisdiction”); William Baude, Sovereign 

Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 8–22 (2017) (arguing 
18

general principle to be helpful at least as a rebuttable presumption. 

Municipal corporations are not remotely sovereign, of course, even as a 

matter of Texas common law. But just like individual human beings,

corporations could be treated as such when performing roles delegated to

them by the State. In such instances, if the presumption against being 

“the State” is rebutted, immunity would apply in the ordinary course. 

Second, aside from what we have said, perhaps we should consider

what the People have said about when the government (including the 

State itself) must compensate private parties: “No person’s property 

shall be taken . . . without adequate compensation.” Tex. Const. art. I, 

§ 17. And as we have observed before, the Texas Takings Clause itself 

“waives immunity for suits,” City of Dallas v. VSC, LLC, 347 S.W.3d 

231, 236 (Tex. 2011), and applies to all property (real or personal), Gulf, 

C. & S.F. Ry. Co. v. Fuller, 63 Tex. 467, 469 (1885). Thus, when a 

municipality accepts property under a contract and refuses to pay for 

them, such an action might amount to a raw, compensable taking.15

Third, and finally, sprinkled about our immunity opinions are 

various appeals to pragmatism, including that immunity should shield 

that sovereign immunity is a “constitutional backdrop” and thus a form of 

common law that “can’t be changed because of the properly limited nature of 

Articles I and III”).

15 Cf. Fed. Sign, 951 S.W.2d at 415 (Hecht, J., concurring) (“The State 

may not take property without compensation, but it may determine how its 

Branches will participate in deciding its contractual disputes.”); John 

Echeverria, Public Takings of Public Contracts, 36 Vt. L. Rev. 517, 530 (2012) 

(“[I]f the government has not only impaired the contract interest but deprived 

the party of her contract remedy, then the party’s protected interests have been 

destroyed and allowing the takings claim to go forward is necessary to protect 

those interests.”).
19

the public from the costs of their government’s “improvident actions.” If 

“improvidence” typifies actions sounding in ordinary negligence, this 

rationale may make sense for torts. But as I noted above, I doubt it 

applies as much to a governmental entity’s breach of contract.16 A deal 

may turn out to be less good than hoped, but negotiated contracts can 

always have adequate foresight. A momentary lapse in judgment 

resulting in a tort is unlike the conscious, studied decision to make a 

promise—or, for that matter, to break one. Granting immunity to obviate

the consequences of “improvident” governmental actions, then, cannot be

the only answer. The public—whom we have sought to “shield”—always 

retains the option of not electing improvident officials. Judicially 

relieving those officials’ improvidence, by contrast, means that the only 

party to suffer any consequences is the one who entered into the contract. 

No governmental unit—especially in Texas, where promises really 

matter—should be able to evade its obligations so capriciously.

* * *

With these observations, I respectfully concur and await another 

case in which the Court may appropriately revisit the principles of 

immunity as they apply to contract claims against municipalities. 

Evan A. Young

Justice

OPINION FILED: June 9, 2023

16 We have used such reasoning several times in suits against 

governmental entities for breach of contract. E.g., Tooke, 197 S.W.3d at 332; 

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

Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98, 121 (Tex. 2014)

(Boyd, J., dissenting); Wasson I, 489 S.W.3d at 432.