Opinion filed July 25, 2024

In The

Eleventh Court of Appeals __________

No. 11-23-00105-CV

__________

AMANDA BELLAMY, Appellant

V.

ALLEGIANCE BENEFIT PLAN MANAGEMENT, INC., Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause CV58440

O P I N I O N

This 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 dismissed the
2

causes of action made against Allegiance by Appellant, Amanda Bellamy, as alleged 

in her pleadings.

1

In the underlying action, Bellamy sued Allegiance and others (who are not 

parties to this appeal) for damages arising from the City of Midland’s (the City)

denial of the healthcare claim that she submitted to the City under the City’s selffunded 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 causes 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 established that Allegiance is immune 

from liability and suit because it operated and functioned as a third-party 

administrator to the Plan. 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 

plea. Allegiance filed a motion to reconsider, and, upon reconsideration, the trial 

court subsequently granted Allegiance’s plea and dismissed the causes of action that 

Bellamy asserted against Allegiance with prejudice.

Bellamy raises two issues on appeal: (1) the trial court abused 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 Texas 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 resulted from Allegiance’s 

wrongful denial of coverage for the medical services she sought that Allegiance had determined to be 

“not medically necessary.” See TEX. LOC. GOV’T CODE ANN. §§ 271.151–.153 (West 2016); TEX. INS.

CODE ANN. §§ 541.003, 541.060, 542.003 (West 2022); TEX. CIV. PRAC. & REM. CODE ANN. §§ 38.001

(West Supp. 2023), 41.003(a) (West 2015), 101.001–.109 (West 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 joined 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 12, 2022, and August 22, 2022, respectively.
3

erred when it subsequently granted Allegiance’s plea because Allegiance is not 

immune from suit as a third-party administrator to the Plan. We affirm. 

I. Factual Background

The City of Midland operates the Plan for its eligible employees and their

eligible dependents. The terms of the Plan are outlined in the “Summary Plan 

Description” document that is contained 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. The Plan, the “Summary Plan Description,” and 

the “Administrative Services Agreement” that was executed by and between the City 

and Allegiance, designate Allegiance as the “Plan Supervisor” and describe

Allegiance’s role within 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 are ministerial in nature—

akin to how a third-party administrator operates. The “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 healthcare claim was submitted, Bellamy participated in and 

was insured under the Plan.

3 In her pleadings, Bellamy alleges that she has

experienced “pain on her left side, specifically the neck and shoulder” which 

prompted her to consult with a physician regarding the cause of her symptoms.

Bellamy alleges that her chosen physician recommended that she undergo surgery, 

3

At the hearing on the pleas 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 Plan. 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 Plan. 
4

the purpose of which was two-fold: (1) to alleviate her symptoms and (2) to remove 

the surgical hardware that had been inserted in her spine from a prior surgery. 

Pursuant to the Plan’s requirements, Bellamy filed a claim and requested that the 

Plan cover the costs associated with this surgery. According to Bellamy, around 

September 21, 2020, she was notified by Allegiance that her claim was denied, based 

on the determination that the recommended surgery was “not medically necessary.”

Bellamy appealed the denial of her claim to 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 this denial, 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 recommended surgery was not 

medically necessary because it was deemed 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 notifying her that after a “second level appeal” 

consideration, her claim and request for coverage and benefits for the recommended 

surgery was, again, denied. In this letter, Bellamy was also informed that she could 

pursue an independent external medical review of the denial determinations 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 filed its plea to the jurisdiction. The trial 

court scheduled a hearing for both pleas for September 22, 2022.
5

The 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) the City’s supplemental plea; 

(2) Bellamy’s third amended petition; (3) Allegiance’s joinder to the City’s

original and supplemental pleas; (4) Allegiance’s reply brief to Bellamy’s 

response to its plea; and (5) the City’s second supplemental plea. The 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 signed its order granting the City’s plea

and denying Allegiance’s plea. Following the trial court’s rulings, 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. The trial court set a 

hearing on Allegiance’s motion for March 2, 2023; however, on February 8, 2023,

the trial court signed its order granting Allegiance’s motion for reconsideration and 

plea to the jurisdiction. This appeal followed. 

II. Standards of Review and Applicable Law

A. Motion for Reconsideration

We review a trial court’s decision to grant or deny 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

Before 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 

her 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 

plaintiff’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, when 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 Int’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 traditional 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 at 
8

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 determining 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. IT-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 consented 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, 133 
9

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 causes 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.

For purposes of the matter before us, it is significant that governmental 

immunity may also apply and extend to protect private companies who contract with 

the State or other governmental entities 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) (holding 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. Tchr. Ret. Sys., 273 S.W.3d 883, 

889–90 (Tex. App.—Austin 2008, no pet.) (extending immunity to Aetna for claims 

that arose from the denial of health coverage based on the relationship between the 

state agency and Aetna, who was 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 and 
10

unambiguously waived, as to a plaintiff’s asserted causes of action, the immunity of

the governmental entity that the private company has contracted with or (2) the 

private company’s actions on behalf of a governmental entity do not support an 

extension of immunity. See Dohlen, 643 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 Cntys. 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 reconsidered its denial of, and subsequently granted, Alliance’s plea because

Allegiance’s motion to reconsider was filed more than thirty days after the trial court 

signed its order denying Allegiance’s plea; and (2) the trial court erred when it 

granted Allegiance’s plea because Allegiance is not immune from suit as a thirdparty administrator to the Plan. 

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. As such, and in that context, Bellamy avers that 

Allegiance was required to file its motion for reconsideration within thirty days after 

the trial court signed its order denying 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 was necessary for the trial court to extend the thirty-day filing 
11 

deadline that purportedly applies to the filing of Allegiance’s motion for 

reconsideration. 

Generally, “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.). We are 

unaware 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 in 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 recites its denial 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 it 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 filing an interlocutory appeal from 

the trial court’s initial denial of its plea, its decision not to do so did 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 CIV. PRAC. & REM.

§ 51.014(a)(8). 
12

The cases that Bellamy cites 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, 458–59 (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 liberally 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 its 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 Allegiance’s motion for reconsideration was 

deficient because “no new evidence” was presented with it. However, there is no 

requirement that a movant’s motion for reconsideration be supported by or based on 

“new evidence.” As 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, 183–85 (Tex. 

App.—Dallas 2010, no pet.).

We conclude that the trial court did not abuse its discretion when it

reconsidered its previousinterlocutory ruling and order that denied Allegiance’s plea 
13

to the jurisdiction because it retained the plenary power to do so until the judgment

that involved and affected Bellamy and Allegiance became final. See McMillan, 641 

S.W.3d at 850; White, 188 S.W.3d at 374–75. Here, the trial court did not sign a 

final judgment when it initially denied Allegiance’s plea. As such, in this 

reconsideration context, the element of “finality” did not exist. Until “finality” 

attached, the deadlines advanced by Bellamy as it pertains to Allegiance’s motion 

for reconsideration would not be triggered.

Accordingly, we overrule Appellant’s first issue on appeal.

B. Allegiance’s Plea to the Jurisdiction

In her second issue, Bellamy argues that: (1) the trial court erred when it

granted 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 governmental entity (here, the City); and (2) the trial court 

erred when it dismissed with prejudice the causes of action that she asserted against 

Allegiance because the trial court failed to provide her an opportunity to amend her

pleadings to cure any deficiencies.

6

1. Does Governmental Immunity Apply to Allegiance?

Although Bellamy contends that the trial court erred when it granted

Allegiance’s plea, she does not argue on appeal that governmental immunity was 

waived by either the City or Allegiance as to the causes of action that she has asserted 

6

Bellamy also argues 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 

governmental immunity. However, Bellamy does not cite to any authority to support this argument on 

appeal. Further, although Bellamy refers to a motion for summary judgment filed by a former defendant

to the 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 this 

argument is devoid of any citations to appropriate authority, it is waived; therefore, we will not address it. 

See TEX. R. APP. P. 38.1(i).
14

against each party in the underlying suit. Instead, Bellamy only argues that the trial 

court erred in extending the shield of governmental immunity to Allegiance because 

(1) Allegiance is not the “Plan Administrator” of the Plan, and (2) the question of 

“whether [Allegiance] is an Administrator should be a question of fact to be 

determined by a jury.”7

 Because the trial court found that the City is 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 extends to and protects Allegiance as a third-party administrator 

to the Plan. Rangel, 595 S.W.3d at 205.

The City is a unit of local government and thus is immune from suit unless 

such immunity has been expressly and unambiguously waived by the legislature. 

See LOC. GOV’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 selffunded insurance plan. See TEX. GOV’T CODE ANN. §§ 2259.001, .002, .037 (West 

2016). In this case, it 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 contends that (1) Bellamy’s pleadings affirmatively negate the trial court’s 

subject-matter jurisdiction to decide this case, and (2) the jurisdictional evidence establishes that it is 

immune from liability and suit because it operated as a third-party administrator to the Plan. See Miranda, 

133 S.W.3d at 226–27. Within both arguments, Allegiance contends that because it is a “third-party benefit 

plan administrator” to the Plan, and because Bellamy failed to allege any independent, wrongful conduct

on behalf of Allegiance or its employees, it is 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 

cites to several opinions that hold 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 posits, and Bellamy concedes, that Texas courts have uniformly 

held that a private company acting in the role as a third-party administrator to an 

insurance program that is funded by the State or another governmental entity is, like 

the governmental entity for which it contracts, immune from liability and 

suit. See Foster, 273 S.W.3d at 885–90 (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 an 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 plan); 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 selffunded 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 rested with ERS). Simply put, in circumstances such 

as these, courts have held that the governmental unit’s immunity protections extend 

to and may be asserted by the third-party administrator that is retained to supervise

the unit’sself-funded insurance plan. This is so because a third-party administrator’s 
16

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 Foster. In Foster, a retired 

teacher sued the Teachers Retirement System of Texas (TRS), a state 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. The Third Court of Appeals concluded that the legislature had not 

waived TRS’s immunity from the retired teacher’s suit. Id. at 888. The court, in

considering whether Aetna, as a private entity, was similarly protected and immune 

from suit under the doctrine of sovereign immunity, held 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 888–90.

In concluding that Aetna was immune from suit as a third-party plan 

administrator, the court in 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 claims, (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 acted

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 central 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 similar 
17

facts, other courts have also extended immunity protections 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 7951630, at *2–3; Mueller, 2015 WL 1938657, at *2, 5.

With these principles in mind, 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 Plan. We 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 asserts multiple causes of action against the City 

and Allegiance, all which arise from the denial of her healthcare claim that she 

alleges should have been covered by the Plan. In asserting these causes of action, 

Bellamy—throughout her pleadings—fails to distinguish between the conduct that 

is attributable to the City and to Allegiance and she frequently refers to the two 

entities collectively as “defendants.” Bellamy also alleges in her pleadings that 

“[Allegiance] is the ‘supervisor’ of the plan, [and is responsible for] processing 

claims for the City.” (emphasis added). However, 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 healthcare 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 alleges that the City is a 

governmental entity, as a consequence Allegiance is entitled to assert and rely on the 

defense of derivative 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 and 
18

allegations recited in Bellamy’s pleadings, without more, when taken as true and 

construed liberally in her favor, necessarily demonstrates that Allegiance, as “the 

Plan Supervisor,” is shielded and protected from suit by the City’s governmental 

immunity like the third-party administrator was in Foster. See Foster, 273 S.W.3d 

at 888–90. Although we answer “Yes” to this question, based 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 to examine the

jurisdictional facts and evidence to determine whether the trial court has subjectmatter 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, in referring to 

the jurisdictional facts and evidence in the record, Bellamy argues on appeal that 

Allegiance was not a third-party administrator to the Plan; 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,” and 
19

show that “Allegiance associates themselves with CIGNA insurance[] [thereby] 

contradicting [Allegiance’s] claim that they are not an insurance company.” We 

note, again, that Bellamy does not cite to any opinion or other authority in support 

of these arguments. Rather, Bellamy’s arguments are nothing more than bare 

assertions. See TEX. R. APP. 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.”).

In response, Allegiance contends that Bellamy’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 Plan, (2) the distinction 

that Bellamy claims exists between an “Administrator” and Allegiance’s role and

title (Plan Supervisor) in this case is an improper attempt to “elevate form over 

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 4855226, at *5; Lesniak, 2015 WL 

7951630, at *2–3; Mueller, 2015 WL 1938657, at *2, 5. We agree. 

In this case, Bellamy sought to recover damages from the City based on 

its contractual relationship and indemnity agreement with Allegiance. The “plan 

documents”—the Plan itself and the Administrative Services Agreement—indicate 

that the responsibilities delegated to Allegiance align with the responsibilities that 

were delegated and assigned to the “administrators” in the cases cited by Allegiance. 

It is undisputed that the City created and funded the Plan and solely retained the right 
20

to amend or modify it at any time. Under the terms of the Plan, the “Plan 

Supervisor”—Allegiance—is employed by the Plan to provide consulting services 

and perform other functions, including assisting with the processing and payment of 

claims. In this regard, Allegiance was only authorized to provide ministerial duties,

it was not permitted to exercise any discretion over the Plan’s assets, and it was not 

considered to be a fiduciary under state or federal laws or regulations. Further, 

Allegiance was not responsible for funding the Plan, nor did Allegiance have any 

financial stake in it.

With reference to the Administrative Services Agreement, the document 

states that the City intended to contract with an independent third-party

administrator—Allegiance—to perform certain administrative services with respect 

to the Plan. The City delegated only non-discretionary authority to Allegiance to

assist in the development, maintenance, and administration of the Plan, and it agreed 

to indemnify 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 insurance under any laws 

or regulations.” While Allegiance was required to assist the City in processing 

claims under the Plan, the City retained the sole authority to make the final 

determinations regarding claim coverage, the appeals of denied claims, and the 

operation and administration of the Plan—which included Bellamy’s claim in the 

present case. Although Allegiance agreed to provide initial claim adjudication 

recommendations 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 these claims. Here,

contrary to Bellamy’s assertion, the record shows that the Director of Administrative 

Services of the City, not Allegiance, denied Bellamy’s claim at the “second level 
21

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 “Plan Supervisor” and the City as “the Plan Sponsor,” 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, defeats that party’s defense of governmental 

immunity. Rather, courts look to the terms of the contract and the claims asserted 

by the plaintiff to determine whether governmental immunity extends to and protects 

a private entity 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 888–90; Stegall, 2019 WL 4855226, at *5; Lesniak, 2015 WL 7951630, at *2–3; 

Mueller, 2015 WL 1938657, at *2, 5.

Like Foster, the record before us shows that: (1) the Plan is fully-funded by 

the City; (2) Allegiance had no financial stake in the approval or denial of any claim

that was submitted to the City by a plan participant; (3) although Allegiance could 

interpret the Plan’s provisions, it only performed 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 had “no 

discretionary authority” to deny claims pursuant to the Administrative Services

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 deny the claims that were submitted by plan participants throughout the 

claims/appeals process; (6) the City agreed to indemnify Allegiance from any claim 

asserted against it based on its performance under the agreement; (7) as Bellamy’s

claim was processed, 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 causes

of action, Bellamy effectively seeks 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.

While the Plan documents in this case do not expressly denote Allegiance, 

albeit by title or otherwise, as the “Plan Administrator,” 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 circumstances where 

courts have extended the protections of governmental immunity to a private entity

who acts in the capacity as an administrator for a governmental 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

granted Allegiance’s plea to the jurisdiction because (1) Bellamy’s pleadings 

affirmatively negate the trial court’s subject-matter jurisdiction to hear and decide 

this 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 Opportunity to Amend

Finally, Bellamy argues that the trial court erred when it did not grant her the 

opportunity to amend her pleadings to cure any deficiencies. In support, she cites to 

County of Cameron v. Brown for the proposition that “if there is a failure in the 
23

[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 pleading 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. However, if a plaintiff’s 

pleading affirmatively negates 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, the 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 amended 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 pleas. Despite these pleading 
24

amendments, Bellamy’s pleadings and the jurisdictional facts in the record

demonstrate that the City and Allegiance are 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 cannot conceive of any other pleading amendment that Bellamy

could now present, or other discoverable information that she might obtain if this 

case continued, that would cure her inability to establish the trial court’s subjectmatter 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. 

We conclude that the trial court did not err when it dismissed Bellamy’s suit 

with prejudice because the trial court lacks subject-matter jurisdiction over 

Allegiance, and no facts exist, or can be alleged by her, to cure the jurisdictional 

deficiencies 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, 2024

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.