Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring 

Opinions filed December 15, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-01040-CV

HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant

V.

GREAT AMERICAN INSURANCE COMPANY, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2008-19859

C O N C U R R I N G O P I N I O N

I agree with the disposition in the majority opinion as well as most of the analysis 

contained therein. I write separately to point out a flaw in the majority’s conclusion that 

Great American raised a contractual waste claim.

The majority interprets a section of Great American’s First Amended Petition as 

raising, or attempting to raise, a waste cause of action and then concludes that a portion 

of that claim that is based on breach of the Handex Contract is not barred by 

governmental immunity under section 271.152 of the Local Government Code. Tex. 
2

Local Gov’t Code § 271.152. Although Great American does use the word “waste” in 

the heading and the body of one section of its petition, it apparently uses that term in a 

non-legal or lay sense and not to assert a common law waste claim. Compare Black’s 

Law Dictionary 762 (2d pocket ed. 2001) (defining “waste” in the legal sense as meaning 

“[p]ermanent harm to real property”) with The American Heritage Dictionary 1365 (2d 

College ed. 1991) (defining “waste” in common usage as meaning, among other 

definitions, “[t]o use, consume, or expend thoughtlessly or carelessly; squander”). A 

common law cause of action for waste requires an allegation and proof of permanent 

harm to real property. E.g., Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571-72 

(Tex. 1981).

1

The majority is correct that a claim for waste may sound in contract; however, to 

support such a claim, the contract must prohibit injury to real property that is a subject of 

the contract. See R.C. Bowen Estate v. Cont’l Trailways, Inc., 256 S.W.2d 71, 72-73 

(Tex. 1953). For example, in R.C. Bowen, the lease agreement between the parties 

expressly incorporated a covenant requiring the tenant to use reasonable care to protect 

the premises from injury. See id. 

Here, real property is not the subject of the Handex Contract. Great American 

does not allege either any injury to real property or a contractual provision prohibiting it. 

Great American merely complains that the District essentially squandered funds that 

could have been used to pay Great American for completion of the contract. Thus, 

contrary to the majority’s interpretation, Great American did not plead a cause of action 

for contractual waste or any facts that could demonstrate contractual waste.

Most of the language in the section of the Amended Petition in question appears to 

be aimed at raising a tort claim, in part because it contains terms such as “duty” and 

“ordinary care” which are typically used in the tort context. As the majority properly 

explains, governmental immunity is not waived for these tort claims. See Tex. Local 

 

1 There are also statutory causes of action for waste available in cases involving depletion of 

natural resources. See, e.g., Tex. Nat. Res. Code §§ 85.046, 85.321; Discovery Operating, Inc. v. BP Am. 

Prod. Co., 311 S.W.3d 140, 161-64 (Tex. App.—Eastland 2010, pet. denied).
3

Gov’t Code §§ 271.152, 271.157; Clear Lake Water Auth. v. Friendswood Dev. Co., 256 

S.W.3d 735, 746 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d). The majority also 

properly analyzes the immunity contentions concerning Great American’s breach of 

contract and other non-tort claims. Accordingly, except for the conclusion that Great 

American’s Amended Petition raised a contractual waste claim, I join the remainder of 

the majority’s analysis and disposition of the case.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Jamison, and McCally. (Frost, J. majority.)