NUMBER 13-19-00269-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EDINBURG HOUSING AUTHORITY, DR. MARTIN CASTILLO, GABRIEL SALINAS, SIMON GARZA, MARISSA CHAVANA, AND JUAN GUZMAN, Appellants,
v.
RODOLFO RAMIREZ, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva Memorandum Opinion by Justice Hinojosa In this interlocutory appeal, Appellants, the Edinburg Housing Authority (the
Housing Authority) and Dr. Martin Castillo, Gabriel Salinas, Simon Garza, Marissa Chavana, and Juan Guzman (the Commissioners) contend the trial court erred when it
failed to grant their Rule 91a motion to dismiss appellee Rodolfo Ramirez’s claims against
them. By two issues, appellants contend the trial court should have dismissed Ramirez’s
due process of law, equal protection, and breach of contract claims against them in their
(1) official capacities and (2) individual capacities. We reverse and remand.
I. BACKGROUND
Ramirez signed a three-year employment contract with the Housing Authority to
be its Executive Director on June 12, 2015. On May 26, 2017, the Housing Authority’s
Commissioners voted to extend Ramirez’s original contract for another three years,
extending his term until April 1, 2021. On December 17, 2018, however, after deliberating
in an executive session, the Commissioners voted to terminate Ramirez at a board
meeting.
Ramirez sued the Housing Authority and its Commissioners, claiming he was fired
without explanation or cause. He asserted the following causes of action in his petition:
(1) breach of contract, (2) violations of the Texas Constitution’s due course of law
provision and (3) equal rights protections, and (4) a declaratory judgment. The Housing
Authority and its Commissioners responded with a general answer asserting that they
had immunity as a governmental unit. In addition, the Commissioners asserted that they
were not liable in the capacity in which they had been sued. The Commissioners
subsequently filed special exceptions to determine if Ramirez was suing them in their
official capacities, their individual capacities, or both. Ramirez filed a response to the
special exceptions, indicating he was planning to withdraw his claim for declaratory
2 judgment but reaffirming his intent to sue the Commissioners in both capacities.
Appellants then jointly filed a Rule 91a motion to dismiss on May 2, 2019, that
reiterated their claims of immunity and challenged the trial court’s subject matter
jurisdiction. Ramirez filed a response to the motion to dismiss on May 28, 2019. He also
filed an amended petition on May 31, 2019, formally withdrawing his declaratory judgment
action but otherwise maintaining his two constitutional claims and the claim for breach of
contract against appellants. After a hearing on June 4, 2019 on appellants’ Rule 91a
motion to dismiss, the trial court denied the motion on June 7, 2019. 1 This interlocutory
appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. APPELLATE JURISDICTION
This court has jurisdiction over this interlocutory order under § 51.014(a)(8) of the
civil practices and remedies code. See id. This statute provides that “a person may appeal
from an interlocutory order of a district . . . denies a plea to the jurisdiction by a
governmental unit.” Id. Governmental immunity deprives a trial court of jurisdiction over
lawsuits in which the State's political subdivisions have been sued. Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). Because the Housing
Authority is considered a unit of government under the local government code, it is entitled
to governmental immunity. See TEX. LOC. GOV’T CODE ANN. § 392.006 (“[A] housing
authority is a unit of government and the functions of a housing authority are essential
governmental functions and not proprietary functions.”); Garcia, 372 S.W.3d at 636. In
the same vein, the Texas Supreme Court has recognized that “[a] person sued in an
1 The appellate record does not include a reporter’s record from this hearing.
3 official capacity should be able to appeal the denial of a jurisdictional plea in the same
way as his employing governmental unit because both defendants’ interest in pleading
sovereign immunity are identical.” Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
845 (Tex. 2007).
As it relates to this case, appellate courts have also held that a governmental unit
may appeal the denial of a Rule 91a motion that challenges the trial court’s subject matter
jurisdiction under § 51.014(a)(8). See Reaves v. City of Corpus Christi, 518 S.W.3d 594,
603-07 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.); see, e.g., City of Austin v.
Liberty Mut. Ins., 431 S.W.3d 817, 823 (Tex. App.—Austin 2014, no pet.) (concluding that
the appellate court had jurisdiction in interlocutory appeal from denial of a Rule91a motion
because “the Rule 91a motion was used to challenge the trial court’s subject-matter
jurisdiction and therefore effectively constitutes a plea to the jurisdiction.”).
The Commissioners suggest, however, that they cannot rely on § 51.014(a)(8) to
pursue an interlocutory appeal of the trial court’s refusal to dismiss the claims brought
against them in their individual capacities. That is because the individuals themselves are
not governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Citing
Ware v. Miller, the Commissioners note that while the denial of the plea to the jurisdiction
they asserted in their official capacities is a proper issue for this court to consider on
interlocutory appeal, the denial of the challenges asserted by them in their individual
capacities “is not something we may review in this interlocutory appeal.” 82 S.W.3d 795,
800 (Tex. App.—Amarillo 2002, pet. denied). Accordingly, the Commissioners have
requested mandamus relief from the order denying the Rule 91a motion insofar as that
4 order relates to the claims directed at them individually. See CMH Homes v. Perez, 340
S.W.3d 444, 453–54 (Tex. 2011); Jones v. Brelsford, 390 S.W.3d 486, 497 n.7 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (“[I]n an appropriate case, we may treat an
appeal as a petition for writ of mandamus, and an appellant who specifically requests that
her appeal be treated as a mandamus petition invokes this Court's original jurisdiction.”).
We conclude, however, that we do have interlocutory appellate jurisdiction over
the Commissioners’ individual claims and that we need not resort to a mandamus review.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5). Section 51.014(a)(5) of the civil
practice and remedies code allows interlocutory appeal for the denial of a “motion for
summary judgment that is based on an assertion of immunity by an individual who is an
officer or employee of the state or a political subdivision of the state.” See id. And even
though this appeal arises from a Rule 91a motion and not a summary judgment motion,
under the Reaves line of authority, we have appellate jurisdiction over claims asserted in
a Rule 91a motion that challenge the trial court’s subject matter jurisdiction. See Reaves,
518 S.W.3d at 603-07); City of Austin, 431 S.W.3d at 823. Having resolved the question
of jurisdiction, we proceed to the remainder of our opinion.
III. STANDARD OF REVIEW & APPLICABLE LAW
Texas Rule of Civil Procedure 91a provides a mechanism for dismissal of baseless
claims. The rule provides as follows:
[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in the law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
5 TEX. R. CIV. P. 91a.1. “A motion to dismiss must state that it is made pursuant to this rule,
must identify each cause of action to which it is addressed, and must state specifically
the reasons the cause of action has no basis in law, no basis in fact, or both.” Id. R. 91a.2.
The rule allows the responding party to either nonsuit or amend the challenged cause of
action at least three days before the date of the hearing on the motion to dismiss. See
id. R. 91a.5(a), (b). “The trial court may, but is not required to, conduct an oral hearing on
the motion.” Id. R. 91a.6. When ruling on the motion, “the court may not consider
evidence in ruling on the motion and must decide the motion based solely on the pleading
of the cause of action, together with any pleading exhibits permitted by” the rules of civil
procedure. Id.; see City of Dallas v. Sanchez, 494 S.W.3d 722, 725 (Tex. 2016) (per
curiam).
Appellate courts review a trial court’s ruling on a Rule 91a motion under a de novo
standard. See City of Dallas, 494 S.W.3d at 724–25; In re Odebrecht Constr., Inc., 548
S.W.3d 739, 745–46 (Tex. App.—Corpus Christi–Edinburg 2018, orig. proceeding) (op.
on reh’g). “We apply a de novo standard because the availability of a remedy under the
facts alleged is a question of law and the rule's factual-plausibility standard is akin to a
legal-sufficiency review.” See City of Dallas, 494 S.W.3d at 725; In re Odebrecht Constr.,
Inc., 548 S.W.3d at 746.
IV. OFFICIAL CAPACITY CLAIMS
By their first issue, appellants claim the trial court erred when it failed to grant their
Rule 91a motion on the claims against them in their official capacity. First, with regard to
due process of law and equal protection claims (the constitutional claims), they argue: (1)
6 Ramirez only requested monetary damages for the alleged constitutional violations, which
are not allowed by law, and (2) Ramirez failed to state a viable claim because he did not
allege he was a member of a protected class. Second, regarding the breach of contract
claim, appellants contend Ramirez did not properly plead for damages as authorized by
§ 271.153 of the local government code, thus failing to invoke the statutory waiver of
immunity. We address each point in turn.
A. Constitutional Claims
1. Applicable Law
Appellants contend the trial court should have dismissed Ramirez’s due course of
law and equal protection causes of action because Ramirez only sought monetary
damages for these alleged violations, while constitutional claims can only afford equitable
relief. “[S]uits brought pursuant to constitutional provisions are limited to equitable relief
and do not allow a claim for monetary damages except to the extent specifically
enunciated in the constitutional provision.” City of Beaumont v. Bouillion, 896 S.W.2d 143,
149 (Tex. 1995); Nueces County v. Ferguson, 97 S.W.3d 205, 217 (Tex. App.—Corpus
Christi–Edinburg 2002, no pet.); see also Ambrose v. City of Brownsville, No. 13-15-
00039-CV, 2016 WL 1732194, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 28, 2016,
no pet.) (mem. op.) (holding a trial court lacked subject-matter jurisdiction when the
plaintiff pleaded a due process violation and only sought monetary relief).
Texas case law further explains that constitutional claims that would not allow a
plaintiff to recover monetary damages from a governmental entity would similarly not
allow recovery of these damages from a public official:
7 We realize that Bouillion literally addressed only the question whether a governmental entity may be sued for damages under the Texas Constitution. It did not involve the related question whether individual public officials may be personally sued for damages for violating an express Texas Constitution provision. However, we believe that the logic of Bouillion applies with equal force to a claim under the Texas Constitution against an individual public official. In other words, because the history and text of the Texas Constitution do not support such a claim against a governmental entity, it necessarily does not allow a damages action against a public official.
Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 471 (Tex. App.—Fort Worth 1997, writ
denied) (internal citations removed).
2. Analysis
Here, Ramirez first argued that the appellants’ termination of his employment
contract violated his rights under the Texas Constitution’s due course of law provision.
See TEX. CONST., art. I, § 19. This provision provides that “no citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by due course of the law of the land.” Id. Ramirez further contended that appellants
violated his rights under the Texas Constitution’s equal protection provisions. See id. art.
I, §§ 3, 3a. Article I, § 3 of the Texas Constitution establishes that, “all free men, when
they form a social compact, have equal rights, and no man, or set of men, is entitled to
exclusive separate public emoluments, or privileges, but in consideration of public
services.” Id. art. I, § 3. Section 3a sets forth that “equality under the law shall not be
denied or abridged because of sex, race, color, creed, or national origin.” Id. art. I, § 3a.
By their plain reading, none of these constitutional provisions “specifically enunciate” a
claim for monetary damages. City of Beaumont, 896 S.W.2d at 149; Ferguson, 97 S.W.3d
217; see also Ambrose, 2016 WL 1732194, at *2. Therefore, because Ramirez only
8 requested monetary damages in his pleadings, he has failed to state a claim waiving the
Housing Authority and the Commissioners’ governmental immunity. See City of
Beaumont, 896 S.W.2d at 149; Courtney, 946 S.W.2d at 471.
Ramirez responds that he requested equitable relief in his prayer, claiming he
generally prayed for “such other and further relief to which Plaintiff[] [is] justly entitled at
law and in equity.” Upon review of his first amended petition, however, we do not
encounter this language. Instead, we see that Ramirez only pled for “judgment against
Defendants for its actual damages as specified in the contract, in a sum in excess of the
minimum jurisdiction of this Court”, pre- and post-judgment interest, costs of suit,
attorney’s fees, and “general relief and all damages to which Plaintiff is entitled.” Citing
Cruz v. Ghani, Ramirez also claims that his “claims for back monetary funds [are] in the
nature of disgorgement” which “are an equitable remedy” and that “this is precisely what
[he] pled for.” See No. 05-17-00566-CV, 2019 WL 3968481, at *19 (Tex. App.—Dallas
Dec. 13, 2018, pet. denied) (mem. op.) (defining “disgorgement” as “an equitable
forfeiture of benefits wrongfully obtained”). Again, however, Ramirez did not pray for or
request “disgorgement” damages or any other kind of equitable remedy in his most recent
petition.
In sum, Ramirez’s constitutional claims should have been dismissed because they
sought only the recovery of monetary damages. See City of Beaumont, 896 S.W.2d at
149; Ferguson, 97 S.W.3d 217; see also Ambrose, 2016 WL 1732194, at *2. Accordingly,
the trial court was without subject-matter jurisdiction to consider these causes of action.
See City of Beaumont, 896 S.W.2d at 149. Because the resolution of this issue is
9 dispositive of Ramirez’s constitutional claims against the Housing Authority and its
Commissioners in their official capacity, we need not address Ramirez’s other argument
for why these claims warrant dismissal. See TEX. R. APP. P. 47.1 (“The court
of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”).
B. Breach of Contract Claim
Appellants further claim the trial court should have granted their jurisdictional
challenge to the breach of contract claim because Ramirez’s petition did not invoke the
statutory waiver of immunity under Texas Local Government Code § 271.152. See TEX.
LOC. GOV’T CODE ANN. § 271.152. Section 271.152 provides as follows:
A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.
Id. A “[c]ontract subject to this subchapter” means “a written contract stating the essential
terms of the agreement for providing goods or services to the local governmental entity
that is properly executed on behalf of the local governmental entity.” Id. § 271.151(2)(A);
see also La Joya Indep. Sch. Dist. v. Trevino, No. 13-17-00333-CV, 2019 WL 1487358,
at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 4, 2019, no pet.) (mem. op.). The
statute’s plain language waives a governmental entity's immunity from suit for breach of
a written contract. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); see also
Trevino, 2019 WL1487358, at *4.
10 To trigger § 271.152's waiver of immunity, though, a party must claim damages
within the limitations set out in § 271.153. Zachry Const. Corp. v. Port of Hous. Auth. of
Harris Cty., 449 S.W.3d 98, 110–11 (Tex. 2014) (“[Chapter 271] does not waive immunity
from suit on a claim for damages not recoverable under Section 271.153”); see also
Trevino, 2019 WL1487358, at *4. As relevant here, § 271.153 limits recoverable damages
to “the balance due and owed by the local governmental entity under the contract[.]” TEX.
LOC. GOV’T CODE ANN. § 271.153(a)(1); see also Trevino, 2019 WL1487358, at *4. A
“balance due and owed” is “simply the amount of damages for breach of contract payable
and unpaid.” Zachry, 449 S.W.3d at 111. In addition, § 271.153(b)(1) precludes recovery
of consequential damages “except as expressly allowed under Subsection (a)(1).” Id.
§ 271.153(b)(1); Zachry, 449 S.W.3d at 106.
The Housing Authority and its Commissioners argue that Ramirez did not invoke
the waiver of statutory immunity because he did not specifically plead for “the balance
due and owed by the local governmental entity under the contract . . .” See TEX. LOC.
GOV’T CODE ANN. § 271.153(a)(1). Instead, in his pleadings, Ramirez reported damages
for “current and future financial loss job security, past and future loss of reputation, and
severe emotional distress to Plaintiff which continues and is ongoing.” Further, Ramirez’s
prayer requested “judgment against Defendants for [his] actual damages as specified in
the contract, in a sum in excess of the minimum jurisdiction of this Court,” as well as pre-
and post-judgment interest, costs of suit, attorney’s fees, and “general relief and all
damages to which Plaintiff is entitled.”
11 The Texas Supreme Court’s opinion in Tooke v. City of Mexia guides our analysis.
See 197 S.W.3d 325 (Tex. 2006). In that case, the Tookes signed a three-year contract
with the City of Mexia (the City) to furnish labor and equipment for collecting brush and
leaves curbside within the City. Id. at 329. After fourteen months, however, the City
notified the Tookes that it had exhausted its budget for these services. Id. at 330. The
City eventually notified the Tookes that it was “‘discontinuing’ the contract for lack of
funding.” Id. The Tookes sued the City for breach of contract, alleging they had relied on
the three-year commitment when purchasing equipment. Id. They claimed lost profits and
attorney’s fees, among other unspecified damages. Id. The trial court ruled in favor of the
Tookes and the City appealed. Id. While the appeal was pending, the Texas Legislature
enacted §§ 271.151–.160 of the local government code. Id. The appellate court
determined that the statute's waiver of immunity was retroactive and covered the claims
raised by the Tookes. Id. It also concluded, however, that the damages awarded to the
Tookes were not allowed by the statute. Id.
The court noted that the Tookes did not claim that the City failed to pay for work
they had already performed; rather, they sought recovery only for lost profits they would
have made had the contract remained in place. Id. at 346. It categorized the Tookes’
damages as “consequential damages excluded from recovery under [§ 271.153].” Id. The
Court explained that even though the Tookes’ contract claim fell within § 271.152, the
City's immunity from suit was not waived because the Tookes did not claim damages
within § 271.153's limitations. Id.
12 Here, like the Tooke plaintiffs, Ramirez does not claim that the Housing Authority
and its Commissioners failed to pay him for work he completed as the Housing Authority’s
Executive Director. Rather, Ramirez seeks recovery of the wages he would have earned
had his employment contract continued through the end of its extended term. Under
Tooke, these future wages would be considered “lost profits,” which are “consequential
damages excluded from recovery” under § 271.153 of the local government code. See
Tooke, 197 S.W.3d at 346; City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350,
359 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (declining plaintiff's invitation to
depart from Tooke's treatment of lost profits, noting that the Texas Supreme Court held
that lost profits are consequential damages excluded from recovery under § 271.153); cf,
City of Pearsall v. Tobias, 533 S.W.3d 516, 526 (Tex. App.—San Antonio 2017, pet.
denied) (holding that, in a city employment contract with a severance clause stipulating
the city would pay “a cash payment, equal to one year's salary or the balance term of this
agreement, whichever is less, plus any accrued leave” if the employee was “involuntarily
terminated” or “suspended,” the severance pay triggered by the contract’s early
termination was a balance “due and owing” under § 271.153); City of Carrizo Springs v.
Howard, No. 04-18-00061-CV, 2018 WL 2943795, at *1 (Tex. App.—San Antonio June
13, 2018, no pet.) (mem. op.) (concluding that a “severance pay provision” which was
invoked when the city prematurely ended an employment contract invoked the statutory
waiver of immunity under § 271.153). Ramirez’s other damages, including “current and
future financial loss job security, past and future loss of reputation, and severe emotional
distress,” are also considered consequential damages and are not recoverable under the
13 statute. See TEX. LOC. GOV’T CODE ANN. § 271.153(b).
In light of the foregoing analysis, we conclude Ramirez’s pleadings do not invoke
chapter 271’s limited statutory waiver of immunity for the breach of this employment
contract claim.
C. Conclusion
We sustain the appellants’ first issue regarding the claims against the Housing
Authority and the Commissioners in their official capacities.
V. INDIVIDUAL CAPACITY CLAIMS AGAINST THE COMMISSIONERS
By their second issue, the Commissioners claim the trial court erred when it failed
to grant their Rule 91a motion on the causes of action raised against them in their
individual capacity because (1) constitutional claims cannot be brought against private
actors and (2) Ramirez’s contract was with the Housing Authority, not with the
Commissioners individually.
The Commissioners contend that Ramirez’s alleged violations of the due course
of law and equal rights protections cannot be brought against them as private actors. We
agree. To maintain a due course of law claim, the plaintiff must identify a liberty or property
interest that is entitled to governmental protection. See Nat'l Collegiate Athletic Ass'n v.
Yeo, 171 S.W.3d 863, 870 (Tex. 2005) (dismissing due process claim because plaintiff
asserted no interest protected by article I, § 19 of the Texas Constitution); Tex. A & M
Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 420 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (“Due course of law exists to prevent the State from depriving persons of liberty
14 and property without notice and hearing.”) (emphasis added).
Here, Ramirez attempts to enforce constitutional rights against the Commissioners
in their individual capacities. Because the individual commissioners are not the State or
an entity thereof, these claims cannot stand. See id. The Commissioners, as private
actors, were entitled to have Ramirez’s due course of law and equal protection causes of
action asserted against them dismissed for lack of basis in law. 2 See TEX. R. CIV. P. 91a.
The Commissioners assert “there is no contention that the Commissioners, in their
individual capacities, are parties to [Ramirez’s] contract.” The appellate record does not
include a copy of Ramirez’s employment contract. However, in his first amended petition,
Ramirez pleaded the following:
Plaintiff, [Ramirez], has been an employee of the Defendant, [the Housing Authority] for over 7 years. On June 12, 2015, Mr. Ramirez signed a three- year renewal Contract of Employment (herein referred to as the “Contract”) with Defendant, securing his position as the Executive Director.
Based on a plain reading of his pleadings, Ramirez indicates that he signed an
employment contract with the Housing Authority and not with any individual
commissioners.
“Breach of contract requires pleading and proof that (1) a valid contract exists;
(2) the plaintiff performed or tendered performance as contractually required; (3) the
defendant breached the contract by failing to perform or tender performance as
2 Ramirez’s brief also made an argument that 42 U.S.C. § 1983 “authorizes claims against those official in their individual capacity for compensatory and punitive damages.” However, Ramirez did not plead a cause of action under § 1983 in his first amended petition. Accordingly, because this issue was not before the trial court, we have no jurisdiction to review it. See Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019) (holding that legal issues raised for the first time on appeal are waived).
15 contractually required; and (4) the plaintiff sustained damages due to the breach.”
Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).
Here, the Commissioners contest the first element: that no valid contract exists between
Ramirez and the individual Commissioners. See id.; Mission Grove, LP v. Hall, 503
S.W.3d 546, 551–52 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“As a general rule,
a suit for breach of contract may not be maintained against a person who is not a party
to the contract.”). We agree with the Commissioners that Ramirez’s breach of contract
claim against them in their individual capacities should have been dismissed.
In sum, we conclude the constitutional claims and the breach of contract claim
should have been dismissed against the Commissioners as individuals. We sustain this
issue. 3
VI. OPPORTUNITY TO AMEND PLEADINGS
Ramirez claims that, should this court conclude that his causes of action are
deficient, he should have the opportunity to replead his causes of action on remand.
A. Applicable Law
Texas law provides that if a plaintiff’s pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the plaintiff should be permitted to replead. Tex. Dep't of
3 Ramirez’s response brief also argued that his declaratory action was proper. He argues that he
“seeks a declaration that the [appellants] specifically acted outside their Housing Authority under the contract’s clear due process requirements.” However, Ramirez withdrew his request for declaratory action in his first amended petition, before the trial court ruled on the Rule 91a motion to dismiss. Accordingly, this issue was not before the trial court and has been waived on appeal. See id. 16 Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). On the other hand, if
the pleadings affirmatively negate the existence of jurisdiction, then a plaintiff is not
entitled to replead. Id. at 227. In addition, “[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 County v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004); see Miranda, 133 S.W.3d at 231 (holding that the
parties had opportunity to amend their pleadings and were not entitled to another
opportunity to replead).
B. Analysis
At the outset, we note that Ramirez filed a response to the appellants’ special
exceptions in addition to a first amended pleading. In both the response and the first
amended petition, Ramirez indicated that he was withdrawing his claim for declaratory
judgment but otherwise still asserting the same constitutional and breach of contract
causes of action against the Housing Authority and the Commissioners in both their
official and individual capacities. Ramirez therefore had the opportunity to replead his
damages and request equitable relief for the alleged constitutional violations, but he did
not do so. See Sykes, 136 S.W.3d at 639; Miranda, 133 S.W.3d at 231. He also had the
opportunity to plead for damages that would invoke the statutory waiver of immunity under
§ 271.153 for his breach of contract claim, but this did not occur. See TEX. LOC. GOV’T
CODE ANN. § 271.153(a)(1). We conclude that Ramirez need not be given an additional
opportunity to replead on remand.
17 VII. ATTORNEY’S FEES
Under Rule 91a, “the court must award the prevailing party on the motion all costs
and reasonable and necessary attorney fees incurred with respect to the challenged
cause of action in the trial court.” TEX. R. CIV. P. 91a.7. Because we have sustained the
Housing Authority and the Commissioners’ issues, we conclude they are entitled to
attorney’s fees under the statute.
VIII. CONCLUSION
We reverse and remand with instructions to grant the Rule 91a motion, and for
proceedings consistent with this opinion.
LETICIA HINOJOSA Justice
Delivered and filed on the 25th day of February, 2021.