IN THE SUPREME COURT OF TEXAS

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No. 17-0888 

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CARL OWENS, JR., CONNIE OWENS, MICHAEL TERRY, 

AND SANDI TERRY, PETITIONERS

v. 

THE CITY OF TYLER, TEXAS, RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS

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PER CURIAM 

The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents. The 

Owens, Terry, and Chatelain families lease three contiguous lots on the lake pursuant to lease 

agreements with the city. The Chatelains decided to build a new pier and boathouse extending 

from their lot onto the water. They asked the city for a building permit. The Owens and Terry 

families objected. After some attempts at compromise, the city approved the Chatelains’ request 

for a permit. 

The Owens and Terry families sued the city and the Chatelains, seeking to block the 

construction. They alleged several causes of action, including breach of contract. The city filed a 

plea to the jurisdiction asserting governmental immunity. The trial court denied the plea. The city 

took an interlocutory appeal pursuant to TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). Relying 

primarily on Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) (Wasson 
2 

I), the court of appeals concluded that the claims against the city were barred by governmental 

immunity because they arose from the city’s governmental (rather than proprietary) acts. The 

court of appeals reversed the denial of the city’s plea to the jurisdiction, rendered judgment 

dismissing the claims against the city, and remanded the case for further proceedings. ___ S.W.3d 

___, ___ (Tex. App.—Tyler 2017) (mem. op.). The plaintiffs petitioned for review. 

After the court of appeals issued its decision, this Court decided Wasson Interests, Ltd. v. 

City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) (Wasson II). In Wasson II, we stated: 

to determine whether governmental immunity applies to a breach-of-contract claim 

against a municipality, the proper inquiry is whether the municipality was engaged 

in a governmental or proprietary function when it entered the contract, not when it 

allegedly breached that contract. Stated differently, the focus belongs on the nature 

of the contract, not the nature of the breach. If a municipality contracts in its 

proprietary capacity but later breaches that contract for governmental reasons, 

immunity does not apply. 

Wasson II at 149. By no fault of its own, the court of appeals did not conduct the inquiry described 

above, under which the city’s immunity from a breach of contract claim depends on “the nature of 

the contract, not the nature of the breach.” Id. To afford the court of appeals the opportunity to 

re-conduct its review in accordance with our intervening decision in Wasson II, we remand this 

case to the court of appeals without hearing oral argument. TEX. R. APP. P. 59.1; see, e.g., Bossier 

Chrysler-Dodge II, Inc. v. Rauschenberg, 238 S.W.3d 376 (Tex. 2007) (per curiam).

The petition for review is granted, the judgment of the court of appeals is vacated, and the 

case is remanded to the court of appeals for further consideration in light of Wasson II. 

OPINION DELIVERED: December 21, 2018