REVERSE and RENDER and Opinion Filed August 13, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-01273-CV 

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant 

V. 

PRIMARY MEDIA GROUP, INC., Appellee 

On Appeal from the 439th Judicial District Court 

Rockwall County, Texas 

Trial Court Cause No. 1-21-1352 

MEMORANDUM OPINION 

Before Justices Goldstein, Garcia, and Miskel 

Opinion by Justice Goldstein 

The Texas Department of Transportation (TXDOT or Department) appeals 

the trial court’s order denying TXDOT’s motion to dismiss for lack of jurisdiction. 

In a single issue, TXDOT argues that, because Primary Media failed to establish a 

waiver of sovereign immunity, the trial court should have dismissed the case for 

want of jurisdiction. We reverse the trial court’s judgment and render judgment 

dismissing Primary Media’s claims for want of jurisdiction. 

 
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PRIMARY MEDIA’S SECOND AMENDED PETITION 

In September 2021, Primary Media filed its original petition asserting breach 

of contract claims against TXDOT in connection with Primary Media’s execution of 

certain quitclaim deeds and applications to relocate four impacted outdoor 

advertising signage. After the filing of TXDOT’s motion to dismiss for lack of 

jurisdiction, but prior to the hearing, Primary Media amended its petition twice, the 

Second Amended Petition being the live pleading at the time of the hearing (herein 

“the petition”). The facts set forth in this section are taken directly from Primary 

Media’s petition. 

Primary Media is an owner and operator of off-premise, outdoor advertising 

signs commonly known as billboards throughout Texas, frequently located adjacent 

to interstate highways and major thoroughfares. TXDOT, responsible for widening 

and improving state highways, is also the agency charged with regulating and 

permitting commercial signs located on the interstate and primary systems. 

 The petition outlined TXDOT’s treatment of billboards in eminent domain 

proceedings as follows: 

When acquiring property on which a billboard is located to 

accommodate a public improvement project, the State treats sign 

owners differently than other property owners. Acting through the 

Department, prior to the commencement of formal condemnation 

proceedings, the State makes an offer to a billboard owner equal to the 

appraised value of a sign, less a nominal retention value, in exchange 

for the sign owner’s agreement to remove the impacted billboard. 
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A billboard owner that chooses to settle with the Department is 

required, prior to the Special Commissioners’ hearing, to agree upon a 

value for the impacted sign (ordinarily through a memorandum of 

agreement or similar exchange of correspondence) and quitclaim its 

interest in the subject sign to the State of Texas through a 

nonnegotiable, standard form quitclaim deed prepared and provided by 

the Department. TxDOT’s standard memoranda of agreement typically 

include the following form language: 

It is important to confirm this agreement in order to avoid 

any possible misunderstanding as to the details of the 

purchase or the process by which the Texas Department of 

Transportation (TxDOT) will make payment. The 

payment of [the purchase price] as herein agreed will 

constitute full payment to be made by TxDOT for the 

property to be conveyed to the State. The consideration 

recited herein represents a settlement and compromise by 

all parties as to the value of the property herein conveyed 

in order to avoid formal eminent domain proceeding and 

the added expense of litigation. 

(emphasis added). The memoranda go on to describe a sign owner’s 

eligibility for an impacted sign credit: 

Under certain circumstances, Rule 21.192 of Title 43 of 

the Texas Administrative Code allows the owner of a 

billboard structure to apply for a relocation permit if it is 

legally erected and maintained and will be within the 

highway right of way as a result of a highway construction 

project. 

Executing a quitclaim deed and retaining the billboard 

structure does not guarantee that a relocation permit will 

be issued. In addition to executing the quitclaim deed and 

retaining the billboard structure, the owner of the billboard 

structure must follow and meet the current relocation 

permitting guidelines found in 43 TAC 21.192, et seq. 

The payment of the amount herein stated and the terms 

provided constitute the only promises, consideration and 
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conditions of this purchase; and no other promises, 

consideration and conditions have been signified or 

implied, save and except the mutual benefits to be derived 

by you and TxDOT from the signing of this agreement. 

The Department’s standard form quitclaim deed provides that the 

billboard owner will remove the impacted sign after receiving a notice 

to vacate from the Department. By submitting to this process, a 

billboard owner waives its right to go through formal condemnation 

proceedings to obtain an award of just compensation for the loss of the 

billboard, and waives its right to recover any relocation assistance 

benefits for the cost to relocate the retained structure. 

The State’s settlement procedure for billboards displaced by highway 

projects is explained in a Department-issued policy titled, “Amended 

Guidance for Impacted Off-Premise Billboards Affected by Highway 

Transportation Projects” (the “Guidance”). The Guidance provides that 

a billboard owner that retains the structure through this settlement 

process will be eligible for an impacted sign credit under 43 Tex. 

Admin. Code § 21.192. The same procedure is likewise included in a 

Department-issued memorandum titled, “Impacted Commercial Signs: 

What to Expect When Your Sign is Impacted by a TxDOT Construction 

Project.” 

The Department’s regulations applicable to the issuance of impacted 

sign credits are found in 43 Tex. Admin. Code §§ 21.192, .193, & .195. 

These sections provide sign owners the ability to relocate a billboard 

displaced by a highway project using certain relaxed relocation criteria. 

For example, a relocated sign need only be adjacent to one business, 

instead of the two businesses required for ordinary new-build signs. 43 

Tex. Admin. Code § 21.193(c); cf. 43 Tex. Admin. Code § 

21.179(a)(1). Additionally, the various spacing requirements for 

relocated signs are relaxed, as compared to the spacing requirements 

for new-build signs. 43 Tex. Admin. Code §21.193(b); cf. 43 Tex. 

Admin. Code § 21.187. Today, most of the available locations for the 

construction of new signs have been utilized. As such, a relocation 

permit that entitles the holder to relax the ordinary regulations for newbuild signs is a valuable, private right, which is made all the more 

valuable due to TxDOT’s required waiver of condemnation rights 

necessary for the sign owner to receive the TxDOT relocation permit. 
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After agreeing on a reduced value for an impacted sign (through the 

execution of a memorandum of agreement or exchange of 

correspondence with TxDOT) and signing a quitclaim deed, an 

impacted sign owner will receive a notice to vacate, which specifies the 

required removal date, and informs the sign owner of the following: 

“Failure to remove the retained improvements will also result in the loss 

of eligibility for a relocation permit for the outdoor advertising sign.” 

After receiving the notice to vacate from the Department, a sign owner 

is required to remove a sign by the deadline included in the notice. The 

sign owner is then required to submit TxDOT’s Impacted Sign Credit 

Application form in order to receive an impacted sign credit. 

The Parcel 23 Sign 

The petition alleged that Primary Media owned a sign adjacent to IH-35 in 

Gainesville, Texas, which was located on property designated by the State as Parcel 

23 and removed to accommodate a State road-widening project (the “Parcel 23 

Sign”). The Parcel 23 Sign was permitted by the City of Gainesville, a “certified 

city” with the authority to control commercial signs in its jurisdiction. Under the 

Texas Administrative Code, a certified city has the authority to regulate billboards 

within its corporate limits, and billboard owners that receive a permit from a certified 

city to construct a billboard do not have to obtain a permit from TXDOT. 43 Tex. 

Admin. Code § 21.200. Once TXDOT gave Primary Media notice that the Parcel 

23 Sign would have to be removed, Primary Media negotiated a settlement with 

TXDOT, signed a memorandum of agreement, executed a quitclaim deed, timely 

removed the sign, and documented the removal of the sign on TXDOT’s Impacted 

Sign Credit Application. 
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After Primary Media removed the Parcel 23 Sign, it applied for and obtained 

a permit from the City of Gainesville to construct a sign on the remainder of the 

impacted property, asserting that the site remained conforming as a new build site. 

Because Gainesville is a certified city, Primary Media did not have to apply for a 

TXDOT permit or utilize a TXDOT impacted sign credit. Primary Media did apply 

for a permit to construct a sign near Caddo Mills, Texas. TXDOT rejected the 

application pursuant to 43 Texas Administrative Code section 21.192. In a letter, 

TXDOT stated the following: 

The application you submitted on December 30, 2020 was unable to be 

processed for the following reason(s). Based on the information 

provided by the City of Gainesville, the sign has already been relocated 

approximately thirty feet from where it was originally located. The 

purpose of the impacted sign credit is to provide an incentive to the sign 

owner when their sign is impacted by a highway construction project. 

In this case, the sign was able to move to a new location in accordance 

with the city of Gainesville ordinances. Therefore, the permit is not 

eligible for use in relocating an impacted sign and this application must 

be rejected. 

Primary Media appealed, but TXDOT “summarily concluded that Primary 

Media was ineligible for receipt of an impacted sign credit because it was able to 

build a sign on the remainder of Parcel 23.” 

The Parcel 48 Sign 

Primary Media owned a sign located near Forney, Texas, designated as the 

Parcel 48 Sign, and TXDOT required that Primary Media remove the sign in July 

2021. Primary Media followed TXDOT-mandated procedure for the removal of 

impacted signs so that it could remain eligible for a relocation credit: Primary Media 
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settled with the State on the value of the structure through the execution of a standard 

form Quitclaim Deed, timely removed the impacted structure prior to the date 

included in TXDOT’s Notice to Vacate and submitted all required documentation to 

the Department with an Impacted Sign Credit Application. On July 29, 2021, 

TXDOT notified Primary Media that its Impacted Sign Credit Application was 

rejected as follows: 

According to 43 TAC § 21.192(a), a commercial sign that has been 

timely removed from a department construction project may be 

relocated. The notice to vacate stated that the property was to be 

vacated on July 12, 2021. However, photos from July 22, 2021 

provided by TXDOT staff showed that the sign was taken down, but 

the sign parts were still at the acquired property. The pipe is cut at 

ground level and capped, leaving pipe and footings intact. 

The Parcel 16 Sign 

Primary Media removed a sign located in Gainesville, Texas, adjacent to I-35, 

on property designated by TXDOT as Parcel 16 (the “Parcel 16 Sign”) in order to 

accommodate TXDOT’s highway improvements. Primary Media executed a 

Quitclaim Deed, timely removed the Parcel 16 Sign in response to TXDOT’s Notice 

to Vacate, and properly documented the removal. Similar to the Parcel 23 Sign, 

Primary Media was able to construct a new sign on the remainder of Parcel 16 

because the property remained a conforming location under Gainesville’s sign 

regulations. Primary Media properly submitted an Impacted Sign Credit Application 

for the Parcel 16 Sign on August 12, 2021. On August 23, 2021, TXDOT sent a 

letter to Primary Media in which TXDOT rejected the Application for reasons 
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similar to those stated in the TXDOT’s letters rejecting Primary Media’s Impacted 

Sign Credit Applications for Parcels 23 and 48. 

The Parcel 60 Sign 

Primary Media removed a sign located in Royse City, Texas, adjacent to I-30, 

on property designated by the State as Parcel 60 (the “Parcel 60 Sign”) in order to 

accommodate the State’s highway improvements. Primary Media executed a 

Quitclaim Deed, timely removed the Parcel 60 Sign in response to TXDOT’s Notice 

to Vacate, and properly documented the removal. On September 13, 2021, TXDOT 

mailed Primary Media a letter, in which TXDOT informed Primary Media that its 

Impacted Sign Credit Application was rejected. In its letter, TXDOT explained: 

The notice to vacate stated that the property was to be vacated on May 

5th, 2021, with an extension granted until August 31st, 2021. However, 

photos provided by Primary Media staff showed that the sign was taken 

down, but the sign parts were still at the acquired property. The pipe is 

cut at ground level and capped, leaving pipe and footings intact. 

Therefore, the sign is not eligible for an impacted sign credit. 

Primary Media’s Breach of Contract Claim 

Based on its rendition of the facts, Primary Media asserted claims of breach 

of contract in connection with each of the signs. Generally, Primary Media claimed 

it settled with TXDOT by executing quitclaim deeds in lieu of exercising its rights 

to just compensation in eminent domain. Primary Media claimed the quitclaim 

deeds required Primary Media to remove and retain the subject structures in order to 
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retain eligibility for relocation permits1

 and that, in exchange for its compliance with 

the deeds’ removal requirements, Primary Media was entitled2

 to the issuance of 

relocation permits. In compliance with the terms of the deeds and Department 

regulations, Primary Media asserts it timely removed the subject signs, incurred the 

expense of such removal efforts, agreed to a one-percent reduction in compensation 

for the subject signs, and submitted all TXDOT-mandated paperwork. Thus, avers 

Primary Media, TXDOT breached its obligation to issue Primary Media the 

requested relocation permits upon the timely removal of the subject signs. 

Specifically, Primary Media claimed TXDOT breached its obligation owed to 

Primary Media under the quitclaim deed for the Parcel 23 Sign when it rejected 

Primary Media’s impacted sign credit application, and Primary Media did not waive 

its right to an impacted sign credit. As to the Parcel 48 Sign, Primary Media asserted 

that TXDOT breached its obligations under the quitclaim deed when it rejected 

Primary Media’s impacted sign credit application because TXDOT regulations do 

not require the removal of the subsurface components of an impacted sign structure 

but only the removal of the “sign” itself. Primary Media complained TXDOT 

breached its obligations under the applicable quitclaim deeds when it rejected 

1

 We note that the quitclaim deeds actually make no reference to relocation permits; they only refer to 

Primary Media’s removal and retention of the signs. 

2

 Primary Media’s contention that it was “entitled” to relocation permits would become a central issue 

in the case, both in the trial court and on appeal. Again, however, the quitclaim deeds do not mention 

relocation or relocation permits or contain the word “entitled” or its variants. 
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Primary Media’s impacted sign credit applications in connection with the Parcel 16 

Sign and Parcel 60 Sign “for the same reasons.” 

TXDOT’S PLEA TO THE JURISDICTION, SPECIAL EXCEPTIONS, 

GENERAL DENIAL, AND AFIRMATIVE DEFENSES 

In October 2021, TXDOT filed a responsive pleading asserting that the trial 

court lacked jurisdiction over Primary Media’s suit because TXDOT’s sovereign 

immunity had not been waived. TXDOT also specially excepted to Primary Media’s 

petition because it did not allege a valid waiver of sovereign immunity or Primary 

Media’s obtaining legislative consent to file suit against TXDOT. Finally, TXDOT 

generally denied Primary Media’s allegations and, as an affirmative defense, 

asserted it was immune from suit and liability under the theory of sovereign 

immunity. 

TXDOT’S MOTION TO DISMISS FOR LACK OF 

JURISDICTION 

In May 2022, TXDOT filed its motion to dismiss for lack of jurisdiction. As 

the factual background for its motion, TXDOT alleged Primary Media executed a 

quitclaim deed for each of the subject properties. In the deeds, the parties agreed 

that Primary Media could remove and retain possession of and title to the 

commercial sign structures located on the properties if they were removed from the 

described tracts of land by the dates set forth in notices to vacate. In consideration 

for the quitclaim deeds, Primary Media was paid $218,252 for the deed to Parcel 16, 

$89,400 for the deed to Parcel 23, $82,569 for the deed to Parcel 48, and $110,150 
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for the deed to Parcel 60. TXDOT correctly reflects the record that the quitclaim 

deeds did not make any promises concerning relocation permits and did not even 

mention relocation or relocation permits. According to TXDOT, Primary Media’s 

impacted sign credit applications were denied either because the signs had already 

been relocated in accordance with municipal ordinances pursuant to 43 Texas 

Administrative Code section 21.195 or because all sign parts were not timely 

removed. TXDOT argued it did not waive immunity from suit by contracting with 

a private party, citing Texas Natural Resource Conservation Commission v. ITDavy, 74 S.W.3d 849, 854, 858 (Tex. 2002). TXDOT asserted Primary Media could 

not raise a material issue of fact regarding the existence of promises to issue 

relocation permits that may have been violated because the quitclaim deeds do not 

contain such promises. Accordingly, TXDOT argued, Primary Media had not raised 

a material fact issue as to whether contracts were breached, sovereign immunity was 

not waived, and Primary Media’s claims should have been dismissed for want of 

jurisdiction. 

THE TRIAL COURT’S ORDER 

 On November 2, 2022, the trial court signed an order denying TXDOT’s 

motion to dismiss for lack of jurisdiction. The order provided in its entirety: 

In considering the [TXDOT’]s Motion to Dismiss for Lack of 

Jurisdiction, the Court has reviewed the motion, response, all 

supplements of each, other evidence on file, and the pleadings. The 

Parties stipulated that all the signs in [Primary Media’s] Petition are 

from settlements in lieu of condemnation proceedings. 
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[TXDOT] takes the position that there is no agreement or guarantee 

because the parties’ signed agreement states “Executing a quitclaim 

deed and retaining the billboard structure does not guarantee that a 

relocation permit will be issued.” However, the very next sentence 

states “In addition to executing the quitclaim deed and retaining the 

billboard structure, the owner must follow and meet the current 

relocation permitting guidelines found in 43 TAC 21.192, et seq.” The 

signed agreement also provides for reasons the Plaintiff would not be 

eligible for a relocation permit. 

[TXDOT] also claims there could never be a breach of contract claim 

based on the failure to issue a relocation permit because issuance of a 

permit is a governmental function, not a contract. Yet [TXDOT’s] 

Amended Guidance for Impacted Off-Premise Billboards Affected by 

Highway Transportation Projects dated June 9, 2016, provides 

procedures to be followed with specific reference to language in the 

deed, which, is derived from the agreement reached in lieu of 

condemnation. 

Further, [TXDOT’s] rejection letters lay out provisions in the 

agreements and/or deeds that allegedly were not complied with by 

[Primary Media]. 

The Court finds that [TXDOT’s] Motion to Dismiss for Lack of 

Jurisdiction is hereby DENIED. 

This appeal followed. 

ANALYSIS 

 In a single issue, TXDOT argues that, because Primary Media failed to 

establish a waiver of sovereign immunity, the trial court should have dismissed the 

case for want of jurisdiction. 

Standard of Review 

We review an order denying a plea to the jurisdiction de novo. Tex. Dep’t of 

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); City of McKinney 
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v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 109 (Tex. App.—Dallas 2013, no pet.). 

A plea to the jurisdiction can challenge the sufficiency of the claimant’s pleadings 

or the existence of necessary jurisdictional facts. Miranda, 133 S.W.3d at 226–28; 

Hank’s Rest. Grp., 412 S.W.3d at 109. Here, TXDOT asserted that Primary Media 

failed to demonstrate that the allegations in its petition fell within the trial court’s 

jurisdiction. As the claimant, Primary Media bears the burden of pleading facts that 

affirmatively demonstrate that governmental immunity has been waived and that the 

court has subject-matter jurisdiction. Hank’s Rest. Grp., 412 S.W.3d at 109; see City 

of Dallas v. Turley, 316 S.W.3d 762, 767 (Tex. App.—Dallas 2010, pet. denied). 

We construe the pleadings in the claimant’s favor and look to the pleader’s intent. 

Miranda, 133 S.W.3d at 226. If the pleadings do not contain enough facts to 

demonstrate the propriety of jurisdiction but do not affirmatively demonstrate 

incurable defects in jurisdiction, the claimant should be afforded the opportunity to 

amend. Id. at 226–27. This opportunity shall be given after a court determines that 

the pleadings are insufficient. Lazarides v. Farris, 367 S.W.3d 788, 803–04 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.). But if the pleadings affirmatively negate 

the existence of jurisdiction, the plea may be granted without giving the claimant an 

opportunity to amend. Miranda, 133 S.W.3d at 227. 

 Governmental immunity is a common-law doctrine. City of Dallas v. Albert, 

354 S.W.3d 368, 373 (Tex. 2011). It applies to political subdivisions of the State, 

while the immunity of the State itself is referred to as sovereign immunity. Id. at 
 –14– 

372 n.2. “When performing governmental functions, political subdivisions derive 

governmental immunity from the state's sovereign immunity.” City of Houston v. 

Williams, 353 S.W.3d 128, 134 (Tex. 2011) (footnote omitted). Governmental 

immunity comprises both immunity from liability and immunity from suit. Albert, 

354 S.W.3d at 373. “Immunity from liability protects entities from judgment while 

immunity from suit deprives courts of jurisdiction over suits against entities unless 

the Legislature has expressly consented . . . .” Id. Thus, the legislature can waive a 

political subdivision’s governmental immunity. See id. at 374 (“[W]aivers of 

sovereign immunity or consent to sue governmental entities must generally be found 

in actions of the Legislature.”). 

 Governmental immunity is not unlimited. Generally, a claim falls within the 

scope of governmental immunity if the claimant seeks either to control government 

action or to subject the governmental entity to liability. Hank’s Rest. Grp., 412 

S.W.3d at 111. But “a governmental entity does not have immunity from suit for 

monetary claims against it that are ‘germane to, connected with, and properly 

defensive to’ affirmative claims made by the entity, to the extent the claims against 

the entity offset the entity’s claims.” Albert, 354 S.W.3d at 372 (quoting Reata 

Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex. 2006)). Also, “suits for 

injunctive relief may be maintained against governmental entities to remedy 

violations of the Texas Constitution.” City of Elsa v. M.A.L., 226 S.W.3d 390, 392 

(Tex. 2007) (per curiam) (internal quotation and citation omitted). Nevertheless, the 
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State does not waive immunity from suit simply by contracting with a private party. 

Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). 

Without specific identification of promissory language in the record, Primary 

Media has argued TXDOT promised that Primary Media was entitled to relocation 

permits under the terms of the quitclaim deeds. However, none of the quitclaim 

deeds or other documents contain such a promise. The quitclaim deeds themselves 

made no mention of relocation permits. The initial offer letters with respect to each 

property set forth procedures for applying for relocation permits but expressly stated 

that “[e]xecuting the quitclaim deed and retaining the billboard structure does not 

guarantee that you will get a relocation permit.” The final offer letters related to 

parcels 48 and 60 stated that, “[a]s outlined in the State’s initial offer letter,” Primary 

Media would be eligible for a relocation permit only if it quitclaimed its billboard 

structure to the State, retained that structure, and then applied for a relocation permit. 

Memoranda of agreement related to parcels 16 and 23 provided, in keeping with the 

initial offer letters, that executing a quitclaim deed and retaining the billboard 

structure “does not guarantee that a relocation permit will be issued.” A November 

2020 Rule 11 agreement between the State and Primary Media regarding a 

settlement in lieu of condemnation on parcels “60/60E and 61” stated that Primary 

Media “maintains its eligibility for relocation permits under Texas Department of 

Transportation’s regulations” provided that Primary Media remained in compliance 

with all other provisions of the agreement and TXDOT regulations. The notices to 
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vacate associated with each parcel provided that the failure to remove the retained 

improvements would result in “the loss of eligibility for a relocation permit for the 

outdoor advertising sign.” 

In its response to TXDOT’s motion to dismiss, Primary Media asserted that, 

if it had not settled with TXDOT and executed the quitclaim deeds and other 

agreements, it would have been entitled to adequate compensation in eminent 

domain. Primary Media quoted Trant v. Brazos Valley Solid Waste Management 

Agency, Inc., 478 S.W.3d 53, 62 (Tex. App.—Houston [14th Dist.] 2015, pet. 

denied) for the proposition that “[w]hen a governmental entity is exposed to suit—

such as through a claim seeking compensation for a governmental taking—because 

of a waiver or lack of immunity, it cannot nullify that waiver or lack of immunity by 

settling the claim with an agreement on which it cannot be sued.” See also Texas A 

& M Univ.–Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002). Primary Media 

argued that “[a]n agreement to convey property to a governmental authority for a 

public purpose has the same effect as a formal condemnation proceeding,” quoting 

City of Carrollton v. Singer, 232 S.W.3d 790, 798 (Tex. App.—Fort Worth 2007, 

pet. denied). Based on these authorities, Primary Media asserted that courts have 

held on several occasions that governmental entities are not entitled to immunity 

from suit in actions for breach of settlement agreements reached in lieu of eminent 

domain proceedings. See id. at 800. 
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Trant is instructive to our analysis. In Trant, the Trants entered into an option 

contract with the cities of Bryan and College Station, pursuant to which the cities 

obtained the right to purchase approximately 382 acres of land in Grimes County 

from the Trants. Trant, 478 S.W.3d at 56. The option contract stated: “[the cities] 

contemplate using the Property as a . . . Landfill.” Id. The cities subsequently 

purchased the property, and the parties executed a general warranty deed, which 

incorporated the “Terms, Conditions, and Representations” in the option contract. 

Id. at 56–57. The cities and the Trants also signed an easement agreement for access 

granting the Trants non-exclusive access to their land adjacent to the property. Id.

at 57. 

The cities formed the agency, a governmental entity that operated a landfill 

on the property. Id. In 2014, the Trants learned that the cities had decided to put a 

firing range on a portion of the property near their land. Id. The Trants sent a letter 

to the cities and the agency, contending that the property could be used only as a 

landfill. Id. Counsel for the agency responded by letter that while the option contract 

contemplated an intended use of the property as a landfill, the contract did not restrict 

the cities’ use of the property to such purpose. Id. 

The Trants filed suit against the agency, bringing claims including a breach 

of contract claim. Id. The agency filed a plea to the jurisdiction, asking the trial 

court to dismiss the suit on the basis that governmental immunity barred the Trants’ 
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claims. Id. The Trants argued that the general warranty deed included a restrictive 

use covenant allowing the land to be used only as a landfill. Id. at 60. 

The Trant court determined the Trants failed to raise a material issue of fact 

as to the agency’s violation of a restrictive use covenant in the general warranty deed 

or option contract because those documents did not include a restrictive use covenant 

providing that the cities agreed to use the property as a landfill, only language 

reflecting how the cities anticipated using the property. Id. (emphasis in original). 

The court addressed the Trants’ argument that the purported unauthorized use of the 

easement and the property for purposes other than as a landfill constituted an 

unconstitutional taking of the property and rejected this argument because the 

agency was not required to use the property as a landfill. Id. at 61–62. 

The court next addressed the Trants’ contention that their sale of land to the 

cities was tantamount to a formal condemnation proceeding that was settled by the 

Trants’ agreement to sell the property, the purpose of their lawsuit was to enforce 

the parties’ settlement agreement, and the agency was not immune from such suits. 

Id. at 62. The Trant court stated that, when a governmental entity is exposed to 

suit—such as through a claim seeking compensation for a governmental taking—

because of a waiver or lack of immunity, it cannot nullify that waiver or lack of 

immunity by settling the claim with an agreement on which it cannot be sued. Id.

(citing Lawson, 87 S.W.3d at 521). To illustrate, the court went on to state that the 

Fort Worth Court of Appeals held that a city did not have governmental immunity 
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for a breach of contract claim involving the breach of an agreement in settlement of 

a condemnation claim because the governmental entity would not have had 

immunity from the underlying takings claim. Id. (citing Singer, 232 S.W.3d at 799–

800). The court noted that, in holding that the City was not immune from suit, the 

Singer court observed in the absence of the settlement agreement, “the [plaintiffs] 

would have [had] a claim against the City for adequate compensation for the City’s 

[taking] of their property . . . for which the City would not be immune.” Id. at 62–

63 (citing Singer, 232 S.W.3d at 800). Ultimately, the Trant court concluded it need 

not decide whether the Option Contract was, as alleged by the Trants, a settlement 

of a condemnation claim because the Trants had not raised a material issue of fact 

regarding whether the contract was breached. Id. at 63. 

The Trant court observed that the Trants alleged only that “the Option 

Contract specifically limited the taking of each tract of property for ‘the 

construction, operation, and maintenance of a solid waste facility and landfill’” and 

“[s]ince all takings and transfer set forth herein were made pursuant to condemnation 

or the threat of condemnation, [the agency] has waived its right to sovereign or 

governmental immunity.” Id. As the court had already explained, the contract 

contained no such limitation. Id. Accordingly, the Trants did not allege an 

unconstitutional taking for which the agency would not be immune as a basis for the 

trial court’s jurisdiction. Id. (citing Singer, 232 S.W.3d at 800); see also Kaufman 

Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) 
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(“Although governmental immunity does not shield a governmental entity from a 

valid takings claim, it does apply when a plaintiff does not allege a valid takings 

claim.”). Because the court concluded the agency was immune from suit under the 

circumstances of that case, the court affirmed the trial court’s judgment granting the 

agency’s plea to the jurisdiction and dismissing the case for want of jurisdiction. Id.

at 65. 

Similarly, here the quitclaim deeds did not mention relocation or relocation 

permits, and the other documents associated with the State’s acquisition of the four 

parcels acknowledged the possibility of Primary Media obtaining relocation permits 

but either expressly stated TXDOT did not guarantee that Primary Media would get 

a relocation permit or merely indicated that Primary Media would be eligible for a 

relocation permit under certain circumstances. Because none of the deeds or other 

documents indicate that TXDOT was contractually obligated to issue Primary Media 

relocation permits, we conclude Primary Media has not raised a material issue of 

fact regarding whether the contracts were breached3

 and we need not, therefore, 

decide whether the quitclaim deeds and other documents constituted a settlement of 

a condemnation claim. See id. at 63. Accordingly, Primary Media did not allege an 

unconstitutional taking for which the agency would not be immune as a basis for the 

3

 To the extent Primary Media relies on representations made by “TXDOT’s agent” to show that the 

parties agreement included an agreement that Primary Media would be allowed to relocate its signs, we 

reject this argument. The parol evidence rule bars consideration of evidence that contradicts, varies, or 

adds to the terms of an unambiguous written agreement. Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, 

Inc., 590 S.W.3d 471, 483 (Tex. 2019). 
 –21– 

trial court’s jurisdiction. See id. Thus, on this record, we conclude the trial court 

erred in denying TXDOT’s motion to dismiss for lack of jurisdiction. 

To the extent Primary Media complains of TXDOT’s application of its 

regulations concerning relocation permits to the parcels at issue, again, on this 

record, the trial court similarly lacked jurisdiction over those claims as well. See 

Lamar Advantage Outdoor Co., L.P. v. Texas Dep’t of Transportation, No. 14-20-

00362-CV, 2022 WL 1498213, at *9 (Tex. App.—Houston [14th Dist.] May 12, 

2022, no pet.) (mem. op.) (Government Code Section 2001.0038 does not confer 

jurisdiction over the courts to determine whether an agency has complied with a rule 

or how a rule should be applied) (citing LMV-AL Ventures, LLC v. Texas Dep’t of 

Aging & Disability Servs., 520 S.W.3d 113, 124–25 (Tex. App.—Austin 2017, pet. 

denied)). We sustain TXDOT’s single issue. 

We reverse the trial court’s judgment and render judgment dismissing Primary 

Media’s claims for want of jurisdiction. 

221273F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –22– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TEXAS DEPARTMENT OF 

TRANSPORTATION, Appellant 

No. 05-22-01273-CV V. 

PRIMARY MEDIA GROUP, INC., 

Appellee 

 On Appeal from the 439th Judicial 

District Court, Rockwall County, 

Texas 

Trial Court Cause No. 1-21-1352. 

Opinion delivered by Justice 

Goldstein. Justices Garcia and Miskel 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is REVERSED and judgment is RENDERED that: 

Primary Media Group, Inc.’s claims are DISMISSED for lack of 

jurisdiction. 

 It is ORDERED that appellant TEXAS DEPARTMENT OF 

TRANSPORTATION recover its costs of this appeal from appellee PRIMARY 

MEDIA GROUP, INC. 

Judgment entered August 13, 2024.