COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
BUFORD-THOMPSON COMPANY, § No. 08-24-00040-CV LLC d/b/a BTC, § Appeal from the Appellant, § 112th District Court v. § of Upton County, Texas RANKIN INDEPENDENT SCHOOL DISTRICT, § (TC# 23-231-DCCV- 05050)
Appellee. §
MEMORANDUM OPINION
Appellant Buford-Thompson Company (BTC) was awarded a substantial construction
contract by the Rankin Independent School District (District). BTC admits it distributed expensive
gifts to various District officials and board members in the timeline leading up to its award of the
contract. After discovering the gifts and BTC’s alleged failure to disclose them as mandated by
statute, the District declared the contract void. Significantly, the declaration occurred (1) eleven
months into the construction project when BTC’s outstanding costs exceeded $1 million; (2) two
months after BTC had itself terminated the contract; and (3) several weeks after BTC filed suit for
breach of contract against the District. Claiming any disclosure violations were cured, BTC argues
the validity of the contract presents a fact question on the waiver of governmental immunity and, thus, the trial court erred in granting the District’s plea to the jurisdiction. We disagree and affirm
the trial court’s ruling.
I. BACKGROUND1 A. BTC gifts to district employees and board members pre-contract
In January 2023, the District awarded BTC the contract to serve as Construction Manager
for the District’s $59 million 2022 Bond Project, which included a new transportation facility and
gymnasium. At the time, BTC had operated in the public sector for 40 years, and held itself out as
“the premier K-12 education construction manager in Texas.”2
Prior to the contract award, and while actively seeking the District’s approval for work on
various bond projects, BTC distributed the following gifts to District officials and board members:
• November 14, 2021: Dallas Cowboys tickets, parking pass and suite access to
Superintendent Samuel Wyatt and family;
• May 22, 2022: NASCAR tickets, parking pass and suite access to Superintendent Samuel
Wyatt and his wife, Dawn Wyatt, Business Manager;
• May 22, 2022: NASCAR tickets and suite access to Tracy Clanton, Facilities and
Maintenance Manager;
• October 15, 2022, and October 18, 2022: Tickets for NASCAR event and limousine
transport service in Las Vegas to Superintendent Samuel Wyatt and Business Manager
Dawn Wyatt;
1 These background recitations are taken largely from the reporter’s record and the appellate briefs. Because the matter below was dismissed on a plea to the jurisdiction, the substantive allegations have yet to be proven. 2 See District’s First Amended Plea to the Jurisdiction and Motion to Dismiss, filed December 14, 2023, citing https://btcbuilds.com/ (last visited November 20, 2023).
2 • October 30, 2022: Dallas Cowboys tickets, parking pass and suite access to Superintendent
Samuel Wyatt and Business Manager Dawn Wyatt;
• October 30, 2022: Dallas Cowboys tickets to Board Member Jimmy Armendariz;
• October 30, 2022: Dallas Cowboys tickets and suite access to Board Member Brett Clark;
and
• October 30, 2022: Dallas Cowboys tickets and suite access to Principal Brad Riker.
B. BTC failure to comply with statutory disclosure requirements pre-contract
In November 2022, District voters approved a $223 million bond measure to finance
substantial school construction and renovation projects (the Project). On November 9, 2022, BTC
submitted a Request for Qualifications (RFQ) to District Superintendent Sammy Wyatt for the
Bond Projects; in violation of federal regulations, BTC itself intended to respond to the form.3
BTC’s proposal included specific reference to the disclosure requirements and Conflicts of Interest
questionnaire (CIQ) mandated for completion by Chapter 176 of the Texas Local Government
Code (Chapter 176).4 See Tex. Loc. Gov’t Code Ann., § 176. The District then publicly released
its final RFQ, which also included the Chapter 176 mandate that all proposers execute the CIQ
under oath. BTC received the District’s final Request for Proposal (RFP) for Construction
Manager on the Bond Projects on November 18, 2022.
On December 2, 2022, BTC submitted its response to the District’s RFP, along with the
completed CIQ disclosure form mandated by Chapter 176. Despite BTC’s distribution of gifts to
3 Contractors do not generally draft the public entity bids to which they will ultimately respond as doing so would violate federal procurement standards which “ensure objective contractor performance and eliminate unfair competitive advantage.” See 2 CFR § 200.319. “[C]ontractors that develop or draft specifications, requirements, statements of work, or invitations for bids must be excluded from competing on those procurements.” See id. § 200.319(b). 4 Texas Local Government Code § 176.006 requires a vendor to complete a Conflict of Interest questionnaire (CIQ) with the governmental entity no later than seven business days after the submission of any proposal to contract with that particular entity. The questionnaire requires the vendor to disclose any gifts made to public officials and valued at $100 or more in aggregate value in the preceding twelve-month period. See id. § 176.003(a)(2)(B).
3 District officials less than six weeks earlier, the CIQ, signed under oath by BTC President Sammy
Martin, indicated no disclosures were necessary. Less than two weeks later, on December 17,
2022, BTC gifted limousine transportation service to the District’s Superintendent Samuel Wyatt
and Business Manager Dawn Wyatt.
BTC was awarded the contract to serve as Construction Manager for the Project on
January 3, 2023. The District received no other proposals. On February 8, 2023, BTC and the
District executed a “guaranteed maximum price” amendment to the contract, which included the
dates for work commencement and substantial completion. The District then timely paid BTC’s
first two payment applications: (1) $195,378.90 for February 2023; and (2) $1,094,495.95 for
March 2023.
C. District discovers BTC non-disclosures
In April 2023, based on public concern and inquiry, the District’s Board of Trustees
(Board) became aware of BTC’s previously undisclosed gifts to District employees and officials.
During a special meeting on May 2, 2023, the Board discussed the statutory disclosure
requirements and BTC’s undisclosed gifts. The Board president then reached out to BTC regarding
the undisclosed gifts.5
During another special meeting on May 9, 2023, the Board voted to temporarily halt BTC
work on the Project. That same day, the Board accepted the resignations of Superintendent Samuel
Wyatt and Business Manager Dawn Wyatt, stemming from their acceptance of BTC gifts. On
May 10, 2023, the District notified BTC in writing that the Project was being “suspended, as
follows:”
5 According to his January 2024 Affidavit, BTC CEO Michael Trammell claims BTC amended its disclosures via April 28, 2023, and May 1, 2023 CIQs. Trammell admits that the disclosures made in the alleged April 2023 and May 2023 CIQs were incomplete. The alleged April 2023 and May 2023 CIQs are not in the record.
4 [T]he RISD board moved last night to temporarily halt construction on our bus barn project. I asked last week that we stop design and engineering but at this time we’d actually like you to stop work. We’d like to get our interim [superintendent] in place before we pour any more concrete. We so appreciate your help and we expect to get back rolling very quickly.
According to BTC, the District’s notification did not “terminate” the contract for convenience or
for cause as required. The notification also made no mention of BTC’s alleged failure to file CIQ
disclosures. Still, pursuant to the District’s notice, BTC suspended work; work remained
suspended for the entire summer of 2023.
On May 16, 2023, the Board voted to retain a forensic auditor to investigate the validity of
the contract based on the BTC conflict-of-interest disclosure issues.
D. BTC terminates the contract and files suit; district voids the contract
After giving seven days’ notice, BTC terminated the contract on September 19, 2023.6
Upon termination, BTC claimed the District owed $1,157,970.25 on the Project. That same day,
BTC filed its lawsuit alleging breach of contract claims against the District.
Less than a month later, on October 11, 2023, the Board received the forensic auditor’s
results, including the conclusion that BTC had failed to disclose “potentially illegal” gifts given to
District officials and employees pre-contract, as mandated by Chapter 176. Based on the auditor’s
recommendations, the Board declared the BTC contract void ab initio (from inception) under
6 The District may have previously terminated the contract. On September 6, 2019, the District relayed preliminary audit findings pertaining to portions of the project to BTC. The findings included cost overages and instances of potential savings to the District, which had not been realized by BTC, totaling $959,823. With the findings, the District put BTC on notice that the alleged contract was terminated. Upon receipt of the District’s notice, BTC counsel denied any compliance issues, and explained the District’s allegations were insufficient for termination.
5 Chapter 176 on November 28, 2023.7 The next day, November 29, 2023, the District filed its
answer, plea to the jurisdiction and motion to dismiss BTC’s suit.8
BTC claimed the District’s voiding of the contract “was the first time BTC had
received notice [from the District] of [BTC’s] alleged violation of [Chapter] 176.” On that basis,
BTC mailed a supplemental CIQ with an enclosure letter dated November 28, 2023. Despite its
date, the letter indicates the supplemental CIQ was prepared in response to the District’s
notification in pleadings “filed yesterday, November 29, 2023;” the signature on the CIQ is dated
November 30, 2023. In this supplemental CIQ, BTC disclosed only those gifts to former District
employees Samuel and Dawn Wyatt. While stating the supplemental disclosure was “admittedly”
late, BTC explained that was “because [BTC] was unaware of the filing requirement for these
gifts.”
E. Trial court findings and grant of plea to jurisdiction
On February 6, 2024, the trial court heard the District’s Plea and Motion. District counsel
argued the trial court lacked jurisdiction because BTC could not establish a waiver of
governmental immunity. BTC counsel claimed the breach of contract cause of action in and of
itself provided grounds for waiver; and that Chapter 176 expressly instructed that the contract’s
validity could not be affected solely by BTC’s alleged non-compliance with the disclosure
requirements. On that issue, BTC counsel further claimed BTC had “cured” any statutory violation
after first receiving notice from the District that the disclosures had not been made.
In response, District counsel explained that pursuant to Chapter 176’s enforcement
authority, the District’s declaration that the contract was void meant the contract was void at
7 See Tex. Loc. Gov’t Code Ann. § 176.013(e) (“The governing body of a local governmental entity may, at its discretion, declare a contract void if the governing body determines that a vendor failed to file a conflict of interest questionnaire required by Section 176.006.”). 8 Before us in this appeal is the amended plea and motion to dismiss filed in mid-December 2023.
6 inception; thus, there was no valid contract when BTC filed suit. Where there is no valid contract,
there can be no breach of contract claim and, therefore, no waiver of governmental immunity. The
trial court agreed with the District, finding (1) the District’s declaration meant the contract
was void from its inception regardless of the date of the declaration; (2) in the absence of a
valid contract, no waiver of governmental immunity could be shown; and (3) where no waiver
was demonstrated, BTC’s claims were barred. The trial court then granted the plea, dismissing
BTC’s breach-of-contract claims with prejudice.
II. ISSUES ON APPEAL
On appeal, BTC argues the trial court erred in granting the District’s plea to the jurisdiction,
because BTC presented a fact issue as to whether the District waived governmental immunity the
moment it entered into the contract, per Chapter 271 of the Texas Local Government Code. In sub-
issues, BTC argues when and whether to waive governmental immunity is the Legislature’s
exclusive province; thus, the District’s delay in “voiding” the contract presents a fact issue as to
whether such a declaration was even valid, especially where BTC allegedly “cured” the statutory
violations. BTC further contends Chapter 176 includes no basis for the District’s declaration that
the contract was void from inception. Finally, BTC argues the District’s delayed declaration
imposes an “extremely unconscionable penalty” for BTC’s alleged disclosure violations, where
BTC’s costs exceeded $1 million at the time the declaration was made.
III. DISCUSSION A. Standard of review
Public school districts are among those governmental entities generally immune from suit
absent a legislative waiver. El Paso Education Initiative, Inc. v. Amex Properties, LLC, 602
S.W.3d 521, 526 (Tex. 2020); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770
(Tex. 2018) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012)).
7 Unless immunity has been waived, governmental immunity protects the entity and deprives the
courts of jurisdiction. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014). Because
immunity implicates a trial court’s subject matter jurisdiction, the issue is properly raised through
a plea to the jurisdiction, which we review de novo. City of San Antonio v. Maspero, 640 S.W.3d
523, 528 (Tex. 2022).
The party suing the governmental unit bears the burden of affirmatively showing a waiver
of immunity exists. Univ. of Texas M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512
(Tex. 2019) (citing Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)).
“To determine whether the party has met this burden, we may consider the facts alleged by the
plaintiff and the evidence submitted by the parties.” Id. (citing Texas Nat. Res. & Conservation
Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001)).
When the plea challenges the existence of jurisdictional facts, our review mirrors that of a
traditional summary judgment motion. Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635
(emphasis added); see also Tex. R. Civ. P. 166a(c). Thus, while considering evidence, we take as
true all evidence favorable to the non-movant and indulge every reasonable inference and resolve
any doubts in the non-movant’s favor. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 228 (Tex. 2004). Dismissal on a plea to the jurisdiction is improper where the pleadings and
evidence generate a “fact question on jurisdiction.” Univ. of Texas at Austin v. Hayes, 327 S.W.3d
113, 116 (Tex. 2010). Where the relevant evidence is undisputed or the plaintiff fails to raise a fact
question on the jurisdictional issue, however, the plea must be granted. Id. at 116.9
9 Cf., Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000), overruled on other grounds, Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 n.4 (Tex. 2004)) (confirming a plea to the jurisdiction generally defeats an action “without regard to whether the claims asserted have merit”).
8 B. Conflict of interest disclosure requirements and enforcement
Chapter 176 of the Texas Local Government Code was enacted in 2005 to ensure the
disclosure of business and financial relationships between public officials and potential vendors,
promoting ethics in the local contracting marketplace and protecting taxpayers from the costs of
bribery and corruption in that process. See Act of May 26, 2005, 79th Leg., R.S., ch. 1014, § 1,
2005 Tex. Gen. Laws 3429, 3429 (codified at Tex. Loc. Gov’t Code Ch. 176).
Relevant here are portions of Chapter 176 which instruct that a vendor who contracts with,
or actively seeks to contract with, a local government entity for the sale of property, goods or
services must timely file a CIQ disclosing gifts (with an aggregate value of more than $100) to any
officer of the local entity within the preceding 12 months. See Tex. Loc. Gov’t Code Ann.
§§ 176.003(a)(2)(B), 176.006(a), (a-1). Under Chapter 176, the vendor shall file a completed CIQ
with the appropriate records administrator of the entity not later than the seventh business day after
the later of the date the vendor: (1) begins discussions or negotiations to enter into a contract with
the local government entity; or (2) submits to the local governmental entity an application,
response to a RFP or another writing related to a potential contract with the local governmental
entity. Id. §§ 176.006(a), (a-1)(1); 176.003(a)(2)(B). The statute further requires the vendor to file
an updated CIQ “not later than the seventh business day after the date on which the vendor [first]
becomes aware of an event that would make a statement in [a prior] questionnaire incomplete or
inaccurate.” Id. § 176.006 (d).
In 2015, based on concerns that disclosures were not sufficiently being triggered, the
Legislature amended Chapter 176 to include enforcement provisions, creating a criminal offense
and penalties for the failure to disclose. See Act of May 27, 2015, 84th Leg., R.S., ch. 989, § 8,
2015 Tex. Gen. Laws, 3508, 3512 (codified at Tex. Loc. Gov’t Code Ann. § 176.013) (and Bill
Analysis at https://lrl.texas.gov/scanned/TLCBillAnalyses/84-0/HB23RPT.PDF). Accordingly,
9 under the “Enforcement” section, a vendor has committed a criminal offense if he knowingly fails
to file (1) the required CIQ with the appropriate administrator not later than 5 p.m. on the seventh
business day after the date on which the vendor becomes aware of the facts that require the filing
of the questionnaire; or (2) an updated CIQ not later than 5 p.m. on the seventh business day after
the date on which the vendor becomes aware of an event that would make a statement in a
previously-filed questionnaire incomplete or inaccurate. See Tex. Loc. Gov’t Code Ann.
§§ 176.013(b)(1), (2). Where, as here, the contract amount is at least $5 million, the offense is a
Class A misdemeanor unless the vendor files a CIQ within seven business days of its first notice
of the violation. Id. at §§ 176.013(c)(3), (g). Absent the amendment-within-seven-days exception,
a vendor who violates Chapter 176 in that scenario does so at the risk of spending one year in jail,
being fined a maximum of $400, or both. See id. § 176.013(c)(3); Tex. Penal Code Ann. §§ 12.21.
Significant here, Chapter 176’s enforcement provisions also include a civil penalty: the
governing body of a local governmental entity may, at its discretion, declare a contract void if it
determines that a vendor failed to file a CIQ. See Tex. Loc. Gov’t Code Ann. § 176.013(e).
C. Analysis
(1) Did BTC comply with Chapter 176 disclosure requirements?
Under Chapter 176, BTC’s first disclosure duty arose when it became aware that it had
distributed gifts to District officers (or officers’ family members) valued in the aggregate of $100
or more in the 12 months preceding BTC’s response to the District’s RFP. See id. §§ 176.006(a),
(a-1)(1)(B). The mandatory deadline for those disclosures was Wednesday, December 14, 2022,
or the seventh business day after BTC responded to the District’s RFP on Monday, December 5,
2022.10 See id. §§ 176.006(a-1)(1)(B). This BTC failed to do.
10 The record and briefing interchangeably indicate BTC’s response to the District’s RFP occurred on December 2, 2022, and December 5, 2022.
10 Instead, while otherwise appearing to meet the deadline, BTC’s December 2, 2022 CIQ
made no mention of the several expensive gifts BTC had distributed to District employees and
officials during the applicable timeline. Indeed, BTC president Sammy Martin represented under
oath that “No Relationship Exists [between BTC and the District].” Just above Martin’s signature,
the box to be checked “if the vendor has given the local government officer or [the officer’s family
member] one or more gifts [with an aggregate value of $100 or more]” was left blank. Remarkably,
BTC’s sworn statement that no disclosures were necessary was filed just over a month after BTC
gifted Dallas Cowboys tickets and suite access to the District’s then superintendent and business
manager; and just 15 days before BTC provided limousine transport services to the same now-
former employees.
A second statutory disclosure duty arose when any particular “event” triggered BTC’s
awareness that its December 2, 2022 CIQ was “incomplete or inaccurate.” See id. § 176.006(d). In
that circumstance, Chapter 176 essentially allowed BTC a second chance: BTC could have
amended its prior CIQ by Tuesday, December 13, 2022, or the seventh business day after BTC
filed its “no disclosures” CIQ on Friday, December 2, 2022. Despite evidence confirming both its
professional awareness of the statutory requirements and its actual awareness of its distribution of
gifts-requiring-disclosure in the applicable timeline, BTC remained silent. On that basis, BTC filed
no CIQ and no supplemental CIQ meeting Chapter 176’s mandatory December 2022 deadlines.
On the pivotal issue of whether BTC was actually aware of, but failed to comply with, the
Chapter 176 mandates for conflict-of-interest disclosures, the trial court also had the following
evidence before it:
• At the time it submitted the December 2022 CIQ, BTC had over 40 years of experience in
the education construction industry, and held itself out as Texas’s “premier K-12 education
construction manager;”
11 • BTC had notice of the mandated disclosures at least three times before it responded to the
District’s RFP: BTC included the blank CIQ form in its proposed Request for
Qualifications to the District on November 9, 2022; the District’s publicly released RFP
included the Chapter 176 mandate that all proposers execute the CIQ under oath; and it
received the CIQ form when the District addressed the RFP directly to BTC on
November 18, 2022;
• District officials and Board members filed Chapter 176-compliant disclosures confirming
BTC’s gifts of limousine transport, suite access, parking passes and tickets to NASCAR
events and Dallas Cowboys games in the applicable pre-contract timeline;
• BTC’s electronic mail communications contained details of the gifts to various District
officials confirming BTC’s actual knowledge of the gifts and the timeline of their
distribution;
• BTC’s failure, in the December 2, 2022 CIQ, to disclose any of the gifts it had distributed
to District officials in the applicable timeline constituted a false statement under oath; and
• Listing only six of nine known gifts to the District, BTC’s supplemental November 30,
2023 CIQ, filed under oath, also constituted a false statement under oath.
Based on the foregoing, the trial court could have reasonably concluded that BTC, an
experienced professional in the construction industry, had actual awareness of the Chapter 176
disclosure mandates prior to and during its efforts to obtain the District contract. The trial court
could have then reasonably found that BTC’s failure to comply with statutory mandates by
disclosing their gifts to District officials in the 2021–2022 timeline was not inadvertent, but
intentional.
BTC contends, however, that it was “unaware” of any statutory violations until it received
the District’s November 29, 2023 pleadings advising the contract had been voided. Because BTC
12 supplemented its prior disclosures the next day, BTC argues any violation was cured under what
it calls Chapter 176’s “safe harbor” provision: “[i]t is an exception [to the vendor’s commission of
an offense for failures to disclose if]11 the vendor filed the required questionnaire not later than
the seventh business day after the date the vendor [first] received notice from the local
governmental entity of the alleged violation.” See Tex. Loc. Gov’t Code Ann. § 176.013(g)
(emphasis added). Because the statute describes the “knowing failure” to file the requisite
disclosures as a Class A, B, or C misdemeanor depending on the subject contract’s monetary value,
the exception provision is clearly intended as a defense in a criminal proceeding.
Moreover, the exception provides a grace period after a vendor’s first notice of a violation
from the government entity. Considering BTC’s claims that it filed supplemental CIQs in April
and May, 2023 (the precise timeline in which the District first learned of and made inquiries to
BTC about the illegal gifts), and the previously discussed evidence of BTC’s actual knowledge of
the disclosure requirements, BTC’s attempts to frame the District’s November 29, 2023 pleadings
as its “first notice” of any statutory violations stretch the boundaries of credibility.
Sub-issue D. of BTC’s point of error which argued BTC legally cured, or presented a fact
issue as to whether it legally cured, any Chapter 176 violations, is overruled.
(2) Did Chapter 176 authorize the District to void the contract ab initio?
Section 271.152 of the Texas Local Government Code (Chapter 271) provides that, when
a local government entity (including an independent public school district), authorized to contract,
“enters into a contract” for goods or services that meet certain requirements, that entity “waives
11 See Tex. Loc. Gov’t Code Ann. § 176.013(b) (“A vendor commits an offense under this chapter if the vendor: (1) is required to file a conflict of interest questionnaire under Section 176.006; and (2) either: (A) knowingly fails to file the required questionnaire with the appropriate records administrator not later than 5 p.m. on the seventh business day after the date on which the vendor becomes aware of the facts that require the filing of the questionnaire; or (B) knowingly fails to file an updated questionnaire with the appropriate records administrator not later than 5 p.m. on the seventh business day after the date on which the vendor becomes aware of an event that would make a statement in a questionnaire previously filed by the vendor incomplete or inaccurate.”)
13 sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract,
subject to the terms and conditions of [the Act].” See Tex. Loc. Gov’t Code Ann. §§ 271.152,
151(2), (3). For a waiver of immunity, however, there must be “a written contract . . . that is
properly executed on behalf of the local governmental entity.” See Tex. Loc. Gov’t Code Ann.
§ 271.151(2); El Paso Education Initiative, 602 S.W.3d at 531. “[A] contract is properly executed
when it is executed in accord with the statutes and regulations prescribing [the entity’s contracting
authority].” El Paso Education Initiative, 602 S.W.3d at 532 (confirming Chapter 271’s use of the
word “properly” limits the verb “executed,” leading to the “inexorable conclusion that not all
executed contracts qualify for Chapter 271’s waiver”).
It is undisputed that the District, a local government entity authorized to contract under
Chapter 271, entered into a contract with BTC in January 2023. The District, however, insists the
waiver applies only to a lawful, valid contract. By choosing to void the contract under
Chapter 176’s enforcement authority, the District argues no valid contract existed when BTC filed
suit. See Tex. Loc. Govt. Code Ann. §§ 176.013(b), (e). Where there is no contract, there can be
no breach of contract claim. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009);
Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 354–55 (Tex. App.—San Antonio
1998, pet. denied) (confirming the existence of a valid contract is an essential element of a breach
of contract claim). And where there is no valid breach of contract claim, BTC cannot meet its
burden to establish waiver. El Paso Education Initiative, Inc., 602 S.W.3d at 534.
BTC claims the District misconstrues the statute’s meaning of the word “void,” claiming
(1) the statute’s inclusion of the phrase “at [the entity’s] discretion” necessarily means the entity
may only declare a contract voidable; and (2) nowhere does the statute authorize a declaration that
a contract is void from inception. We turn, then, to the rules of statutory interpretation.
14 A court’s mandate is always “to ascertain and give effect to the Legislature’s intent as
expressed in the statutory language.” Texas Health and Human Servs. Comm’n v. Estate of Burt,
689 S.W.3d 274, 282 (Tex. 2024) (citing Paxton v. City of Dallas, 509 S.W.3d 247, 256
(Tex. 2017)). We therefore consider the plain and ordinary meaning of the term, “unless a different
meaning is supplied, is apparent from the context, or the plain meaning of the word[] leads to
absurd or nonsensical results.” Cadena Comercial USA Corp. v. Texas Alcoholic Beverage
Comm’n, 518 S.W.3d 318, 325 (Tex. 2017) (citing Crosstex Energy Services, L.P. v. Pro
Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014)); see also Tex. Gov’t. Code Ann. § 311.011(a).
(“Words and phrases shall be read in context and construed according to the rules of grammar and
common usage.”). We also consider the context in which the word is used, determining “legislative
intent from the entire act and not just [from] isolated portions.” See 20801, Inc. v. Parker, 249
S.W.3d 392, 396 (Tex. 2008).
Black’s Law Dictionary defines the adjective “void” as “of no legal effect; to null.” Void,
BLACK’S LAW DICTIONARY (12th ed. 2024). As an example, Black’s states “whenever technical
accuracy is required, void can be applied only to those provisions that are of no effect
whatsoever—those that are an absolute nullity.” Id. Generally, a contract may either be void and
a nullity from its inception, or voidable. See Willacy County Appraisal Dist. v. Sebastian Cotton
& Grain, Ltd., 555 S.W.3d 29, 52 (Tex. 2018) (citing Harris v. Archer, 134 S.W.3d 411, 427
(Tex. App.—Amarillo 2004, pet. denied)). Before one can sue for breach of contract, there must
first be a contract susceptible of breach. Bannum, Inc. v. Mees, No. 07-12-00458-CV, 2014 WL
2918436, at *1 (Tex. App.—Amarillo June 24, 2014, no pet.) A contract rendered “null and void”
is not susceptible of breach “because a void contract never came into existence.” Id. (citing Elijah
Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc., 301 S.W.3d 747, 754 (Tex. App.—
El Paso 2009, pet. denied)).
15 The language used in the subject enforcement provision is clear and unambiguous. See
Tex. Loc. Gov’t Code Ann. § 176.013(e); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
445 (Tex. 2009) (Hecht, J., concurring) (confirming that, if the language used in the statutory text
is “plain enough, . . . that is where the task [of statutory interpretation] ends.”) The critical word
selected by the Legislature is “void,” not “voidable” as BTC suggests. No other statute or section
is noted or cross-referenced to indicate a timeline in which the government entity may or may not
declare a contract void. See Willacy County, 555 S.W.3d at 39 (confirming courts presume the
Legislature selects each word of the statute for a purpose, and that it purposefully omits those
words not chosen). Thus, according to the plain language of the statute, the District’s timeline in
which to void a contract was not limited by BTC’s alleged prior contract termination or the date
BTC filed suit.
When Chapter 176 was amended in 2015, the Legislature intentionally infused it with more
enforcement “teeth.” Section 176.013 clearly outlines the applicable criminal offense and
designates misdemeanor offense levels based on the subject contract’s monetary value. In the civil
realm, however, the Legislature chose only to authorize one remedy, allowing a government entity
the discretion to void any contract ass ociated with a vendor’s failure to make the statutory
disclosures. See City of Denton v. Municipal Admin. Servs., Inc., 59 S.W.3d 764, 769–70
(Tex. App.—Fort Worth 2001, no pet.) (citing Richmond Printing v. Port of Houston Auth., 996
S.W.2d 220, 224 (Tex. App.—Houston [14th Dist.] 1999, no pet.)) (confirming a contract made
in violation of a statute is illegal); cf., TXU Energy Retail Co., LLC, v. Fort Bend ISD, 472 S.W.3d
462, 466 (Tex. App.—Dallas 2015, no pet.) (citing Tex. Loc. Gov’t Code Ann. § 271.152)
(affirming trial court grant of plea to jurisdiction; school district not authorized to enter into
contract where provider violated competitive bidding requirements). Consistent with the
Legislature’s intent to prevent corruption and prohibit contracts solicited in violation of the
16 disclosure mandates, we conclude that § 176.013 authorized the District to declare the contract
void from inception, confirming no valid contract existed when BTC filed suit and, thus, no waiver
of governmental immunity.
As a last resort, BTC attempts to frame this outcome as “unconscionable” due to the
substantial penalty it will likely sustain. That argument requires a finding that the District is
estopped from voiding the contract; estoppel doctrines, however, will not make a void contract
enforceable. City of Denton, 59 S.W.3d at 771.
Sub-issues A, B, and C of BTC’s point of error are overruled.
IV. CONCLUSION Chapter 176 was enacted both to promote ethics in the public contracts marketplace and to
protect Texas taxpayers from the expense of corruption and bribery in the process. BTC’s conduct,
amply affirmed by the record, is precisely the type of behavior Chapter 176 was enacted to curtail.
We affirm the trial court’s grant of the District’s plea to the jurisdiction and its dismissal of the
entirety of BTC’s claims with prejudice.
MARIA SALAS MENDOZA, Chief Justice
April 21, 2025
Before Salas Mendoza, C.J., Palafox and Soto, JJ. Soto, J., concurring without written opinion