NUMBER 13-23-00324-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

ARANSAS COUNTY, Appellant,

v. 

NORTHSTAR RECOVERY

SERVICES, INC., Appellee.

 

On appeal from the 36th District Court 

of Aransas County, Texas.

 

MEMORANDUM OPINION 

Before Justices Longoria, Silva, and Peña

Memorandum Opinion by Justice Silva

Appellant Aransas County appeals the trial court’s denial of its plea to the 

jurisdiction as to appellee NorthStar Recovery Services Inc.’s (NorthStar) claims against 

it. By two issues, Aransas County argues the trial court erred by denying its plea because 

(1) NorthStar did not plead facts sufficient to establish subject matter jurisdiction, and 
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(2) NorthStar’s evidence does not demonstrate that the trial court possesses jurisdiction. 

We affirm.

I. BACKGROUND

A. The Petition

This case arises out of events that followed Hurricane Harvey’s landfall and 

resulting destruction along the Coastal Bend. According to NorthStar’s original petition,

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it entered into a master services agreement with Regional Pool Alliance (RPA), ultimately 

leading to a scope of work for services to be performed on government buildings impacted 

by Hurricane Harvey for Aransas County Independent School District, Taft Independent 

School District, Ingleside Independent School District, and Aransas County. The petition 

alleged that RPA failed to pay NorthStar $21,237,022.62 on construction remediation 

work performed.

NorthStar alleges that RPA acted as an agent on behalf of Aransas County, 

establishing vicarious liability and subjecting Aransas County to liability for RPA’s failure 

to pay. According to NorthStar, RPA received its authority to contract with NorthStar from 

Aransas County and the obligations agreed to by RPA were within the scope of authority 

granted to it by Aransas County. NorthStar sought actual damages, attorneys’ fees, court 

costs, and pre and post judgment interest.

1 Following the trial court’s denial of Aransas County’s plea to the jurisdiction, the trial court signed 

an order consolidating two cases filed by NorthStar: one against Aransas County and Aransas County 

Independent School District and one against HR&R, LLC, formerly known as HR&R Risk Management 

Group, LLC doing business as the Regional Pool Alliance Service Center (RPA). As such, there are two 

petitions in the record: one for each suit. Any reference to a petition in this case refers specifically to the 

petition filed against Aransas County and Aransas County Independent School District. Aransas County 

Independent School District is not a party to this appeal.
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B. The Plea to the Jurisdiction

Aransas County filed a plea to the jurisdiction, arguing that NorthStar’s petition 

failed to affirmatively demonstrate that the trial court had subject matter jurisdiction.

Specifically, Aransas County argued that various statutes waiving immunity for contract 

claims against local governmental entities did not apply to counties. See, e.g., TEX. LOC.

GOV’T CODE ANN. § 271.151(3) (“‘Local governmental entity’ means a political subdivision 

of this state, other than a county . . . .”) (emphasis added). In a supplemental filing, 

Aransas County argued that its immunity was not waived because it was not a party to a 

contract with NorthStar and reiterated its previous arguments.

C. The Response

NorthStar responded to Aransas County’s plea to the jurisdiction, arguing that it 

did not file suit pursuant to the statutes cited by Aransas County but instead under 

§ 262.007, which waives immunity for contract claims against a county when the county 

is a party to the contract. See id. § 262.007(a) (“A county that is a party to a written 

contract for engineering, architectural, or construction services or for goods related to 

engineering, architectural, or construction services may sue or be sued, plead or be 

impleaded, or defend or be defended on a claim arising under the contract.”). NorthStar 

also argued that, through § 262.001, Aransas County was a party to the contract through 

agency. See id. § 262.001(a)(1) (“The commissioners[’] court of a county may appoint an 

agent to make a contract on behalf of the county for erecting or repairing a county 

building.”); id. § 262.001(b) (“A contract or other act of an agent appointed under this 

section that is properly executed on behalf of the county and is within the agent’s authority 
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binds the county to the contract for all purposes.”).

NorthStar included eight exhibits with its response, which included: (1) NorthStar’s 

master services agreement with RPA; (2) NorthStar’s scope of work agreement for 

Aransas County Properties with RPA; (3) Aransas County’s Commissioners’ Court July 

16, 2016 workshop meeting minutes; (4) Aransas County’s Commissioners’ Court May 

23, 2022 amended meeting agenda, (5) a September 21, 2022 letter from Aransas 

County Attorney to its insurers, seeking cooperation for finalizing repairs relating to 

damage caused by Hurricane Harvey; (6) a September 30, 2022 letter from attorneys 

representing Aransas County’s insurers denying fault in any construction delays; (7) a 

concurrent resolution from the Texas Legislature granting Aransas County permission to 

file suit against RPA for its failure to pay contractors; and (8) a copy of Aransas County’s 

petition against RPA and its director. NorthStar argued that this evidence supported its 

claim that Aransas County authorized RPA to act as its agent.

D. The Ruling

After a hearing, the trial court denied Aransas County’s plea to the jurisdiction. This 

interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

II. STANDARD OF REVIEW AND APPLICABLE LAW

“Local governmental entities ‘enjoy governmental immunity from suit, unless 

immunity is expressly waived.’” Lubbock Cnty. Water Control & Imp. Dist. v. Church & 

Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014) (quoting Kirby Lake Dev., Ltd. v. Clear 

Lake City Water Auth., 320 S.W.3d 829, 836 (Tex. 2010)). “Governmental immunity 

includes both immunity from liability, ‘which bars enforcement of a judgment against a 
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governmental entity, and immunity from suit, which bars suit against the entity 

altogether.’” Id. If a local governmental entity enjoys governmental immunity, the trial court 

does not have subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 

S.W.3d 217, 225–26 (Tex. 2004).

A plea to the jurisdiction is a dilatory plea used “to defeat a cause of action without 

regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 

S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter

jurisdiction over a pleaded cause of action. Miranda, 133 S.W.3d at 226. “When a plea to 

the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts 

that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Id. We will 

liberally construe the pleadings and look to the pleader’s intent. Id. The plaintiff carries 

the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

“In responding to a jurisdictional plea, ‘the plaintiff must affirmatively demonstrate 

the court’s jurisdiction by establishing a valid waiver of immunity.’” Fraley v. Tex. A&M 

Univ. Sys., 664 S.W.3d 91, 97 (Tex. 2023) (quoting Gulf Coast Ctr. v. Curry, 658 S.W.3d 

281, 284 (Tex. 2022)). “To avoid dismissal, a plaintiff must establish that jurisdiction exists 

as a matter of law or raise a fact issue that overcomes the jurisdictional challenge that is 

intertwined with the merits.” Id. When the governmental entity challenges the trial court’s 

subject matter jurisdiction based on a failure to demonstrate a waiver of governmental 

immunity in the pleadings, we review the matter de novo. Id. “When either party adduces 

evidence in connection with a jurisdictional plea, the trial court should consider that 
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evidence in addition to challenges to the pleadings in confirming its jurisdiction.” Id.

In order to waive immunity, a plaintiff may not merely reference a statute’s 

elements, but must actually allege a violation of the statute by pleading facts that state a 

claim thereunder. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022). “If the 

pleading does not contain sufficient facts to demonstrate the court’s jurisdiction but also 

does not affirmatively demonstrate incurable defects, the plaintiffs are given an 

opportunity to amend.” Id. at 393. On the other hand, if the pleadings affirmatively negate 

jurisdiction, the plea should be granted without the opportunity to amend. Id.

It is up to the legislature to waive immunity for local governmental entities, and it 

must do so by “clear and unambiguous language.” Church & Akin, 442 S.W.3d at 301 

(citing TEX. GOV’T CODE ANN § 311.034). The legislature has created one such waiver for 

certain contract claims against a county:

A county that is a party to a written contract for engineering, architectural, 

or construction services or for goods related to engineering, architectural, 

or construction services may sue or be sued, plead or be impleaded, or 

defend or be defended on a claim arising under the contract. A suit on the 

contract brought by a county shall be brought in the name of the county. A 

suit on the contract brought against a county shall identify the county by 

name and must be brought in a state court in that county.

TEX. LOC. GOV’T CODE ANN. § 262.007(a). Moreover, the local government code provides 

the commissioners’ court of a county with authority to appoint an agent to enter into 

contracts to erect or repair country buildings on the county’s behalf. Id. § 262.001(a). “A 

contract or other act of an agent appointed under this section that is properly executed 

on behalf of the county and is within the agent’s authority binds the county to the contract 

for all purposes.” Id. § 262.001(b).
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III. ANALYSIS

A. NorthStar’s Pleadings

By its first issue, Aransas County argues that NorthStar failed to plead facts that 

would support a waiver of immunity. Specifically, Aransas County, for the first time on 

appeal, complains that

NorthStar’s pleading identifies no facts to support the conclusion that RPA 

was the County’s agent. . . . NorthStar does not identify the instrument that 

created the alleged agent-principal relationship. Nor does it identify the 

scope of the agency or the date when the agency was created. NorthStar’s 

allegations begin and end with the bare and conclusory allegation that “RPA 

and ARANSAS COUNTY had a principal-agent relationship.”

Matters of subject matter jurisdiction, including those that would normally be 

included in a governmental unit’s plea to the jurisdiction, may be considered for the first 

time on appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95–96 (Tex. 2012). 

However, if the plaintiff has not had a fair opportunity to address complaints or amend its 

petition, we “must construe the pleadings in favor of the party asserting jurisdiction, and, 

if necessary, review the record for evidence supporting jurisdiction.” Id.

In its original petition, NorthStar alleged that it entered into a contract with RPA, 

who acted as Aransas County’s agent, to restore Aransas County facilities following 

damage from Hurricane Harvey. NorthStar attached to its petition a copy of the master 

services agreement and the scope of work agreement. See TEX. LOC. GOV’T CODE ANN.

§ 262.001. NorthStar alleged that it performed restoration services on Aransas County’s 

properties pursuant to the contract and that RPA breached the contract by failing to pay, 

making Aransas County liable as the principal. See id. §§ 262.001, 262.007(a). 

Additionally, NorthStar’s request for damages is limited to those allowed by law. See id.
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§ 262.007(b) (limiting damages to the amount due and owed under the contract, 

reasonable and necessary attorney’s fees, and interest as allowed by law). Rather than 

merely reference a statute’s elements, NorthStar pleaded facts that would support a 

waiver of immunity. See Dohlen, 643 S.W.3d at 392–93. We disagree with Aransas 

County that NorthStar was required to identify an instrument appointing RPA as Aransas 

County’s agent or identify the scope of the agency. See id. at 392–93. Accordingly, 

Aransas County’s first issue is overruled.

B. NorthStar’s Evidence

By its second issue, Aransas County argues that the evidence attached fails to 

raise a genuine issue of material fact—that is, whether RPA acted as Aransas County’s 

agent. Aransas County elaborates on its argument by noting that NorthStar did not 

produce any evidence demonstrating that the commissioners’ court appointed RPA as its 

agent through an official act. We note, however, that Aransas County is making this 

argument for the first time on appeal; Aransas County did not challenge the alleged 

agency relationship through an evidentiary plea to the jurisdiction or a no-evidence motion 

for summary judgment. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550

(Tex. 2019) (permitting a challenge to the trial court’s jurisdiction through a no-evidence 

motion for summary judgment); Miranda, 133 S.W.3d at 227–28 (permitting a plea to the 

jurisdiction to challenge jurisdiction facts with supporting evidence).

Because Aransas County raises this issue for the first time on appeal, NorthStar 

has not had a fair opportunity to fully develop the record. See Rusk State Hosp., 392 

S.W.3d at 96. Accordingly, we first review the evidence in conjunction with the pleadings
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to determine whether jurisdiction has been affirmatively negated. See id. “[I]f the 

pleadings and record neither demonstrate jurisdiction nor conclusively negate it,” Aransas 

County must show that NorthStar “would be unable to show the existence of jurisdiction 

if the cause were remanded to the trial court and such opportunity afforded.” Id.

Having reviewed the evidence provided by NorthStar, we cannot say it affirmatively 

negates jurisdiction. See id. Although the evidence may not necessarily be sufficient to 

show that the Aransas County Commissioners’ Court formally voted to appoint RPA as 

its agent, as Aransas County argues is necessary, it does not conclusively disprove that 

such an action occurred or that the commissioners’ court did not otherwise appoint RPA 

as its agent.2 See id. Aransas County claims that the commissioners’ court “has never 

voted to join RPA,” and invites this Court to review past minutes of the commissioners’ 

court and take judicial notice of the result. However, we decline to comb through years of 

meeting minutes in order to search for an action that creates a fact question regarding 

whether the commissioners’ court appointed RPA as its agent. 

Because NorthStar’s pleadings and evidence do not affirmatively negate the trial 

court’s jurisdiction and Aransas County has failed to demonstrate that NorthStar would 

be unable to show the existence of jurisdiction on remand, we overrule Aransas County’s 

second issue.

2 This opinion should not be construed as setting out what must be done in order to appoint an 

agent pursuant to § 262.001(a) of the local government code. See TEX. LOC. GOV’T CODE ANN. § 262.001(a). 

Such a question is not presently before this Court and addressing the issue would constitute an advisory 

opinion. See Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 338

(Tex. 2017).
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IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

29th day of February, 2024.