Opinion filed July 25 , 20 2 4



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 3

- 00 10 5

- CV

__________ AMANDA BELLAMY , Appellant V. ALLEGIANCE BENEFIT PLAN MANAGEMENT, I NC
. , Appellee

On Appeal from t he 238 th District Court Midland County, Texas Trial Court Cause CV58440

O P I N I O N T his appeal concerns (1) the propriety of the trial court ’ s reconsideration, and subsequent grant , of the plea to the jurisdiction filed by Appellee, Allegiance Benefit Plan Management, Inc

. (Allegiance) , (2) the application of the principle of derivative governmental immunity, and (3) whether the trial court erred when it dismiss ed the2 c auses of action made against Allegiance by Appellant, Am anda Bellamy , as alleged in her p leadings

. 1 In the underlying action, Bellamy s ued Allegiance and other s (who are not parties to this appeal) for damages arising from the City of Midland ’s (the City) denial of the heal th care claim that she submitted to the City under the City’s self

funded insurance plan (the Plan)

. 2 Allegiance answered and filed its plea to the jurisdiction contending that the trial court did not have subject

- matter jurisdiction

over Bellamy ’ s asserted c auses of action because (1) Bellamy’s pleadings affirmatively negated the trial court’s subject

- matter jurisdiction to hear and decide the case , and (2) the jurisdictional evidence establishe d that Allegiance is immune from liabil ity and suit because it operated and functioned as a third

- party administrator to the P lan

. See Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226

– 27 (Tex. 2004)

. After a hearing, the trial court denied Allegiance ’ s ple a. Allegiance filed a motion to reconsider , and , upon reconsideration, the trial
court subsequently granted Allegiance ’ s plea and dismissed the c ause s of action that Bellamy asserted against Allegiance with prejudice

. Bellamy raises t wo issues on appeal: (1) the trial court abuse d its discretion when it reconsidered its previous denial of Allegiance ’ s plea ; and ( 2) the trial court

1 In her pleadings, Bellamy asserted causes of action against Allegiance for breach of contract, quantum meruit, promissory estoppel, violations of the T exas Tort Claims Act , common law fraud, breach of fiduciary duty, violations of the Texas Deceptive Trade Practices

- Consumer Protection Act ( DTPA ) , negligence, and violations of the Texas Insurance Code , all of which she alleged result ed from Allegiance’s wrongful denial of coverage for t he medical services she sought that Allegiance had determined to be “not medically necessary.” See T EX

. L OC

. G OV ’ T C ODE A NN

. §§ 271.151

– .153 (West 2016 ) ; T EX

. I NS

. C ODE A NN

. §§ 541.003, 541.060, 542.003 (West 2022 ) ; T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 38.001 (West Supp. 2023) , 41.003(a) (West 2015) , 101.001

– .109 (Wes t 2019 )

.

2 In her original petition, Bellamy filed suit against Allegiance Care Management, LLC

. , the City of Midland, and the City of Midland Administrative Services, none of whom are parties to this appeal. On August 11, 2022, Bellamy filed her first amended petition and join ed Allegiance as a party to her underlying suit. Bellamy subsequently nonsuited without prejudice the City of Midland Administrative Services and Allegiance Care Management, LLC ., on August 1 2 , 2022, and August 22, 2022, respectively.3 erred when it subsequently grant ed Allegiance’s plea because Allegiance is not immune from suit as a third

- party administrator to the P lan

. We affirm. I. Factual Background The City of Midland operates the Plan for its eligible employees and their eligible dependents

. The terms of the P lan are outlined in the “ S ummary P lan D escription ” document that is contain ed in the City ’s medical benefits booklet

. The City is the “Plan Sponsor” and is vested with the exclusive authority to make final claim and coverage determinations. T he Plan, the “Summary Plan Description,” a nd the “Administrative Services Agreement” that was execut ed by and between the City and Allegia n ce , designate Allegiance as the “Plan Supervisor” and describe Allegiance ’ s role with in the Plan

— to process insurance claims and to assist in the development, maintenance, and administration of the Plan

. The duties that the City delegated to Allegiance a re mini sterial in nature

— akin to how a third

- party administrator operates

. T he “Administrative Services Agreement” states that the City “wishes to contract with an independent third

- party administrator to perform certain administrative services with respect to the Plan ” and repeatedly refers to Allegiance

— who is a licensed third

- party administrator

— as a “TPA.” At the time her health care claim was submitted , Bellamy participa ted in and

was insur ed under the Plan

. 3 In her p leadings , Bellamy allege s that she ha s experienced “ pain on her left side, specifically the neck and shoulder ” which prompt ed her to consult with a physician regarding the cause of her symptoms

. Bellamy allege s that her chosen physician recommended that she undergo surgery ,

3 At the hearing on the plea s to the jurisdiction filed by the City and Allegiance , the trial court questioned counsel for the parties as to whether Bellamy , at the time her claim was submitted, was covered by her husband ’ s COBRA health coverage under the P lan

. Allegiance ’ s trial counsel stated that he “ [ did not] believe a coverage

. . . was denied based on the availability of coverage, [but the decision to deny ] was based on the medical necessity of the procedure

. ” On appeal, neither party contests that Bellamy was covered by the P lan.4 the purpose of which was two

- fold: (1) to a lleviate her symptoms and (2) to remove the surgical hardware that had been inserted in her spine from a prior surgery

. Pursuant to the P lan ’s requirements , Bellamy filed a claim and request ed that the Plan cover the costs associated with th is surgery. According to Bellamy, around September 21, 2020 , she was notified by Allegiance that he r claim was denied , based on the determin ation that the recommended surgery was “not medically necessary

. ” Bellamy appealed the denial of her claim t o a “ First Level of Benefit Determination Review , ” as described in the Plan ; however , on December 22, 2020 , her claim was denied at this stage of the process

. After thi s deni al , Bellamy sought a “ Second Level of Benefit Determination Review ” or a “second level appeal” to the Director of Administrative Services of the City , which also included a review by an independent company, Advanced Medical Reviews, to determine whether the surgical procedure recommended by her chosen physician was “ medically necessary

. ” After conducting its independent review, Advanced Medical Reviews determined that the recommend ed surgery was not medically necessary because it was deem ed to be “ [ e ] xperimental/ [ i ] nvestigational” as defined by the Plan. On March 24, 2021, the Director of Administrative Services of the City sent a letter to Bellamy notif ying her that after a “second level appeal” consideration , her claim and request for coverage and benefits for the recommend ed
surgery was , again , denied

. In this letter, Bellamy was also informed that she could
pursue an independent external medical review of the denial de termination s under the terms of the Plan , but she did not do so

. On August 11, 2022, Appellant filed her first amended petition and joined Allegiance and the City as defendants to her suit

. On August 19, 2022, Allegiance filed its original answer to Bellamy ’ s first amended petition and its plea to the jurisdiction ; on August 25, 2022, the City fil ed its plea to the jurisdiction

. The trial
court scheduled a hearing for both pleas for September 22, 2022.5 T he day before the hearing , Bellamy filed her second amended petition

— which included five additional causes of action that she asserted against the City and Allegiance

— and a response to both pleas

. On the day of the hearing , multiple documents were filed by the parties, including (1) t he City ’ s supplemental plea ; (2) Bellamy ’ s third amended petition ; (3) Allegiance ’ s joind er to the City ’ s original and supplemental plea s ; (4) Allegiance ’ s reply brief to Bellamy ’ s response to its plea ; and (5) the City ’ s second supplemental plea. T he trial court then held the hearing on the pleas later that day

. Following the hearing , the City filed supplemental evidence in support of its plea. On October 5 , 2022, the trial court sign ed its order granting the City’s plea and denying All egiance ’ s plea

. Following the trial court’s ruling s , the City filed a motion to sever, which the trial court granted , so that the trial court’s written ruling in the City’s favor could become final and appealable

. In light of the severance, the only remaining parties to the underlying suit were Bellamy and Allegiance. On January 20, 2023, Allegiance filed a motion for reconsideration requesting that the trial court reconsider its previous denial of Allegiance’s plea

. T he trial court s et a hearing on Allegiance ’ s motion for March 2, 2023 ; however, on February 8, 2023, the trial court sign ed its order grant ing Allegiance ’ s motion for reconsideration and plea to the jurisdiction. This appeal followed. II. Standard s of Review and Applicable Law A. Motion for Reconsideration We review a trial court ’ s decision to grant or den y a motion for reconsideration under an abuse of discretion standard. Tex. Petroleum Land Mgmt

. , LLC v. McMillan , 641 S.W.3d 831, 850 (Tex. App.

— Eastland 2022, no pet. ); Methodist Hosps. of Dallas v. Corp

. Communicators, Inc. , 806 S.W.2d 879, 883 (Tex. App.

— Dallas 1991, writ denied) ; see also Udcoff v. Castille , No. 11

- 04

- 00274

- CV, 2006 WL 2075244, at *9 (Tex. App.

— Eastland July 27, 2006, no pet.)6 (mem. op.)

. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles in reaching its ruling, or if its ruling is not supported by legally or factually sufficient evidence. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985) ; Kendrick v. Garcia , 171 S.W.3d 698, 703 (Tex. App.

— Eastland 2005, pet. denied) (citing Walker v. Packer , 827 S.W.2d 833, 839

– 40 (Tex. 1992))

. B

. Plea to the Jurisdiction B efore a trial court may decide a case, it is essential that the trial court possess subject

- matter jurisdiction. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 553

– 54 (Tex. 2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to challenge a trial court ’ s subject

- matter jurisdiction. Id. at 554. Whether a trial court has subject

- matter jurisdiction to decide a case is a question of law that we review de novo. Harris Cnty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018) (citing Miranda , 133 S.W .3d at 226); Ector Cnty. v. Breedlove , 168 S.W.3d 864, 865 (Tex. App.

— Eastland 2004, no pet.). The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action without reaching the merits. Blue , 34 S.W.3d at 554. A plea to the jurisdiction can take two forms: (1) a challenge to the plaintiff ’ s pleadings regarding the allegations of jurisdictional facts , or (2) an evidentiary challenge to the existence of jurisdictional facts. Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 635 (Tex. 2012); Miranda , 133 S.W.3d at 226

– 27. Thus, the plea may challenge the pleadings, the existence of jurisdictional facts, or both. 4 Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v. Copeland , 561 S.W.3d 720, 723 (Tex. App.

— Eastland 2018, pet. denied).

4 In its plea, Allegiance challenged both , namely that : (1) the state of Bellamy ’ s pleadings regarding he r allegations of jurisdictional facts, and (2) the existence of jurisdictional facts. We note that the trial court, in its order granting Allegiance ’ s plea, did not specify which challenged jurisdictional ground alleged by Allegiance that it granted , nor did the trial court articulate its reasons for granting the plea.7 When the plea challenges the plaintiff ’ s pleadings, we must determine if the pleader has alleged facts that affirmatively demonstrate the trial court ’ s jurisdiction to hear and decide the case; in this regard, the plaintiff bears the burden to allege such facts that affirmatively demonstrate the trial court ’ s subject

- matter jurisdiction. Tex. Dep ’ t of Crim. Justice v. Rangel , 595 S.W.3d 198, 205 (Tex. 2020); Miranda , 133 S.W.3d at 226. Therefore, we must accept as true all factual allegations in the plain tiff ’ s pleadings, construe them liberally in the pleader ’ s favor, and look to the pleader ’ s intent. Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 8 (Tex. 2015); Cnty. of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Tex. Mun. League Intergovernmental Risk Pool v. City of Abilene , 551 S.W.3d 337, 342

– 43 (Tex. App.

— Eastland 2018, pet. dism ’ d). If the allegations create a fact question regarding jurisdiction, a trial court may not grant the plea because the factfinder must resolve the fact issue. Rangel , 595 S.W.3d at 205; Tex. Ass ’ n of Sch. Bds. Risk Mgmt. Fund v. Colorado Indep. Sch

. Dist. , 660 S.W.3d 767, 771 (Tex. App.

— Eastland 2023, no pet.). But if the pleader fails to raise a fact question on the jurisdictional issue, the trial court may rule on the plea as a matter of law. Rangel , 595 S.W.3d at 205. On the other hand, w hen the plea challenges the existence of jurisdictional facts , we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject

- matter jurisdiction and the merits of a claim. Clark , 544 S.W.3d at 770

– 71 (citing Blue , 34 S.W.3d at 555) ; Weatherford In t’ l, LLC v. City of Midland , 652 S.W.3d 905, 912 (Tex. App.

— Eastland 2022, pet. denied)

. “ In such cases, the standard of review mirrors that of a tradi tional summary judgment. ” Clark , 544 S.W.3d at 771 (citing Miranda , 133 S.W.3d at 225

– 26). Thus, if the plaintiff ’ s factual allegations are challenged with supporting evidence that is necessary to the consideration of the plea, the plaintiff must raise at8 least a genuine issue of material fact to overcome the challenge to the trial court ’ s subject

- matter jurisdiction and avoid dismissal. Id. (citing Miranda , 133 S.W.3d at 221). “ In determin ing whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff ’ s favor.” Id. (citing Miranda , 133 S.W.3d at 228). We cannot, however, disregard evidence that is necessary to show context; nor can we disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id. (citing City of Keller v. Wilson , 168 S.W.3d 802, 811

– 12, 822

– 23, 827 (Tex. 2005)). C

. Governmental Immunity Sovereign immunity and its counterpart, governmental immunity, exist to protect the State, its agencies, and its political subdivisions from lawsuits and liability for money damages. Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006); Tex. Nat. Res. Conservation Comm’n v. I T

- Davy , 74 S.W.3d 849, 853 (Tex. 2002 ) . Governmental immunity is derived from the State ’ s sovereign immunity. Therefore, the State ’ s political subdivisions, which include units of local government, such as the City, are afforded the same immunity protections as the State. City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011). Governmental immunity embraces two concepts: immunity from suit and immunity from liability. Reata , 197 S.W.3d at 374; Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). Governmental immunity deprives a trial court of subject

- matter jurisdiction for actions in which certain governmental units have been sued unless the unit has expressly consent ed to suit. Reata , 197 S.W.3d at 374 ; Miranda , 133 S.W.3d at 224 ; Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 696 (Tex. 2003)

. On the other hand, immunity from liability is an affirmative defense, not a matter of subject

- matter jurisdiction; however, this immunity must also be waived. State v. Lueck , 290 S.W.3d 876, 880 (Tex. 2009); Miranda , 1339 S.W.3d at 224. Because immunity from suit defeats a trial court ’ s subject

- matter jurisdiction, it is properly raised in a plea to the jurisdiction. Dohlen v. City of San Antonio , 643 S.W.3d 387, 392 (Tex. 2022); Miranda , 133 S.W.3d at 225

– 26. By challenging a governmental unit ’ s assertion of immunity, a plaintiff may overcome a governmental unit ’ s immunity defense only if the plaintiff demonstrates that the legislature has clearly and unambiguously waived the unit ’ s immunity by
statute. Rattray v. City of Brownsville , 662 S.W.3d 860, 865 (Tex. 2023); Dohlen , 643 S.W.3d at 392 (citing Tooke , 197 S.W.3d at 330). Without such a waiver, the trial court lacks subject

- matter jurisdiction to proceed, and the c auses of action alleged against the governmental unit are barred. Rattray , 662 S.W.3d at 865. Accordingly, the trial court must dismiss the suit if the plaintiff cannot satisfy the burden of affirmatively demonstrating the trial court ’ s subject

- matter jurisdiction to hear and decide the case by showing that the causes of action asserted by the plaintiff fall within a statutory waiver of immunity. Id. F or purposes of the matter before us , it is significant that g overnmental immunity may also appl y and extend to protect private companies who contract with the State or other governmental entit ies under certain circumstances. Brown & Gay Eng ’ g, Inc. v. Olivares , 461 S.W.3d 117, 124 (Tex. 2015) (quoting K.D.F. v. Rex , 878 S.W.2d 589, 597 (Tex. 1994) ( h olding that a private company that “ ‘ operate[ d ] solely upon the direction of [the system] ’ and ‘ exercise[ d ] no discretion in its activities ’ was indistinguishable from the system, such that ‘ a lawsuit against one [wa]s a lawsuit against the other. ’ ” ) ) ; see Foster v. T chr. Ret

. Sys

. , 273 S.W.3d 883 , 889

– 90 (Tex. App.

— Austin 2008, no pet.) (extending immunity to Aetna f or claims that ar ose from the denial of health coverage based on the relationship between the state agency and Aetna , who w as the administrator of the state agency ’ s health plan ). Thus, a private company may be protected from liability and suit under the principle of derivative governmental immunity unless (1) the legislature has expressly and10 unambiguously waived , as to a plaintiff ’ s asserted c auses of action , the immunity of the governmental entity t hat the private company has contracted with or (2) the private company ’ s actions on behalf of a government al entity do not support an extension of immunity. See Dohlen , 6 43 S.W.3d at 392 (citing Tooke , 197 S.W.3d at 330); Olivares , 461 S.W.3d at 124; Foster , 273 S.W.3d at 889

– 90; see also Chambers

- Liberty Cnty s . Navigation Dist. v. State , 575 S.W.3d 339, 344 (Tex. 2019). III. Analysis Bellamy raises two issues on appeal: (1) the trial court abused its discretion when it reconsider ed its denial of , and subsequently granted, Alliance ’ s plea because Allegiance’s motion to reconsider was f iled more than thirty days after the trial court sign ed its order den ying Allegiance ’ s plea ; and (2) the trial court erred when it grant ed Allegiance’s plea because Allegiance is not immune from suit as a third

party administrator to the P lan

. A. The Trial Court’s Reconsideration of its Interlocutory Ruling In Bellamy ’ s first issue , she argues that the trial court abused its discretion when it reconsidered its previous denial of Allegiance’ s plea and granted Allegiance’s motion for reconsideration because , according to her , a motion for reconsideration should be treated the same procedurally as a motion for new trial or a motion to modify a judgment

. A s such , and in that context, Bellamy avers that A llegiance was required to file its motion for reconsider ation within thirty days after the trial court sign ed its order deny ing Allegiance’s plea

. Consequently , Allegiance ’ s motion for reconsideration , Bellamy argues, was “untimely” because it was filed on January 20, 2023

— more than thirty days after the trial court denied Allegiance ’ s plea by written order on October 5 , 2022

. Additionally, Bellamy argues that Allegiance ’ s motion for reconsideration did not include “new evidence , ” which she claims wa s necessary for the trial court to extend the thirty

- day filing11 deadline that pu rportedly applies to the filing of Allegiance ’ s motion for reconsideration

. G eneral ly , “a trial court has plenary jurisdiction to reconsider its interlocutory rulings

. . . and [it] retains that [jurisdiction] until a final judgment or order is entered in the cause and the [judgment or order] becomes final .” White v. Baptist St. Anthony ’ s Hosp. , 188 S.W.3d 373, 374 –75 (Tex. App.

— Amarillo 2006, pet. denied) (regarding a motion to dismiss); see McMillan , 641 S.W.3d at 850 ( affirming the trial court’s grant of a motion for reconsideration and holding that a trial court may reconsider issues previously adjudicated until the trial court loses plenary power over those issues); see also Solcius, LLC v. Meraz , No. 08

- 22

- 00146

- CV, 2023 WL 2261414, at *2 n.4 (Tex. App.

— El Paso Feb. 27, 2023, no pet.) (mem. op.)

. W e are

un aware of any opinion , rule of procedure , or other authority, and Bellamy has not pointed to or directed us to any, that requires that a motion for reconsideration must be filed within thirty days of the trial court’s signing of an interlocutory order , as Bellamy suggests

. Therefore, and i n this context , we hold that such a requirement

or deadline does not exist , and we decline to impose one

. Here, the trial court’s October 5, 2022 order , which recite s it s den ial of Allegiance’s plea , is an interlocutory ruling upon which there is no finality

. 5 Thus, the trial court had the discretion and the authority to reconsider its previous ruling that denied Allegiance ’ s plea until i t no longer retained plenary power over the issue. In re Tex. Conf. of Seventh

- Day Adventists , 652 S.W.3d 136, 142 (Tex. App.

— Fort Worth 2022, no pet.); McMillan , 641 S.W.3d at 850.

5 Although Allegiance had the option and may have considered fil ing an interlocutory appeal from the trial court’s initial denial of its plea, its decision not to do so d id not deprive the trial court of jurisdiction and the authority to reconsider its interlocutory rulings. See Bonsmara Nat

. Beef Co., LLC v. Hart of Texas Cattle Feeders, LLC , 603 S.W.3d 385, 393

– 94 (Tex. 2020) (citing State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez , 82 S.W.3d 322, 325

– 26, 331 (Tex. 2002)) ; see also C IV

. P RAC

. & R EM

. § 51.014 (a) (8)

.12 T he cases that Bellamy cite s in support of her argument are readily distinguishable and inapplicable to the case before us

. See , e.g. , Padilla v. LaFrance , 907 S.W.2d 454, 458

– 5 9 (Tex. 1995) (holding that because the motion for reconsideration was filed before the trial court ordered the counterclaim to be severed, the motion for reconsideration “qualifie [ d ] as a premature motion to modify the judgment ” and should be treated as a modification to the judgment or a motion for new trial); Fox v. Wardy , 318 S.W.3d 449, 451 n.1 (Tex. App.

— El Paso 2010, pet. denied) (holding that the substance of a pro se litigant ’ s motion for reconsideration, when construed liber ally by the trial court , was a motion for new trial); Adams v. Ross , No. 01

- 15

- 00315

- CV, 2016 WL 4128335, at *2 (Tex. App.

— Houston [1st Dist.] Aug. 2, 2016, no pet. ) (mem. op.) (holding that courts generally

“ treat a motion for reconsideration that seeks modification or reversal of a judgment as a motion for new trial ”). In this case, unlike the cases upon which Bellamy relies, Allegiance’s motion for reconsideration only addressed and sought the trial court’s reconsideration of it s previous interlocutory ruling and denial of Allegiance’s plea; the motion did not seek to modify or vacate a final judgment

. This is a significant distinction. Bellamy further argues that Allegianc e ’s motion for reconsideration was deficient because “no new evidence” was presented with it

. However, the re is no requirement that a movant ’s motion for reconsideration be supported by or based on “new evidence.” A s Bellamy concedes in her brief, because Allegiance did not submit any new evidence with its motion for reconsideration , this motion cannot be construed as a motion for new trial based on newly discovered evidence

. Hermosillo v. K. Hovnanian Homes

- DFW, LLC , 329 S.W.3d 181 , 183

– 8 5 (Tex. App.

— Dallas 2010, no pet.)

. We conclude that t he trial court did not abuse its discretion when it reconsider ed its previous interlocutory ruling and order that denied Allegiance ’ s plea13 to the jurisdiction because i t retain ed the plenary power to do so until the judgment that involved and affected Bellamy and Allegiance bec a me final

. See McMillan , 641 S.W.3d at 8 50; White , 188 S.W.3d at 374

– 7 5

. H ere , the trial court did not sign a final judgment when it initially denied Allegiance’s plea . As such, in this

recons ideration context, t h e element of “finality” did not exist. Until “ finality” attach e d , the deadlines advanced by Bellamy as it pertains to Allegiance’s motion for reconsideration w ould not be triggered

. Accordingly, w e overrule Appellant ’ s first issue on appeal. B. Allegiance’s Plea to the J urisdiction In her second issue, Bellamy arg ues that : ( 1 ) the trial court erred when it grant ed Allegiance’s plea to the jurisdiction because Allegiance was not the administrator of the Plan and therefore cannot rely on and is not afforded the same immunity protections as a government al entity ( here, the City ) ; and ( 2 ) the trial court erred when it dismiss ed with prejudice the causes of action that she asserted against Alleg iance because the trial court failed to provide her an opportunity to amend her pleadings to cure any deficien c ies

. 6 1. Does Governmental Immunity Apply to Allegiance? Although Bellamy contends that the trial court erred when it grant ed Allegiance ’ s plea, she does not argue on appeal that governmental immunity was waived by either the City or Allegiance as to the c auses of action that she has assert ed

6 Bellamy also argue s that because “ [ Allegiance ] filed or submitted to [ Bellamy ] a [motion for] summary judgment in this case , ” which was an independent motion and did not incorporate Allegiance’s plea , this constitutes “ evidence ” that Allegiance “ knew ” it was not entitled to rely on the defense of government al immunity. However, Bellamy does not cite to any authority to support this a rgument on appeal. Further, although Bellamy refer s to a motion for summary judgment filed by a former defendant to th e underlying suit , Allegiance Care Management, LLC

. , as “ evidence” of Allegiance ’ s purported knowledge , she fails to cite to any authority or explain how this relates to Allegiance ’s plea or how this “knowledge” affects Allegiance’s immunity from suit as a third

- party administrator. Because thi s argument is devoid of any citations to appropriate authority , it is waived ; therefore, we will not address it

. See T EX

. R. A PP

. P. 38.1(i)

.14 against each party in the underlying suit. Instead, Bellamy on ly argues that the trial court erred in extending the shield of governmental immunity to Allegiance because (1) Allegiance i s not the “ P lan A dministrator” of the P lan, and (2) the question of “whether [Allegiance] is an Administrator should be a question of fact to be determined by a jury.” 7 B ecause the trial court foun d that the City i s immune from liability and suit, a finding that Bellamy has not challenged, we must look to the facts alleged in Bellamy ’ s pleadings and the jurisdictional evidence presented to the trial court to determine whether the protections of governmental immunity for which the City enjoys also extend s to and protects Allegiance as a third

- party administrator to the P lan. Rangel , 595 S.W.3d at 205. The City is a unit of local government and thus is immune f ro m suit unless such immunity has been expressly and unambiguously waived by the legislature. See L OC

. G OV ’ T § 271.151(3). However, a unit of local government does not waive its immunity from suit simply because it establishes , as the City did here, a self

funded insurance plan. See T EX

. G OV ’ T C ODE A NN

. §§ 2259.001, .002, .037 (West 2016 )

. I n this case, i t is undisputed that the City funded the Plan and that it contracted with Allegiance to be the “Plan Supervisor ” or the Plan’s third

- party administrator

. As such, the City did not waive its immunity from suit.

7 In its plea, Allegiance conten ds that (1) Bellamy’s pleadings affirmatively negate the trial court’s subject

- matter jurisdiction to decide this case , and (2) the jurisdictional evidence establishe s that it i s immune from liability and suit because it operated as a third

- party administrator to the P lan. See Miranda , 133 S.W.3d at 226

– 27. Within both arguments, Allegiance contend s that because it i s a “third

- party benefit plan administrator” to the P lan, and because Bellamy failed to allege any independent, wrongful conduct on behalf of Allegiance or its employees, it i s protected by the City’s governmental immunity. See Olivares , 461 S.W.3d at 126

– 27 (discussing Foster , 273 S.W.3d at 888

– 89). In further support of its plea, Allegiance cite s to several opinion s that h o ld that administrators of self

- funded governmental plans enjoy the same immunity from liability and suit as the governmental entity for which they contract with

. Importantly , Bellamy concedes on appeal that third

- party administrators for self

- funded government health plans, including municipal plans, are immune from liability and suit.15 Because of its relationship with the City , Allegiance argues that it is entitled
to assert and rely on the principle of derivative governmental immunity

. In this context, Allegiance posit s , and Bellamy concedes, that Texas courts have uniform ly held that a private co mpany acting in the role as a third

- party administrator to a n insurance program that is funded by the S tate or an other governmental entit y is , like the governmental entity for which it contracts, immune from liability and suit. See Foster , 273 S.W.3d at 88 5

– 9 0 (extending immunity to Aetna Health Management, LLC as a third

- party administrator); see also Stegall v. TML Multistate Intergovernmental Emp. Benefits Pool, Inc. , No. 05

- 18

- 00239

- CV, 2019 WL 4855226, at *5 (Tex. App.

— Dallas Oct. 2, 2019, no pet.) (mem. op.) (extending immunity to UMR, Inc. as a n administrator for the TML Multistate Intergovernmental Employee Benefits Pool, Inc. ’s intergovernmental self

- insurance risk pool ) ; United Healthcare Choice Plus Plan for City of Austin Emps. v. Lesniak , No. 03

- 15

- 00309

- CV, 2015 WL 7951630 , at *2

– 3 (Tex. App.

— Austin Dec. 1, 2015, pet. denied) (mem. op.) ( extending immunity to United HealthCare Services, Inc.

as an administrator of the City ’ s self

- funded health p lan ) ; Humana Ins. Co. v. Mueller , No. 04

- 14

- 00752

- CV, 2015 WL 1938657 , at * 2, 5 (Tex. App.

— San Antonio Apr. 29, 2015, pet. denied) (mem. op.) (extending immunity to Humana , who was the “Plan Manager” of the City of San Antonio Housing Authority ’ s self

funded health care plan ) ; see also McAllen Anesthesia Consultants , P.A. v. United Healthcare Servs., Inc. , No. 7:14

- CV

- 913, 2015 WL 9257154, at *8 (S.D. Tex. Dec. 14, 2015) ( extending immunity to the third

- party administrator of the Employees Retirement System of Texas ’ s (ERS) health insurance plan because final decisions on benefit payments re sted with ERS)

. Simply put, in circumstances such as th ese, courts have held that the governmental unit’s immunity protections extend
to and may be asserted by the third

- party administrator that i s retain ed to supervise the unit’s self

- funded insurance plan

. This is so because a third

- party administrator’s16 entitlement to immunity is “derived” from the governmental unit’s assertion of immunity. We agree with this rationale. The circumstances before us are similar to those in Fost e r
. In Foster , a retired teacher sued the Teacher s Retirement System of Texas (TRS), a s tate agency, and Aetna, a private company retained by TRS to act in the capacity as the administer of TRS ’ s insurance plan, for breach of contract, breach of the duty of good faith and fair dealing, violations of the insurance code, and violations of the DTPA , after Aetna denied the retired teacher ’ s claim for health benefits

. See Foster , 273 S.W.3d at 885, 889. T he T hird C ourt of A ppeals conclud ed that the legislature had not waived TRS ’ s immunity from the retired te a cher ’ s suit

. Id. at 888. The court , in consider ing whether Aetna , as a private entity, was similarly protect ed and immune from suit under the doctrine of sovereign immunity , hel d that Aetna was also immune from suit because “Aetna simply provide[d] administrative services to facilitate the provision of health care to [covered] retirees

. ” Id

. at 888

– 9 0. In concluding that Aetna was immune from suit as a third

- party plan administrator , the court i n Foster looked to Aetna ’ s contract with TRS , which provided that (1) the insurance plan was fully funded by the State, (2) Aetna had no financial stake in the approval or denial of claim s , (3) TRS agreed to indemnify Aetna in connection with its actions and performance under the contract , ( 4 ) Aetna had the “discretionary authority” to carry out its specified duties, and ( 5 ) Aetna act ed as TRS ’s agent for the benefit of TRS

. Id. ; see also Olivares , 461 S.W.3d at 127 (discussing Foster ). Each of the above particulars was c entr al to the court’s immunity determination. Additionally, the court stated that “[t] o hold otherwise would implicate State funds and expose Aetna to liability from which its principal is protected and, more importantly, would undercut the public policy that favors allowing the State to contract with private entities to more efficiently provide services to government employees .” Foster , 273 S.W.3d at 890. Based on similar17 facts, o ther court s have also extended immunity protection s to private entities that
act in the capacity as a third

- party administrator for a governmental unit for the same

reasons announced in Foster

. See Stegall , 2019 WL 4855226, at *5 ; Lesniak , 2015 WL 7 95 1630 , at * 2

– 3 ; Mueller , 2015 WL 1938657, at * 2, 5

. With th e s e principles in min d , we now address whether the facts alleged in Bellamy ’ s pleadings and the jurisdictional evidence presented to the trial court establish that Allegiance is a third

- party administrator to the P lan. W e begin our analysis by looking to Bellamy ’ s pleadings for “facts that affirmatively demonstrate the [trial] court ’ s jurisdiction to hear [and decide] the cause.” Tex. Ass ’ n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993)

. In her pleadings, Bellamy a ssert s multiple c ause s of action against the City and Allegiance , all which arise from the denial of her health care c laim that she alleges should have been covered b y the Plan. I n a ssert ing these c auses of action , Bellamy

— throughout her pleadings

— fails to distinguish between the conduct that is attributable to the City and to Allegiance and she frequently refer s to the two entities collectively as “defendants

. ” Bellamy also alleg e s in her pleadings that “[Allegiance] is the ‘ supervisor ’ of the plan, [and is respon sible for] processing claims for the City

. ” (emphasis added)

. H owever, while Bellamy does not explicitly allege that Allegiance is either acting on its own volition or independent of the City’s direction in the resolution of her health care claim , she does allege that Allegiance, not the City, was the entity who “made determinations of which claims were accepted and which ones were denied

. ” Allegiance contends that because Bellamy allege s that the City is a governmental entity , as a consequence Allegiance is entitled to asse r t and rely on the defense of derivat iv e governmental immunity ; therefore, her pleadings affirmatively negate the trial court’s subject

- matter jurisdiction to hear and decide this case. However , the question that we must address on this point is whether the facts and18 allegations recited in Bellamy’s pleadings , without more, when taken as true and
constru e d liberally in her favo r , necessarily demonstrate s that Allegiance , as “ the P lan S upervisor , ” is shielded and protected from suit by the City’s governmental immunity like the third

- party administrator was in Foster

. See F oster , 273 S.W.3d at 888

– 9 0

. Although we answer “Yes” to this question, b ased on the circumstances presented here , and because Allegiance also challenged the existence of jurisdictional facts in its plea, we believe it is prudent in this instance t o examine the jurisdictional facts and evidence to determine whether the trial court ha s subject

matter jurisdiction to hear and decide this case

. See Blue , 34 S.W.3d at 554 (“[B]ecause a court must not act without determining that it has subject

- matter jurisdiction to do so, it should [consider] evidence as necessary to determine the issue before proceeding with the case.”) ; see also Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019). As we have said, Bellamy concedes that third

- party administrators in this
context are generally immune from liability and suit

. Nevertheless, i n referr ing to the jurisdictional facts and evidence in the record , Bellamy argues on appeal that Allegiance was not a third

- party administrator to the P lan ; thus , she contends, it would not be entitled to rely on the defense of derivative governmental immunity, because (1) the cases cited and relied on by Allegiance in its plea pertain to “third party administrators” and are inapplicable here because Allegiance was only the “Plan Supervisor” under the Plan and not the Plan’s third

- party administrator ; (2) the agreements and documents that pertain to Allegiance ’ s role under the Plan contain “contradictory” terms , which should be construed in Bellamy ’s favor ; (3) these contradictory terms are a “question of fact to be determined by a jury” and are not “ministerial ” duties; ( 4 ) Allegiance did not perform a “ ministerial duty ” when it denied Bellamy ’ s claim on “multiple occasions ; ” and (5) other documents refer to Allegiance as a “ [ c ] ase [ m ] anagement company” or an “insurance company , ” and19 show that “Allegiance associates themselves with CIGNA insurance [] [thereby] contradicting [ Allegiance ’ s ] claim that they are not an insurance company

. ” W e note , again, that Bellamy does not cite to an y opinion or other authority in support of these argument s
. Rather, Bellamy’s arguments are nothing more than bare assertions. See T EX

. R. A PP

. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”)

. I n response , Allegia nce contends that Bella m y’s arguments fail because ( 1 ) the “ Administrative Services Agreement ” between it and the City consistently refers to Allegiance as a “TPA” or the administrator to the P lan , ( 2 ) the distinction that Bellamy claims exists between an “ A dministrator ” and Allegiance ’ s role and title (Plan Supervisor) in this case is an improper attempt to “elevate form o ver substance” and is not relevant to its immunity defense , and (3) the Plan documents conclusively establish that the responsibilities of Allegiance as the “ Plan Supervisor” are analogous to the responsibilities that are routinely delegated to “administrators” and “managers” in these settings , which in turn have resulted in the extension of immunity protection to private entities

— third

- party administrators

— who assist in the administration of a self

- funded government insurance program even though the

“ administrative title ”

— i.e., manager, administrator, etc

. — may vary
. See Foster , 273 S.W.3d at 888

– 90; Stegall , 2019 WL 48 55226 , at *5; Lesniak , 2015 WL 7951630 , at * 2

– 3 ; Mueller , 2015 WL 1938657, at * 2 , 5

. We agree. In this case , Bellamy s ought to recover damages from the City based on its contractual relationship and indemnity agreement wit h Allegiance

. T he “plan documents”

— the Plan itself and the Administrative Service s Agreement

— indicate that the responsibilities delegated to Allegiance align with the responsibilities that

we re delegated and assigned to the “administrators” in the cases cited by Allegiance. I t is undisputed that t he City cr e at ed and funded the P lan and solely retained the right20 to amend or modify it at any tim e

. Under the terms of the Plan, the “ P lan S upervisor ”

— Allegiance

— is employed by the Plan to provide consulting services and perform other functions, including assisting with t he processing and payment of claims . In this regard, Allegiance was only authorized to provide ministerial du ties, it was not permitted to exercise any discretion over the P lan ’s assets , and i t was not considered to be a fiduciary under s tate or federal law s or regulation s
. Further, Allegiance was not responsible for funding the Plan, nor did Allegiance have any financial stake in it

. With reference to t he Administrative Service s Agreement , the document states that the City intended to contract with an independent third

- party administrator

— A llegiance

— to perform certain administrative services with respect to the Plan

. T he City delegate d only non

- discretionary authority to Allegiance to assist in the development, maintenance, and administration of the Plan , and it agreed
to indemnif y Allegiance against all claims, suits, or liabilities that may arise from Allegiance’s performance under the Plan

. The Agreement also states , very clearly, that “[t]his Agreement shall not be deemed a contract of i nsurance under any laws or regulations.” W hile Allegiance was required to assist the City in processing claims under the P lan, the City retain ed the sole authority to make the final determinations regarding claim coverage, the appeal s of denied c laims , and the operation and administration of the Plan

— which includ ed Bellamy’s claim in the present case

. Although Allegiance agreed to provide initial claim adjudication recommenda tions and to assist the City with claim appeals , the Agreement directed Allegiance to refer any doubtful, disputed, or appealed claims to the City for any final decision regarding the processing and adjudication of the se claim s
. Here, contrary to Bellamy’s assertion, t he record shows that the D irector of A dministrative S ervices of the City , not Allegiance, denied Bellamy’s claim at the “second level21 appeal ” stage; Allegiance lacked the independent discretion to deny Bellamy’s claim without further review by and authorization from the City. Although Bellamy is correct in her assertion that the Plan designates Allegiance as the “ P lan S upervisor” and the City as “the P lan S ponsor,” Bellamy fails to point to any authority to support the argument that the designation of a party’s

name or title in a contract , alone , defeat s th at party’s defense of governme n tal immunity . R ather , courts look to the terms of the contract and the claims asserted by the plaintiff to determin e whether governmental immunity extends to and protects

a private enti ty that acts in the capacity as an administrator for a governmental unit , thereby shielding the administrator from liability and suit

. See Foster , 273 S.W.3d
at 88 8

– 90 ; Stegall , 2019 WL 48 55226, at *5; Lesniak , 2015 WL 7951630, at *2

– 3 ; Mueller , 2015 WL 1938657, at * 2, 5

. L ike Foster , the record before us shows that : (1) the P lan is fully

- funded by the City ; (2) Allegiance had no financial stake in the approval or denial of a ny claim that was submitted to the City by a p lan participant ; (3) although Allegiance could interpret the P lan ’s provisions , it only perform ed administrative services in the capacity as a third

- party administrator

— the development, maintenance and administration of the Plan

— for and on behalf of the City ; (4) Allegiance ha d “no discretionary authority” to deny claims p ursuant to the Administrative Service s Agreement , which expressly limits Allegiance’s discretionary authority ; ( 5 ) the City retained sole discretionary authority to interpret and apply the Plan’s provisions and
to den y the claims that were submitted by p lan participants through out the claim s / appeal s process ; ( 6 ) the City agreed to indemnify Allegiance from any claim asserted against it based on i ts performance under the agreement; ( 7 ) as Bellamy’s claim was process ed, Bellamy did not allege that Allegiance exceeded the scope of the authority delegated to it by the City under the Plan ; and ( 8 ) in her asserted c ause s of action , Bellamy effectively seek s to recover from a governmental entity, the City ,22 who had the ultimate authority over the disposition of these claims. These facts are undisputed and support Allegiance’s argument that it is entitled to derivative governmental immunity

. W hile the P lan documents in this case do not expressly de no te Allegiance , albeit by title or otherwi s e , as the “ P lan A dministrator , ” we conclude that Allegiance is the third

- party administrator of the Plan

. Allegiance ’s role and authority in administering the Plan is analogous to and consistent with c i r cumstance s where
courts have extended the protections of governmental immunity to a private entity who acts in the capacity as an administrator for a government al unit, a concept that we adopt today

. See Foster , 273 S.W.3d at 889

– 90 ; Stegall , 2019 WL 4855226 at

* 5 ; Lesniak , 2015 WL 7951630 at *3 ; Mueller , 2015 WL 1938657 at *5 ; see also Olivares , 461 S.W.3d at 126

– 27 (discussing Foster ). Thus, because Allegiance is a third

- party administrator to the City’s self

- funded Plan , and for the public policy reasons articulated in Foster , with which we agree, we conclude that Allegiance is afforded the same protections of governmental immunity that the City enjoys and is thus immune from the suit and causes of action that Bellamy has asserted against it

. See Foster , 273 S.W.3d at 890. For the reasons stated above , we hold that the trial court did not err when it grant ed Allegiance’s plea to the jurisdiction because (1) Bellamy ’s pleadings affirmatively negate the trial court’s subject

- matter jurisdiction to hear and decide th is case and (2) Bellamy has failed to raise a genuine issue of material fact to defeat Allegiance’s challenge to the trial court’s subject

- matter jurisdiction. Clark , 544 S.W.3d at 770

– 71. 2. Bellamy ’ s O pportunity to A mend Finally, Bellamy argue s that the trial court erred when it did not gran t her the opportunity to amend her pleadings to cure any deficiencies . In support, she cites to C

ounty of Cameron v. Brown for the proposition that “if there is a failure in the23 [p] leading, and the failure of the pleading can be cured by amending the pleading, the Appellant must be given an opportunity to amend.” See Brown , 80 S.W.3d at 555. Generally, if a plaintiff does not allege sufficient facts to affirmatively establish a trial court ’ s subject

- matter jurisdiction and if any such pleadin g defects
may be cured by a pleading amendment, then a plaintiff should be afforded the opportunity to amend. Miranda , 133 S.W.3d at 226

– 27. How ever, if a plaintiff ’ s pleading affirmatively negate s the existence of the trial court ’ s subject

- matter jurisdiction to hear and decide the case , it is appropriate to deny a plaintiff the opportunity to amend. Id

. at 227 ; Lee v. Gaines Cnty. Sheriff ’ s Off. , No. 11

- 18

- 00173

- CV, 2020 WL 4379157, at *5 (Tex. App.

— Eastland July 31, 2020, no pet. ) (mem. op.)

. Moreover , t he Texas Supreme Court has held that “[i]f a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff ’ s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff ’ s action.” Harris Cnty

. v. Sykes , 136 S.W.3d 635, 639 (Tex. 2004); see also Spence v. State , No. 03

- 17

- 00685

- CV, 2019 WL 1868841, at *9 (Tex. App.

— Austin Apr. 26, 2019, pet. denied) (mem. op.) (concluding that dismissal with prejudice

was proper where the appellants filed an amended petition but did not allege facts “that would constitute a waiver of sovereign immunity or made a suggestion that would cure the jurisdictional defect in their pleadings”); Jones v. City of Port Arthur , No. 09

- 14

- 00442

- CV, 2016 WL 6809207, at *6 (Tex. App.

— Beaumont Nov. 17, 2016, no pet.) (mem. op.). Here, Bellamy amend ed her pleadings several times after the City and Allegiance filed their pleas , including the filing of two amended pleadings on the day before and the day of the scheduled hearing on the plea s
. Despite these pleading24 amendments, Bellamy ’ s pleading s and the jurisdictional facts in the record demonstrate that the C ity and Allegiance a re immune from liability and suit

. Bellamy has failed to plead, and cannot plead, any facts that would show that Allegiance is not entitled to rely on the defense of derivative governmental immunity , and we can not conceive of any other pleading amendme nt that Bellamy could now present , or other discoverable information that she might obtain if this case continued , that w ould cure her inability to establish the trial court ’ s subject

matter jurisdiction to hear and decide this case. Therefore, and based on the circumstances before us, Bellamy ’ s pleading deficiencies cannot be cured and providing her the opportunity to re

- plead is not warranted

. W e conclu d e that the trial court did not err when it dismiss ed Bellamy ’ s suit wit h prejudice because the trial court lack s subject

- matter jurisdiction over Allegiance , and no facts exist , or can be alleged by her, to cure the jurisdictional def iciencies in her pleadings

. See Sykes , 136 S.W.3d at 639 ; see also Pecan Valley Mental Health Mental Retardation Region v. Doe , 678 S.W.3d 577, 594 (Tex. App.

— Eastland 2023, pet. denied)

. Accordingly, we overrule Bellamy ’ s second issue on appeal. IV. This Court ’ s Ruling We affirm the order of the trial court.

W. STACY TROTTER JUSTICE

July 25 , 20 2 4 Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.