Tarrant County, Texas v. Jeffrey D. Lerner ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00330-CV
___________________________
TARRANT COUNTY, TEXAS, Appellant
V.
JEFFREY D. LERNER, Appellee
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-307634-19
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Tarrant County, Texas (the County), contends in this accelerated
interlocutory appeal that the specific waiver of immunity from suit for injunctive relief
provided in the County Purchasing Act (CPA) does not extend to provide subject-
matter jurisdiction over appellee Jeffrey D. Lerner’s claim under the Uniform
Declaratory Judgments Act (UDJA) based on the County’s alleged violations of the
CPA. Because the narrow waiver of immunity in the CPA applies only to claims for
injunctive relief and not to UDJA claims, the trial court erred by denying the County’s
plea to the jurisdiction based on the County’s immunity from suit.
I. BACKGROUND
Since 1983, the County has had a contractual relationship with Dispute
Resolution Services of North Texas (DRS) to manage the County’s alternative-
dispute-resolution services for “citizen disputes.” Although the contract was renewed
annually, sometimes retroactively, Tarrant County did not seek competitive bids for
the management contract, valued at over $400,000 per year.
For the County’s 2018 fiscal year—October 1, 2017, to September 30, 2018—
the management contract was to expire on September 30, 2018. On August 15, 2018,
appellee Jeffrey Lerner contacted the County and asked for the opportunity to bid for
the management contract for fiscal year 2019. The County informed Lerner on
August 31, 2018, that it intended to renew the contract with DRS. On December 27,
2018, the County’s commissioners court, as part of its consent agenda, approved the
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management contract with DRS for fiscal year 2019—October 1, 2018, to
September 30, 2019.1
Four months later, Lerner filed suit against Tarrant County for violating the
CPA based on the County’s failure to comply with the CPA’s competitive-bidding
requirements. See Tex. Loc. Gov’t Code Ann. § 262.023. Lerner pleaded for a
declaration under the UDJA that the fiscal year 2019 management contract between
the County and DRS was void based on the CPA violation, for a temporary and
permanent injunction barring further performance under the noncompliant
management contract under the CPA, and for attorney’s fees under the UDJA. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 37.003(a), .004, .009; Tex. Loc. Gov’t Code
Ann. § 262.033.
Tarrant County filed a plea to the jurisdiction, arguing that it had governmental
immunity from Lerner’s claims for declaratory relief and for attorney’s fees under the
UDJA, which had not been waived by either the UDJA or the CPA. Tarrant County
conceded that its immunity was waived for purposes of Lerner’s request for injunctive
relief under the express terms of the CPA. See Tex. Loc. Gov’t Code Ann. § 262.033.
1
The record suggests that on June 4, 2019, the commissioners court granted
permission for the County to take bids from dispute-resolution providers for the fiscal
year 2020 management contract. At oral argument, counsel for the County
represented that the County has publicly posted a request for proposals. See Tex. Loc.
Gov’t Code Ann. § 262.0295.
3
On August 22, 2019, the trial court held a nonevidentiary hearing on Lerner’s
temporary-injunction request and Tarrant County’s plea to the jurisdiction and orally
denied both.2 The trial court signed a nonspecific order to that effect on
September 12, 2019—before the expiration of the management contract for fiscal
year 2019. Tarrant County appeals the denial of its plea; Lerner does not appeal the
denial of a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(4), (8).
II. JURISDICTION
When a political subdivision of the State is immune from suit, a court lacks
subject-matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)
(per curiam). Governmental immunity will bar UDJA actions against the State and its
political subdivisions absent a clear legislative waiver. Tex. Dep’t of Transp. v. Sefzik,
355 S.W.3d 618, 620 (Tex. 2011) (per curiam). Although the UDJA contains a limited
and inapplicable waiver of immunity for challenges to the validity of an ordinance or
statute, see Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b); Sefzik, 355 S.W.3d at 621,
the UDJA is “not a general waiver of sovereign immunity.” Tex. Parks & Wildlife
2
The trial court based its ruling on the fact that once the contract expired,
Lerner’s claims would be moot on September 30, 2019: “I’ll deny your motion to
dismiss for lack of jurisdiction, because I don’t think it matters anyway. You’re never
going to try this thing. It’s going away. So if you want to appeal it, appeal it.” The
record indicates that the trial court denied the temporary injunction because Lerner
had failed to show the requisite harm. In our de novo review, these statements are
not binding. See Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 352–53 (Tex.
App.—Fort Worth 2018, pet. denied) (op. on reh’g).
4
Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011); see also Town of Shady Shores v.
Swanson, No. 18-0413, 2019 WL 6794327, at *6 (Tex. Dec. 13, 2019). Thus,
governmental immunity “will bar an otherwise proper [U]DJA claim that has the
effect of establishing a right to relief against the State for which the Legislature has
not waived sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.
The County argues that the trial court erred by denying the jurisdictional plea
because it was entitled to immunity from Lerner’s UDJA claim and attendant claim
for attorney’s fees,3 which deprived the trial court of subject-matter jurisdiction over
those claims. We review the trial court’s denial de novo as a question of law. Hous.
Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 160 (Tex. 2016); Harris Cty.
Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). In this review, we
construe the pleadings liberally, taking all factual assertions as true and looking to
Lerner’s intent. See Heckman v. Williamson Cty., 369 S.W.3d 137, 149–50 (Tex. 2012).
Lerner bore the burden of alleging facts affirmatively demonstrating that the trial
court had subject-matter jurisdiction over his UDJA-based claims—facts constituting
a claim for which the County’s governmental immunity from suit had been waived.
See Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty., 449 S.W.3d 98, 110 (Tex.
2014); Heckman, 369 S.W.3d at 149–50; Schmitz, 550 S.W.3d at 351.
3
We will refer to Lerner’s claim for declaratory relief and request for attorney’s
fees authorized under the UDJA as the “UDJA-based claims.”
5
Lerner contends that the CPA waives the County’s immunity for purposes of
his UDJA-based claims as well as for his claim for injunctive relief. It is solely within
the province of the Legislature to consent to a suit against a governmental entity. See
Ben Bolt-Palito Blanco Consol. ISD v. Tex. Political Prop./Cas. Jt. Self-Ins. Fund, 212 S.W.3d
320, 326 (Tex. 2006); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854
(Tex. 2002). Such a waiver is effectuated only through clear and unambiguous
language. Tex. Gov’t Code Ann. § 311.034; Swanson, 2019 WL 6794327, at *7; Tooke v.
City of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006).
The immunity waiver contained in the CPA is specific and narrowly drawn:
“Any property tax paying citizen of the county may enjoin performance under a
contract made by a county in violation of [the CPA].” Tex. Loc. Gov’t Code Ann.
§ 262.033. Clearly, the Legislature intended to waive immunity for injunctive-relief
claims arising from CPA violations, but that is the only waiver in the CPA. The
unambiguous language of this statutory waiver does not include requests for
attorney’s fees or for declaratory relief. See City of New Braunfels v. Carowest Land, Ltd.,
549 S.W.3d 163, 171–72 (Tex. App.—Austin 2017, pet. denied) (holding specific
immunity waiver for injunctive relief in Municipality Purchasing Act did not waive
city’s immunity from UDJA claims), discussed with approval in Swanson, 2019 WL
6794327, at *7–8.
Accordingly, we cannot conclude that the specific waiver in the CPA applicable
only to claims for injunctive relief also waives immunity as to Lerner’s UDJA-based
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claims. To do so would be to ignore or impermissibly expand the express and
unambiguous language chosen by the Legislature in the CPA. See, e.g., Swanson,
2019 WL 6794327, at *7 (“[W]hile the Legislature has expressly authorized a suit for
declaratory judgment against the government in other statutes, it has not done so in
the Open Meetings Act[;] [t]hus, the Open Meetings Act’s clear and unambiguous
waiver of immunity does not extend to suits for declaratory relief.”); Zachry Constr.,
449 S.W.3d at 108–10 (holding in case involving Local Government Contract Claims
Act’s provision of authorized recoverable damages operates to “define the scope” of
immunity waiver); Carowest Land, 549 S.W.3d at 172–73 (concluding language in
Municipality Purchasing Act “set the boundaries” of its waiver of immunity as the
express relief provided and did not extend waiver to include UDJA relief). The cases
and the attorney general opinion cited by Lerner4 in support of his argument that
immunity is waived for his UDJA-based claims are not controlling: The cited
authorities were decided before the supreme court unequivocally repudiated the
notion that the UDJA is a general waiver of immunity5 and did not specifically
examine whether the CPA waives immunity for declaratory relief. See Swanson,
2019 WL 6794327, at *7–8.
4
Labrado v. Cty. of El Paso, 132 S.W.3d 581, 593 (Tex. App.—El Paso 2004, no
pet.); Securtec, Inc. v. Cty. of Gregg, 106 S.W.3d 803, 816 (Tex. App.—Texarkana 2003,
no pet.); Tex. Att’y Gen Op. No. GA-0247 (2004).
5
See, e.g., Sefzik, 355 S.W.3d at 621; Sawyer Tr., 354 S.W.3d at 388; City of El Paso
v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009).
7
We conclude that Lerner failed to plead a UDJA claim over which the trial
court had jurisdiction; thus, the trial court erred by denying the County’s plea to the
jurisdiction directed to Lerner’s UDJA-based claims arising from alleged CPA
violations. We sustain the County’s first issue.
III. CONCLUSION
The CPA’s limited waiver of immunity does not extend to Lerner’s UDJA-
based claims. Based on this conclusion, we need not address the County’s alternative
argument in its second issue that if sovereign immunity does not bar Lerner’s UDJA-
based claims, the redundant-remedies doctrine does. See Tex. R. App. P. 47.1. We
also need not determine whether Lerner’s injunctive-relief claim is now moot based
on the expiration of the fiscal year 2019 contract after the trial court’s denial of a
temporary injunction. Not only is the record insufficient for us to make such a
determination in light of the mootness exceptions asserted by Lerner, but the County
did not seek the dismissal of Lerner’s request for a permanent injunction in its plea to
the jurisdiction.6 Accordingly, the injunctive-relief claim is not at issue in this appeal.
We reverse that portion of the trial court’s September 12, 2019 order denying the
County’s plea to the jurisdiction and remand to that court for entry of an order
granting the plea and for further, consistent proceedings. See Tex. R. App. P. 43.2(d),
43.3(a).
6
Again, Lerner did not appeal the denial of his request for a temporary
injunction.
8
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: January 9, 2020
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