City of Ranger v. Ranger Airfield Maintenance Foundation

Opinion filed April 3, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00204-CV
__________

CITY OF RANGER, Appellant
V.
RANGER AIRFIELD MAINTENANCE FOUNDATION, Appellee

On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. CV2246534

OPINION
This appeal originates from the trial court’s denial of Appellant’s plea to the
jurisdiction based on governmental immunity. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(8) (West Supp. 2024) (authorizing an interlocutory appeal from
a trial court’s order that denies a governmental unit’s plea to the jurisdiction). In
its plea, Appellant challenged the claims asserted by Appellee, which arose from
Appellant’s alleged breach of contract for the conveyance of real property
associated with the operation of a municipal airport.
In 2018, Appellant, the City of Ranger (the City), executed a lease agreement
with Appellee, Ranger Airfield Maintenance Foundation (the Foundation), for the
maintenance and operation of Ranger Airfield (the Airfield). In 2022, the City and
the Foundation amended the lease agreement whereby the City agreed to convey
approximately eighty-one acres of airfield property to the Foundation in exchange
for the Foundation’s restoration of a historical hangar and the development of the
airfield property.
However, shortly after the parties executed the 2022 lease amendment, the
Foundation sued the City and asserted multiple causes of action—including breach
of contract, anticipatory breach of contract, and declaratory judgment under the
Texas Uniform Declaratory Judgement Act (UDJA)—stemming from the City’s
alleged refusal to permit third parties to construct hangars on the property, and the
City’s alleged failure to subdivide and convey the approximately eighty-one acres
of airfield property to the Foundation, as contemplated by the 2022 lease
amendment. The City filed a plea to the jurisdiction, and the trial court held a
hearing on the City’s plea. In an amended petition that was filed after the hearing,
the Foundation alternatively alleged that the Ranger city commissioners—who
were then joined as defendants to the underlying suit but are not parties to this
appeal—acted ultra vires when they voided the 2022 lease amendment. The trial
court denied the City’s plea. 1 0F

1
We note that while the Foundation amended its pleadings to join former and current Ranger city
commissioners, the City’s plea only addressed the City’s governmental immunity defense, not any
immunity that could or would be asserted by the Ranger city commissioners. As such, the trial court’s
disposition of the City’s plea and its order only relates to the parties to this appeal—the Foundation and
the City.

2
On appeal, the City argues that the trial court erred when it denied its plea
because: (1) the 2018 Lease and the 2022 lease amendment only pertain to the
City’s operation of an airport—a governmental function as a matter of law—which
does not waive its immunity; (2) the parties’ contract does not waive the City’s
immunity under Chapter 271 of the Local Government Code because “essential
terms” are absent from the contract, the contract is not for goods or services, and
the contract was not “properly executed”; and (3) the Foundation’s ultra vires
claims that it asserted against the Ranger city commissioners does not waive the
City’s immunity. For the reasons discussed below, we reverse and render in part,
and we remand in part.
I. Factual and Procedural Background
On December 4, 2018, the City and the Foundation executed a thirty-year
contract (the 2018 Lease). By its terms, the Foundation would operate, maintain,
and preserve Ranger’s historical grass airfield as a tribute to the 1920’s “Golden
Age of Aviation.” 2 The 2018 Lease provided that the Foundation would operate
1F

the property “for the purpose of aviation related activities, which includes normal
activities related to the operation and storage of an aircraft at a public airport;
aviation and civic events; and other ancillary uses.” The Foundation would also
retain the proceeds it derived from the operation of the airport as defined in the
contract.
As an option, the 2018 Lease allowed the Foundation to improve the property
by constructing new hangars and restoring the original 1928 airport hangar with the
City’s consent. The cost of any improvements to the property by the Foundation

2
The City highlights that the 2018 Lease states that the Foundation is a “non-profit corporation.”
However, the City argues that the Foundation was not a “non-profit corporation” at the time it executed
the contract with the City.

3
would be paid by the Foundation and any such improvements were to remain the
property of the Foundation upon the expiration of the 2018 Lease. In consideration
for the 2018 Lease and for its duration, the Foundation agreed to pay the City an
annual one-dollar fee. The 2018 Lease also includes definitions that describe what
constitutes a default or cancelation of the lease. Pursuant to the lease terms, the
Foundation would be limited to the recovery of prorated costs of any improvements
that it made to the Airfield because of the City’s cancelation of the lease.
The City alleges that around January 31, 2022, the Foundation appeared
before the Ranger city council to inquire about the City conveying the airfield
property to the Foundation; the Ranger city council’s deliberations concerning the
Foundation’s proposal—which ultimately resulted in the adoption of the 2022 lease
amendment—was conducted in a closed meeting. See TEX. GOV’T CODE ANN.
§ 551.072 (West 2017). Following the Ranger city council’s deliberations, the city
commissioners moved to approve the Foundation’s proposed amendment to the
2018 Lease (the 2022 lease amendment); the motion passed. 3 At some point, the
2F

Foundation “raised over $200,000 in funds to restore the City’s existing 1928
hangar to its historical size and appearance” and it sought permits from the City to
develop the eighty-one acres. According to the Foundation, the City then allegedly
breached the 2022 lease amendment, through the actions of its city commissioners,
when it ordered the Foundation to cease further construction and development of
the Airfield.
On December 30, 2022, the Foundation filed its original petition against the
City asserting causes of action for breach of contract, anticipatory breach of
contract, and specific performance to require the City to allow further construction

The City claims that the public was not notified of the City’s “sale” of airfield property to the
3

Foundation.

4
on the airfield property and to subdivide and convey the eighty-one acres of real
property to the Foundation. Additionally, the Foundation sought a declaratory
judgment under the UDJA that the City is obligated under the lease to convey
ownership of the eighty-one acres to the Foundation, and requested attorney’s fees
under Chapter 38 of the Civil Practice and Remedies Code and the UDJA. On
January 27, 2023, the City filed its original answer and asserted affirmative defenses
to the Foundation’s claims.
On March 24, 2023, the City filed its plea to the jurisdiction and argued that
it is immune from suit under the UDJA and Section 271.152 of the Local
Government Code. With its plea, the City attached a document titled “Eastland
County Appraisal District,” which includes various details about a property located
in and owned by the City. Later, on August 10, 2023, the Foundation filed its first
amended petition—which joined the current and former Ranger city commissioners
as defendants to the suit—and alleged that the city commissioners acted ultra vires
when they voided the 2022 amended lease agreement because the commissioners:
(1) acted without first providing notice to the Foundation of the requirement for a
1295 Ethics Disclosure Form and the opportunity to cure; and (2) acted outside the
scope of their legal or statutory authority by executing the 2022 lease amendment
and/or because their actions violated the City’s charter. The Foundation also
alleged that the City is not immune from suit because it acted in a proprietary
manner when it executed the 2022 lease amendment.
On July 27, 2023, and before the Foundation filed its first amended petition,
the trial court held a hearing on the City’s plea. At the hearing, the City argued that
the 2022 lease amendment: (1) did not contain all the “essential terms” of a contract,
such as the price to be paid; (2) did not define the time to perform; and (3) provided
only for the conveyance of land, and not goods or services. The City also argued

5
that the 2022 lease amendment was not “properly executed” because the Foundation
failed to include a 1295 Ethics Disclosure Form and did not comply with the
mandatory statutory requirements related to the conveyance of public property to
private parties under the Texas constitution and Chapters 253 and 272 of the Local
Government Code, which rendered any alleged immunity waiver ineffective
pursuant to Chapter 271’s “properly executed” requirement. Finally, the City
argued that the Foundation should not be permitted to replead the ultra vires claims
asserted against the Ranger city commissioners in their official capacities, that
attorney’s fees were unavailable to the Foundation, and that the Foundation’s
governmental-proprietary function dichotomy argument did not apply or waive the
City’s immunity. Because of the timing of the Foundation’s first amended petition,
the trial court allowed the City to file a post-hearing brief to respond to the
Foundation’s governmental-proprietary function dichotomy argument. 4 3F

In response, the Foundation reiterated the arguments alleged in its pleadings
and admitted that the eighty-one acres to be conveyed to the Foundation would be
developed for “private residences.” The Foundation also argued that the issue of
notice of the sale of municipal property should not be considered because the issue
was not ripe for adjudication. On August 17, 2023, the trial court signed its order
denying the City’s plea. This appeal followed.
II. Standards of Review and Applicable Law
A. Plea to the Jurisdiction
Before a court may decide a case, it is essential that the court possess subject-
matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.
2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to

4
The City’s supplemental response does not appear in the record.

6
challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a trial court
has subject-matter jurisdiction to decide a case is a question of law that we review
de novo. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); Ector
Cnty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).
The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action
without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction can
take two forms: (1) a challenge to the plaintiff’s pleadings regarding the allegations
of jurisdictional facts, or (2) an evidentiary challenge to the existence of
jurisdictional facts. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
635 (Tex. 2012); Miranda, 133 S.W.3d at 226–27. Thus, the plea may challenge
the pleadings, the existence of jurisdictional facts, or both. 5 Alamo Heights Indep.
4F

Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v. Copeland,
561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied).
When the plea challenges the plaintiff’s pleadings, we must determine if the
pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction
to hear and decide the case; in this regard, the plaintiff bears the burden to allege
such facts that affirmatively demonstrate the trial court’s subject-matter
jurisdiction. Tex. Dep’t of Crim. Justice v. Rangel, 595 S.W.3d 198, 205 (Tex.
2020); Miranda, 133 S.W.3d at 226. Therefore, we must accept as true all factual
allegations in the plaintiff’s pleadings, construe them liberally in the pleader’s
favor, and look to the pleader’s intent. Klumb v. Houston Mun. Emps. Pension Sys.,
458 S.W.3d 1, 8 (Tex. 2015); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.

5
In its plea, the City challenged the trial court’s subject-matter jurisdiction based on the state of
the Foundation’s pleadings regarding (1) the Foundation’s allegations of jurisdictional facts and (2) the
existence of jurisdictional facts in the record.

7
2002); Tex. Mun. League Intergovernmental Risk Pool v. City of Abilene, 551
S.W.3d 337, 342–43 (Tex. App.—Eastland 2018, pet. dism’d). If the allegations
create a fact question regarding jurisdiction, a trial court may not grant the plea
because the factfinder must resolve the fact issue. Rangel, 595 S.W.3d at 205; Tex.
Ass’n of Sch. Bds. Risk Mgmt. Fund v. Colorado Indep. Sch. Dist., 660 S.W.3d 767,
771 (Tex. App.—Eastland 2023, no pet.). But if the pleader fails to raise a fact
question on the jurisdictional issue, the trial court may rule on the plea as a matter
of law. Rangel, 595 S.W.3d at 205.
On the other hand, when the plea challenges the existence of jurisdictional
facts, we must move beyond the pleadings and consider evidence when necessary
to resolve the jurisdictional issues, even if the evidence implicates both subject-
matter jurisdiction and the merits of a claim. Clark, 544 S.W.3d at 770–71 (citing
Blue, 34 S.W.3d at 555); Weatherford Int’l, LLC v. City of Midland, 652 S.W.3d
905, 912 (Tex. App.—Eastland 2022, pet. denied). In such cases, the standard of
review mirrors that of a traditional summary judgment. Clark, 544 S.W.3d at 771
(citing Miranda, 133 S.W.3d at 225–26).
Thus, if the plaintiff’s factual allegations are challenged with supporting
evidence that is necessary to the consideration of the plea, the plaintiff must raise
at least a genuine issue of material fact to overcome the challenge to the trial court’s
subject-matter jurisdiction and avoid dismissal. Id. (citing Miranda, 133 S.W.3d at
221). In determining whether a material fact issue exists, “we must take as true all
evidence favorable to the plaintiff, indulging every reasonable inference and
resolving any doubts in the plaintiff’s favor.” Id. We cannot, however, disregard
evidence that is necessary to show context; nor can we disregard evidence and
inferences unfavorable to the plaintiff if reasonable jurors could not. Id. (citing City
of Keller v. Wilson, 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005)).

8
B. Immunity Principles
Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State, its agencies, and its political subdivisions from lawsuits and
liability for damages. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374
(Tex. 2006). Governmental immunity is derived from the State’s sovereign
immunity. Therefore, the State’s political subdivisions, which include units of local
government, such as the City, are afforded the same immunity protections as the
State. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); Weatherford
Int’l, 652 S.W.3d at 912; Goodson v. City of Abilene, 295 S.W.3d 692, 694 (Tex.
App.—Eastland 2009, no pet.).
Governmental immunity embraces two concepts: immunity from suit and
immunity from liability. Reata, 197 S.W.3d at 374; Tooke v. City of Mexia, 197
S.W.3d 325, 332 (Tex. 2006). Governmental immunity deprives a trial court of
subject-matter jurisdiction over actions in which certain governmental units have
been sued unless the unit has expressly consented to suit. Reata, 197 S.W.3d at
374; Miranda, 133 S.W.3d at 224; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 696 (Tex. 2003). On the other hand, immunity from liability is an affirmative
defense, not a matter of subject-matter jurisdiction; however, this immunity must
still be waived. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Miranda, 133
S.W.3d at 224. Because immunity from suit defeats a trial court’s subject-matter
jurisdiction to hear and decide the case, it is properly raised in a plea to the
jurisdiction. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022);
Miranda, 133 S.W.3d at 225–26.
By challenging a governmental unit’s assertion of immunity, a plaintiff may
overcome a governmental unit’s immunity defense only if the plaintiff demonstrates
that the legislature has clearly and unambiguously waived the unit’s immunity by

9
statute. Rattray v. City of Brownsville, 662 S.W.3d 860, 865 (Tex. 2023); Dohlen,
643 S.W.3d at 392 (citing Tooke, 197 S.W.3d at 330). Without such a waiver, the
trial court lacks subject-matter jurisdiction to proceed, and the claims alleged
against the governmental unit are barred. Rattray, 662 S.W.3d at 865; Pecan Valley
Mental Health Mental Retardation Region v. Doe, 678 S.W.3d 577, 586 (Tex.
App.—Eastland 2023, pet. denied). Accordingly, the trial court must dismiss the
suit if the plaintiff cannot satisfy the burden of affirmatively demonstrating the trial
court’s jurisdiction to hear and decide the case by showing that the asserted claim
falls within a statutory waiver of immunity. Rattray, 662 S.W.3d at 865.
C. Statutory Interpretation
Statutory interpretation is a question of law that we review de novo. Sw.
Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016); Butler v. City of Big
Spring, 652 S.W.3d 149, 152 (Tex. App.—Eastland 2022, pet. denied). When
construing a statute, our primary objective is to “ascertain and give effect to the
Legislature’s intent.” Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex.
2024) (quoting Odyssey 2020 Acad. Inc. v. Galveston Cent. Appraisal Dist., 624
S.W.3d 535, 540 (Tex. 2021)); TGS-NOPEC Geophysical Co. v. Combs, 340
S.W.3d 432, 439 (Tex. 2011); see GOV’T § 312.005 (West 2013).
We begin by examining the plain meaning of the statute’s language. Crosstex
Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014). We
derive legislative intent from the statute as a whole and its plain language, rather
than from isolated portions of it. Odyssey, 624 S.W.3d at 540; City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). That is, we read statutes
contextually to give effect to every word, clause, and sentence because every word
and phrase is presumed to have been used intentionally, with a meaning and a
purpose. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018);

10
City of Stephenville v. Belew, 692 S.W.3d 347, 362 (Tex. App.—Eastland 2024,
pet. denied). “Words and phrases shall be read in context and construed according
to the rules of grammar and common usage.” GOV’T § 311.011; Cadena
Commercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325
(Tex. 2017); see also Johnson, 691 S.W.3d at 847 (Statutory terms that are not
defined by the legislature “usually bear their common, ordinary meaning.”).
“If [the language of] the statute is clear and unambiguous, we must read the
language according to its [plain and] common meaning ‘without resort to rules of
construction or extrinsic aids.’” Crosstex Energy Servs., 430 S.W.3d at 389
(quoting State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)); Butler, 652 S.W.3d
at 152. In that regard, we will presume that the legislature intended for each of the
statute’s words to have a purpose. Johnson, 691 S.W.3d at 847. Further, if a statute
is unambiguous, we adopt the interpretation that is supported by the statute’s plain
language unless such an interpretation would yield an absurd result. TGS-NOPEC,
340 S.W.3d at 439 (citing Tex. Dep’t of Protective & Regulatory Servs. v. Mega
Child Care, 145 S.W.3d 170, 177 (Tex. 2004)). “A statute is ambiguous if its words
are susceptible to two or more reasonable interpretations and we cannot discern
legislative intent from the [statutory] language alone.” Fort Worth Transp. Auth.,
547 S.W.3d at 838.
III. Analysis
On appeal, the City argues that the trial court erred when it denied the City’s
plea because: (1) the City is entitled to governmental immunity because it acted in
its governmental capacity, and, therefore, exercised a governmental function, when
it executed the 2018 Lease and 2022 lease amendment with the Foundation; (2) the
City did not waive its immunity from suit under Chapter 253, Chapter 271, the
Texas constitution, or any other relevant statute, based on the Foundation’s asserted

11
breach-of-contract claims that are related to the 2022 lease amendment; (3) the
Foundation’s ultra vires claims against the Ranger city commissioners do not waive
the City’s governmental immunity, nor did the City waive its immunity under the
UDJA; and (4) the City is immune from the Foundation’s claim for attorney’s fees.
We note that although the trial court denied the City’s plea, the trial court’s
order does not recite the basis for its denial—whether the plea was denied based on
the City’s alleged exercise of a proprietary function or because the City waived its
immunity.
A. Governmental Immunity
In its first issue, the City argues that it is immune from suit because it engaged
in a governmental function when it contracted with the Foundation—with both the
2018 Lease and the 2022 lease amendment—for the maintenance and operation of
the Airfield. Here, the Foundation does not dispute that the City is a local
governmental entity, but instead argues that the City’s immunity is waived because
the City acted in a proprietary capacity when it executed these agreements.
Generally, municipalities may exercise their broad powers through
proprietary and governmental roles. Gates v. City of Dallas, 704 S.W.2d 737, 738
(Tex. 1986); Copeland, 561 S.W.3d at 724. The governmental-proprietary function
dichotomy, which stems from the common law, “recognizes that immunity protects
a governmental unit from suits based on its performance of a governmental function
but not a proprietary function.” Wasson Interests, Ltd. v. City of Jacksonville, 559
S.W.3d 142, 146 (Tex. 2018) (Wasson II) (citing Wasson Interests, Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016) (Wasson I)). The focus of this
inquiry is “whether the municipality was engaged in a governmental or proprietary
function when it entered the contract, not when [the contract was] allegedly
breached.” Id. at 149. Nevertheless, a municipality maintains the discretion as to

12
how it exercises a governmental function, and neither that discretion nor the
municipality’s reason(s) for engaging in an activity may convert a governmental
function into a proprietary function. Hunnicutt v. City of Webster, 641 S.W.3d 584,
591–92 (Tex. App.—Houston [14th Dist.] 2022, no pet.); City of San Antonio v.
Butler, 131 S.W.3d 170, 178 (Tex. App.—San Antonio 2004, pet. denied).
To determine the boundaries of governmental immunity in the contract-
claims context, we consider the relevant statutory provisions as well as the common
law. Wasson II, 559 S.W.3d at 147–48. Additionally, we look to the definitions
for governmental and proprietary functions that the legislature set forth in the Texas
Tort Claims Act (TTCA) to aid in our analysis. See CIV. PRAC. & REM. ch. 101, et
seq. (West 2019); City of League City v. Jimmy Changas, Inc., 670 S.W.3d 494,
500 (Tex. 2023); Wasson II, 559 S.W.3d at 147–48 (quoting Wasson I, 489 S.W.3d
at 439); Copeland, 561 S.W.3d at 724. Under the TTCA, governmental
functions are defined as “those functions that are enjoined on a municipality by
law and are given it by the state as part of the state’s sovereignty, to be
exercised by the municipality in the interest of the general public.” CIV. PRAC. &
REM. § 101.0215(a). The TTCA provides a non-exhaustive list of thirty-six
functions that are deemed to be governmental functions in the context of tort claims,
which include the operation of airports and museums. See CIV. PRAC. & REM.
§ 101.0215(a)(10), (14); Wasson I, 489 S.W.3d at 439.
Proprietary functions, on the other hand, are defined in the TTCA as “those
functions that a municipality may, in its discretion, perform in the interest of the
inhabitants of the municipality.” CIV. PRAC. & REM. § 101.0215(b). Proprietary
functions include “the operation and maintenance of a public utility,” “amusements
owned and operated by the municipality,” and “any activity that is abnormally
dangerous or ultrahazardous.” Id. A proprietary action may be treated as a

13
governmental action if the proprietary action is “essential” to a governmental
action. Wasson II, 559 S.W.3d at 153.
The City advances two contentions to support its argument that it acted in a
governmental capacity when it executed these agreements. First, the City contends
that it performed a governmental function when it contracted with the Foundation
because the activities described in the 2018 Lease and the 2022 lease amendment—
namely, the operation of an airport and museum—are expressly listed as
governmental functions under the TTCA and should be construed as such as a
matter of law. See CIV. PRAC. & REM. §101.0215(a)(10), (14). Second, the City
argues that the act of contracting with the Foundation for the 2022 lease amendment
was a governmental function based on the common law factors enumerated in
Wasson II. See Wasson II, 559 S.W.3d at 153–54; Wheelabrator Air Pollution
Control, Inc. v. City of San Antonio, 489 S.W.3d 448, 452 (Tex. 2016) (citing CIV.
PRAC. & REM. § 101.0215(b)(1)). Conversely, the Foundation contends that the
City performed a proprietary function when it executed the 2022 lease amendment
because (1) the TTCA classifications are “merely guidance” in determining the
governmental-proprietary function dichotomy in a contract context, and (2) the
application of the Wasson II factors establishes that the City performed a proprietary
function when it contracted with the Foundation.
In considering which statutory provisions are instructive in our immunity
analysis, we note that the Texas constitution specifically authorizes the legislature
to define governmental and proprietary functions “for all purposes.” Jimmy
Changas, 670 S.W.3d at 499 (citing TEX. CONST. art. XI, § 13). In this case, the
City relies on the inclusion of “airports” and “museums” in the TTCA’s list of
governmental functions to support its assertion that the conveyance of the Airfield
property to the Foundation constituted a governmental function. See CIV. PRAC. &

14
REM. § 101.0215(a)(10), (14). We agree that the TTCA plainly designates both
“airports” and “museums” as governmental functions. Id. As such, because the
operation of a municipal airport is a governmental function under the TTCA, this
designation “aids our inquiry” in cases where breach-of-contract claims are
asserted, such as the one before us. See Jimmy Changas, 670 S.W.3d at 500.
In Dallas/Fort Worth International Airport Board v. Vizant Technologies,
LLC, the Texas Supreme Court addressed whether a local governmental entity that
contracted for services related to “analyzing and reducing the airport’s expenses”
had by its conduct engaged in a governmental function. 576 S.W.3d 362, 367 (Tex.
2019). In ascertaining whether governmental immunity applied to shield the local
government entity from suit, the court looked to other statutes—namely
Section 22.002(a) of the Texas Transportation Code—to determine whether the
legislature designated a particular function as governmental or proprietary. Vizant
Techs., LLC, 576 S.W.3d at 367 (quoting TEX. TRANSP. CODE ANN. § 22.002(a)
(West 2022)); see also City of Dallas v. Oxley Leasing N. Loop, LLC, No. 05-21-
00241-CV, 2021 WL 5275828, at *4 (Tex. App.—Dallas Nov. 12, 2021, pet.
denied) (mem. op.). The supreme court noted that the legislature “has
unambiguously declared that the ‘maintenance, operation, [and] regulation’ of an
airport and the ‘exercise of any other power granted’ for that purpose, whether
exercised ‘severally or jointly’ by local governments, ‘are public and governmental
functions, exercised for a public purpose, and matters of public necessity.’” Vizant
Techs., LLC, 576 S.W.3d at 367 (quoting TRANSP. § 22.002(a)). Thus, the court
held that the local governmental entity was engaged in a governmental function
when it contracted for services that were related to the analysis of airport expenses.
Id. at 364–67.

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Here, because the City executed the contract with the Foundation for the
purpose of the Foundation maintaining and operating the Airfield as an airport and
constructing hangars on the property, we conclude that, in doing so, the City acted
in its governmental capacity and thus performed a governmental function.
Therefore, the City’s governmental immunity is not waived and protects it from the
Foundation’s suit. See id.; City of Cleburne v. RT Gen., LLC, No. 10-20-00037-
CV, 2020 WL 7394519, at *4 (Tex. App.—Waco Dec. 16, 2020, no pet.) (mem.
op.) (the City was performing a governmental function when it entered into a lease
agreement because the lease involved the operation, construction, and maintenance
of a hangar at the City’s municipal airport); see also City of El Paso v. Viel, 523
S.W.3d 876, 885 (Tex. App.—El Paso 2017, no pet.) (the City of El Paso engaged
in a governmental function when it leased a cargo warehouse located on airport
property); Hale v. City of Bonham, 477 S.W.3d 452, 457 (Tex. App.—Texarkana
2015, pet. denied) (a municipality’s operation of an airport, including executing a
lease agreement that involved the airport, is a governmental function.); see also City
of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 379 (Tex. App.—Dallas 2004,
no pet.).
Moreover, because the legislature expressly designated the operation of an
airport as a governmental function in both the TTCA and the Transportation Code,
we need not address the Wasson II factors in our analysis. See RT Gen., LLC, 2020
WL 7394519, at *3; Elizabeth Benavides Elite Aviation, Inc. v. City of Laredo,
No. 04-19-00717-CV, 2020 WL 2044678, at *3 (Tex. App.—San Antonio Apr. 29,
2020, no pet.) (mem. op.). 6 5F

6
Both the City and the Foundation in their briefs discuss whether the TTCA should apply to a
private or public airport. However, because the plain language of Section 101.0215 of the TTCA and
Section 22.002(a) of the Transportation Code do not differentiate between a private or public airport, and

16
Accordingly, we sustain the City’s first issue.
B. Waiver of Immunity
However, our resolution of the City’s first issue is not dispositive of this
appeal because the Foundation asserts that, even if the operation of the airport is a
governmental function, the City nevertheless waived its immunity for the
Foundation’s claim for breach of contract.
In its second issue, the City argues that its immunity is not waived under
Chapter 271 of the Local Government Code for any claims related to the execution
or breach of the 2022 lease amendment because the amendment (1) lacks essential
terms, (2) is not a contract for goods or services, and (3) was not “properly
executed.” See TEX. LOC. GOV’T CODE ANN. § 271.151 et seq. (West 2016 & Supp.
2024).
Under Sections 271.151 and 271.152, a local governmental entity—which
includes a municipality—may waive its immunity for a breach-of-contract claim if
the contract states that the essential terms of the agreement are for providing goods
or services to the local governmental entity and the contract is “properly executed”
on behalf of the local governmental entity. LOC. GOV’T § 271.151, .152. Actual
damages, specific performance, or injunctive relief may be granted to a claimant in
a suit brought against a local governmental entity for the breach of a contract as
described by Section 271.151(2)(B). Id. § 271.153(c).
Among other things, the Foundation contends that the City has waived the
argument that it was not authorized by any statute or the constitution to execute a
contract under Chapter 271. See id. § 271.152 (“A local governmental entity that

because neither party cites to any authority to support their contention on this issue, we do not address it.
However, we do note that the 2018 Lease states that the “Ranger Municipal Airport will remain a Public
Airport open for Public use.”

17
is authorized by statute or the constitution to enter into a contract and [does so]
subject to [Chapter 271] waives sovereign immunity to suit for the purpose of
adjudicating a claim for breach of the contract.”). We will address the parties’
waiver arguments below.
1. “Essential Terms”
The City first argues that the Foundation’s pleadings do not establish that the
City waived its governmental immunity because the 2022 lease amendment lacks
“essential terms” as contemplated by Section 271.151. The City further argues that
the phrase “essential terms” has been interpreted to include the time of performance,
the price to be paid, and the services to be rendered. See Williams, 353 S.W.3d at
138–39. For example, the City asserts that the 2022 lease amendment does not
specify what constitutes the “restoration” of the hangar to its historical 1928 “size
and appearance.” According to the City, the 2022 lease amendment lacks “essential
terms” because it does not state “the amount of money the Foundation must spend
in order to restore the historic ‘1928 . . . appearance’ of the original hangar[,] . . .
[or the] standards related to construction, remediation, materials required, [or]
interior and exterior finish” for the restoration of the hangar. Therefore, the City
contends that the 2022 lease amendment lacks the terms that would allow a trial
court to accurately determine what the phrase “historical size and appearance”
means with a reasonable degree of certainty and definiteness. See City of Ames v.
City of Liberty, No. 09-22-00092-CV, 2023 WL 2180967, at *8 (Tex. App.—
Beaumont Feb. 23, 2023, pet. denied) (mem. op.).
In response, the Foundation argues that (1) the 2022 lease amendment
includes all the essential terms of the contract when it is read in conjunction with
the 2018 Lease, (2) the manner and parameters of the airport restoration are not
essential to the bargain between the City and the Foundation, and (3) because the

18
Foundation was required to provide “restoration services” for the hangars, this is
sufficient to establish the essential terms of a contract. The Foundation cites to
Clear Creek Independent School District v. Cotton Commercial USA, Inc., 529
S.W.3d 569, 581 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) to support
its argument.
When a dispute exists concerning a contract’s meaning, we must ascertain
and give effect to the parties’ expressed intent, and objective manifestations of
intent control. See Bluestone Nat. Res. II, LLC v. Randle, 620 S.W.3d 380, 387
(Tex. 2021); URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 763–64 (Tex. 2018). As
such, we presume that the parties intended “what the words of their contract say,”
and we interpret the contract’s language according to its “plain, ordinary, and
generally accepted meaning.” URI, 543 S.W.3d at 764; Rustic Nat. Res. LLC v. DE
Midland III LLC, 669 S.W.3d 494, 500 (Tex. App.—Eastland 2022, pet. denied).
An ambiguity does not arise because the parties to an agreement advance
different interpretations. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212,
219 (Tex. 2022) (citing Apache Deepwater, LLC v. McDaniel Partners, Ltd., 485
S.W.3d 900, 904 (Tex. 2016)). If we determine that an agreement’s language can
be given a certain or definitive legal meaning or interpretation, the agreement is not
ambiguous, and we will construe it as a matter of law. Barrow-Shaver Res. Co. v.
Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 479 (Tex. 2019) (citing El Paso Field
Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012)).
Although it is difficult to definitively establish which terms of an agreement
are essential, “a contract must at least be sufficiently definite to confirm that both
parties actually intended to be contractually bound.” Fischer v. CTMI, L.L.C., 479
S.W.3d 231, 237 (Tex. 2016); see Fort Worth Indep. Sch. Dist. v. City of Fort
Worth, 22 S.W.3d 831, 846 (Tex. 2000); T.O. Stanley Boot Co. v. Bank of El Paso,

19
847 S.W.2d 218, 221 (Tex. 1992). However, “if an instrument admits of two
constructions, one of which would make it valid and the other invalid, the former
must prevail.” Fischer, 479 S.W.3d at 239 (quoting Dahlberg v. Holden, 238
S.W.2d 699, 701 (Tex. 1951)).
Material and essential terms are those that the parties “would reasonably
regard as vitally important ingredients of their bargain.” Id. at 237 (internal
quotation marks omitted). Whether a contract contains all essential terms should
be determined on a case-by-case basis, and the “primary purpose” of the contract
governs our determination. Barrow-Shaver, 590 S.W.3d at 481–82. Therefore, a
“court may uphold an agreement by supplying missing terms but may not create a
contract where none exists and, generally, may not interpolate or eliminate essential
terms.” Jennings v. Jennings, 625 S.W.3d 854, 862 (Tex. App.—San Antonio 2021,
pet. denied).
Looking to the language of the 2018 Lease, it sets forth the parties to be
bound (the Foundation and the City), outlines the lease obligations for both parties,
and describes the Airfield property. The 2018 Lease also states that the Airfield
“will be used for the purpose of maintaining and operating the Airport and
improvements as a tribute to the Golden Age of Aviation as one of the few publicly
owned grass airfields still operating with history dating back to 1911.” As for the
construction of hangars, the 2018 Lease states that “[t]he [Foundation] may, for its
purposes and approved activities, erect a building, or buildings, of a design, décor,
purpose and in a place which represent the Golden Age of Aviation defined to be
the 1920’s to the 1930’s and protects the historical aspect of the Airport.”
The 2022 lease amendment also contains two provisions concerning the
construction and restoration of hangars on the Airfield property. For the restoration
of hangars, the contract states: “1928 Hangar. [The Foundation] shall restore [the

20
City’s] 60’x60’ 1928 hangar to its historical 1928 size and appearance.” For new
hangars, the contract states: “[The Foundation] shall permit not less than three
(3) new, vintage-style appearance aircraft hangars.” Upon the completion of these
projects, according to the lease “[the City] shall convey to [the Foundation] the
Airport and Airport Property as set out in Exhibit ‘A.’” Attached to the 2022 lease
amendment is a survey of the Airfield property that the City is to convey to the
Foundation. Further, the 2022 lease amendment contains a provision that the
“current runways and infield” would not be developed by the Foundation and that
“no currently existing runway (longest being Runway 1/19, 3400 feet) [would] be
shortened more than 25% in length or in any way permanently closed.”
Based on the plain language of the 2022 lease amendment, there is a clear
understanding and intent that the “primary purpose” of the lease and the lease
amendment is for the Foundation to restore and operate the Airfield property—
including the restoration and development of hangars on the property. Moreover,
the restored hangars would be constructed to resemble a historical 1928 airport
hangar. The City was to allow for the construction of at least three vintage style
hangars—the description of which is sufficiently definite in the contract—on the
Airfield property in exchange for conveying the eighty-one acres of Airfield
property to the Foundation for their services. See Clear Creek, 529 S.W.3d at 581
(concluding that a contract contained all the essential terms when a party’s
obligation was described as “restoration services” under the contract). Therefore,
we conclude that the 2022 lease amendment contains all the “essential terms” that
are necessary to enforce the agreement between the City and the Foundation.
2. Goods or Services
The City next argues that the purpose of the 2022 lease amendment was not
to provide “goods and services,” but rather it was a contract to convey publicly

21
owned property to a private party. To support its argument, the City contends that
(1) the Foundation “judicially admitted” that the purpose of the contract was for the
City to convey real property to the Foundation, (2) the specific performance that the
Foundation sought pertains to this conveyance, and (3) any services rendered by the
Foundation were neither essential terms nor the primary purpose of the contract.
As the supreme court stated in Lubbock County Water Control and
Improvement District v. Church & Akin, L.L.C., “a contractual relationship can
include both the granting of a property interest and an agreement to provide goods
or services.” 442 S.W.3d 297, 302 (Tex. 2014) (quoting Coinmach Corp. v.
Aspenwood Apartment Corp., 417 S.W.3d 909, 925 (Tex. 2013)). Thus, any
written, authorized contract that states that the essential terms of an agreement are
for providing services to a governmental entity will trigger the waiver of immunity
under Chapter 271. Id. As we have said, the primary purpose of the 2022 lease
amendment was for the Foundation to provide services to the City in exchange for
the City’s conveyance of the Airfield property to the Foundation upon the
completion of the construction and restoration of the airport hangars. Therefore,
the 2022 lease amendment to provide services to the City would trigger a waiver of
the City’s immunity under Chapter 271 only if the amendment was “properly
executed.” See id.
3. “Properly Executed”
The City contends that the 2022 lease amendment was not “properly
executed” because: (1) the amendment conveys public property to a third party—
the Foundation—without the Foundation having complied with the required
bidding and sales processes under Chapters 253 and 272 of the Local Government
Code; (2) the Foundation did not comply with Section 2252.908 of the Government
Code and failed to submit a 1295 Ethics Disclosure form at the time it

22
submitted the 2022 lease amendment to the City for approval; and (3) the Texas
constitution prohibits the granting of public funds to private parties. See LOC.
GOV’T §§ 253.008, 272.001; GOV’T § 2252.908(d) (West Supp. 2024); Bowling v.
City of El Paso, 525 S.W.2d 539, 541 (Tex. App.—El Paso 1975), writ ref’d n.r.e.,
529 S.W.2d 509 (Tex. 1975).
In response, the Foundation argues that: (1) “the notice and bidding
requirements of [Section] 272.001(a) do not apply to ‘land that the political
subdivision wants to have developed by contract with an independent foundation’”;
(2) “the Foundation should be exempt from these requirements because it will soon
complete its registration as a non-profit organization under Section 253.011”; and
(3) there is sufficient consideration from the Foundation to support the City’s
conveyance of the Airfield property under the Texas constitution.
Because the term “properly executed” is not defined in Section 271.151, we
must construe the plain meaning of this phrase. See El Paso Educ. Initiative, Inc. v.
Amex Properties, LLC, 602 S.W.3d 521, 531 (Tex. 2020). “In this context, a
contract is properly executed when it is executed in accord with the statutes and
regulations prescribing that authority.” Id. at 532. “‘Proper’ means ‘[a]ppropriate,
suitable, right, fit, or correct; according to the rules.’” Id. (citing BLACK’S LAW
DICTIONARY (11th ed. 2019)) (emphasis added). As such, for the 2022 lease
amendment to be “properly executed” it must have been executed in accordance
with the rules that govern the conveyance and sale of property by a governmental
entity.
The Texas Supreme Court recently addressed how H.B. 1817 (enacted as
Section 2252.908(f-1) in the Government Code) affected the requirements for filing
a disclosure of interested parties, its application to contracts, and its effect on the
Chapter 271 “properly executed” requirement. See Legacy Hutto, LLC v. City of

23
Hutto, 687 S.W.3d 67, 68–69 (Tex. 2024). Section 2252.908(f-1) states, in part,
that contracts may be voidable for failure to provide the disclosure of interested
parties if:
(1) the governmental entity . . . submits to the business entity
written notice of the business entity’s failure to provide the required
disclosure; and
(2) the business entity fails to submit to the governmental entity
. . . the required disclosure on or before the 10th business day after the
date the business entity receives the written notice.
GOV’T § 2252.908(f-1). In discussing how H.B. 1817 affects a court’s
determination of whether a contract is “properly executed,” the supreme court in
Legacy Hutto stated:
We presume that statutes only apply prospectively. Subaru of Am.,
Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002).
H.B. 1817, however, rebuts that presumption by expressly providing
the following specific rule for any “suit challenging the validity of a
contract described by Section 2252.908(b)” that was still “pending”
when H.B. 1817 took effect: The “court . . . may require the
governmental entity . . . to provide the written notice required under
Section 2252.908(f-1) . . . if the court finds that failure to enforce that
requirement would cause an inequitable or unjust result for the parties
to the suit.” Act of May 18, 2023, 88th Leg., R.S., H.B. 1817, § 2.
The new statute further provides that a contract executed before H.B.
1817 took effect “is presumed to have been properly executed” under
Section 2252.908 if, before that date, a governmental entity had not
filed “an action to void or invalidate the contract” in a Texas court. Id.
§ 3.
Legacy Hutto, 687 S.W.3d at 69. Therefore, for the same reasons articulated by the
supreme court in Legacy Hutto, we conclude that the 2022 lease amendment is
presumed to have been “properly executed” pursuant to Section 2252.908 because
the City did not file an action to void or invalidate the contract in a Texas court
before H.B. 1817 became effective. Id.; see GOV’T § 2252.908.

24
Next, we must ascertain whether the 2022 lease amendment complies with
the requirements for the notice of a sale or exchange of land under Chapters 253
and 272 of the Local Government Code. Chapter 253 allows a municipality to
convey real property or an interest in real property without complying with the
notice and bidding requirements of Section 272.001 or other applicable laws. See
LOC. GOV'T §§ 253.011, 272.001. However, Section 272.001 does not apply to the
Foundation because while the Foundation attached a certificate of formation of a
nonprofit corporation to its pleadings, the Foundation concedes on appeal that it
was not a non-profit corporation or foundation and did not enjoy such status at the
time it executed the contract with the City. Despite this, the Foundation states that
it “should be exempt from these requirements because it will soon complete its
registration as a non-profit organization under Section 253.011 of the Local
Government Code.” Therefore, we look to Section 272.001 to determine if the
Foundation is exempt from the notice and bidding requirements as an “independent
foundation.”
Section 272.001 states:
(a) [With certain exceptions], before land owned by a political
subdivision of the state may be sold or exchanged for other land, notice
to the general public of the offer of the land for sale or exchange must
be published in a newspaper of general circulation. The notice must
include a description of the land, including its location, and the
procedure by which sealed bids to purchase the land or offers to
exchange the land may be submitted. The notice must be published on
two separate dates and the sale or exchange may not be made until after
the 14th day after the date of the second publication.

(b) The notice and bidding requirements of Subsection (a) do not apply
to the types of land and real property interests described by this
subsection and owned by a political subdivision. The land and those
interests described by this subsection may not be conveyed, sold, or

25
exchanged for less than the fair market value of the land or interest
unless the conveyance, sale, or exchange is with one or more abutting
property owners who own the underlying fee simple. The fair market
value is determined by an appraisal obtained by the political
subdivision that owns the land or interest. . . . This subsection applies
to:
....
(4) land that the political subdivision wants to have developed by
contract with an independent foundation.
LOC. GOV’T § 272.001 (emphasis added). Consequently, for the Foundation to be
exempt from Section 272.001’s notice and bidding requirements, it must have
pleaded facts which established that: (1) the land was not conveyed for less than
fair market value; (2) the fair market value of the property was determined by an
appraisal obtained by the City; and (3) the Foundation is an “independent
foundation” and the City desired to develop the land to be conveyed under the
contract. Id.
Here, the Foundation failed to plead or establish that they were exempt from
the notice and bidding requirements under Section 272.001. Although the City
attached an “appraisal document” to its plea, it is unclear from the language of this
document as to what the “fair market value” of the Airfield property truly is. This
document states the total acres for the land (81.16), and that the land’s “market
value” is $297,150. The document then states that the improvement value of the
property is $215,830, but it is unclear what “improvement” this refers to. Further,
the document includes a section for “building detail,” which includes two
buildings—one with an area of 11,600 square feet, and a second building with an
area of 392 square feet—each with a corresponding “total” and “replacement”
value. Based on this information, we cannot, and thus the trial court could not at
the time it ruled on the City’s plea, determine the fair market value of the Airfield

26
property. But cf. Killam Ranch Properties, Ltd. v. Webb Cnty., 376 S.W.3d 146,
156 (Tex. App.—San Antonio 2012, pet. denied). Furthermore, this document was
proffered by the City in support of its plea, not by the Foundation with its original
or amended pleadings. As such, the Foundation’s pleadings are devoid of any
information, allegation, or recitation that would sufficiently allow the trial court
(1) to conclude that the City obtained an appraisal for the fair market value of the
property, or (2) to accurately determine the fair market value of the property.
Moreover, the Foundation’s pleadings do not provide, or otherwise explain,
the monetary value of the services that it provided to the City in exchange for the
eighty-one acres of conveyed land. The 2022 lease amendment does not state
whether the City conveyed the land for its “fair market value”; rather, the contract
only states that it was executed by the parties “for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by both [the City] and
[the Foundation].” Neither the Foundation’s pleadings nor the declaration of its
founder, Jared Calvert, explain the monetary value of the 1928 hangar restoration.
While Calvert stated that the Foundation has “raised over $200,000 in funds to
restore the City’s existing 1928 hangar” and “has ordered over $100,000 in
supplies,” there is no evidence that these funds were tendered to the City in
consideration for the eighty-one acre conveyance, or that the actual fair market
value of the property was ever determined.
In this case, we cannot say that the City conveyed the Airfield property to the
Foundation for fair market value—as Section 272.001(b) requires—or that there
was compliance with Section 272.001’s notice and bidding requirements.
Therefore, because the 2022 lease amendment was not “properly executed”
according to the rules, the City did not waive its immunity from suit under
Chapter 271. See LOC. GOV’T §§ 271.151(2)(A), .152; El Paso Educ. Initiative,

27
602 S.W.3d at 531–33. 7 6F Because we have concluded that the 2022 lease
amendment was not “properly executed” under Chapter 271, we need not address
the City’s arguments that the 2022 lease amendment was not “properly executed”
pursuant to the Texas constitution. 8 See TEX. CONST. art. III, § 52-a; see also
7F

TEX. R. APP. P. 47.1.
Accordingly, we sustain the City’s second issue.
C. UDJA and Ultra Vires Claims
Finally, the City argues that it is immune from suit under the UDJA because
the Foundation does not challenge the validity of an ordinance or statute.
Additionally, the City argues that it is immune from the ultra vires claims that the
Foundation has asserted against the Ranger city commissioners under the UDJA
because (1) these claims cannot be used to either enforce performance against the
City under a contract or impose contractual liabilities, and (2) the “Foundation’s
allegations do not implicate the ultra vires exception to immunity” with regard to
the city commissioners. In response, the Foundation argues that (1) the City’s
governmental immunity is waived for claims that seek to determine parties’ rights
to a contract under the UDJA, and (2) the ultra vires claims were not raised before
or ruled on by the trial court.
The UDJA waives governmental immunity for (1) claims that challenge the
validity of an ordinance or statute and (2) ultra vires claims against state officials

7
The City argues, for the first time in its reply brief, that the 2022 lease amendment was not
“properly executed” because municipal airport property is subject to the notice and bidding requirements
under Section 22.024 of the Transportation Code. See TRANSP. § 22.024. Because of our disposition of
this appeal, we do not address this “new” argument. See also TEX. R. APP. P. 47.1.
8
Because the City did not waive its immunity for the breach-of-contract claims asserted against it
by the Foundation under Chapter 271, the Foundation is not entitled to recover attorney’s fees from the
City either under the contract or the UDJA. See LOC. GOV’T § 271.153.

28
who allegedly act without legal or statutory authority or who fail to perform a purely
ministerial act. Mustang Special Util. Dist. v. Providence Vill., 392 S.W.3d 311,
316 (Tex. App.—Fort Worth 2012, no pet.) (citing City of El Paso v. Heinrich, 284
S.W.3d 366, 372–73 & n.6 (Tex. 2009)). With regard to the City’s first contention,
it is clear that the Foundation did not challenge the validity of an ordinance or a
statute under the UDJA; therefore, the first waiver exception under the UDJA is
inapplicable.
“Official immunity” is another form of immunity which “protects public
officials from suit[s]” that arise from the good faith performance of their
discretionary duties when such duties occur within the scope of their authority.
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422 (Tex. 2004); City of
Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). “[A] suit against a
government employee in his official capacity is a suit against his government
employer with one exception: an action alleging that the employee acted ultra vires.
With that exception, an employee sued in his official capacity has the same
governmental immunity, derivatively, as his government employer.” Franka v.
Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011) (footnotes omitted).
To fall within the ultra vires exception, “a suit must not complain of a
government officer’s exercise of discretion, but rather must allege, and ultimately
prove, that the officer acted without legal authority or failed to perform a purely
ministerial act.” Heinrich, 284 S.W.3d at 372; see also Chambers–Liberty Cntys.
Navigation Dist. v. State, 575 S.W.3d 339, 348 (Tex. 2019). An official with “some
discretion to interpret and apply a law may nonetheless act ‘without legal authority,’
and thus ultra vires, if he exceeds the bounds of his granted authority or if his acts
conflict with the law itself.” Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017)

29
(quoting Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158
(Tex. 2016)).
An official’s ministerial acts are those “where the law prescribes and defines
the duties to be performed with such precision and certainty as to leave nothing to
the exercise of discretion or judgment.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d
578, 587 (Tex. 2015) (quoting City of Lancaster, 883 S.W.2d at 654); see also Hall,
508 S.W.3d at 238. A discretionary act, on the other hand, requires the exercise of
judgment and personal deliberation. Emmett, 459 S.W.3d at 587. A government
official acts “beyond his granted discretion” if he “exercises judgment or limited
discretion ‘without reference to or in conflict with the constraints of the law
authorizing the official to act,’ because ‘a public officer has no discretion or
authority to misinterpret the law.’” Chambers–Liberty Cntys. Navigation Dist., 575
S.W.3d at 348 (quoting Houston Belt & Terminal Ry. Co., 487 S.W.3d at 163).
However, it is not an ultra vires act for a government official to make an erroneous
decision while acting within his authority. Hall, 508 S.W.3d at 242–43.
An ultra vires claim that seeks prospective relief against a governmental
official does not implicate governmental immunity because it is not a suit against a
governmental entity. Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex.
2011). Therefore, suits that complain of ultra vires actions or misconduct must be
brought against government officials in their official capacity and may only seek
prospective injunctive relief; in such circumstances, a governmental entity itself
retains its immunity from suit. Univ. of Tex. of Permian Basin v. Banzhoff, No. 11-
17-00325-CV, 2019 WL 2307732, at *4 (Tex. App.—Eastland May 31, 2019, no
pet.) (mem. op.). As such, the proper defendant to an ultra vires claim is the
governmental official “whose acts or omissions allegedly trampled on the plaintiff’s
rights, not the [governmental entity] itself.” Sefzik, 355 S.W.3d at 621 (citing

30
Heinrich, 284 S.W.3d at 372–73); see also Patel v. Tex. Dep’t of Licensing &
Regul., 469 S.W.3d 69, 76 (Tex. 2015) (“[S]uits complaining of ultra vires actions
may not be brought against a governmental unit, but must be brought against the
allegedly responsible government actor in his official capacity.” (citing Heinrich,
284 S.W.3d at 373)). Furthermore, suits under the UDJA can be barred by
governmental immunity. AIM Media Texas, LLC v. City of Odessa, 663 S.W.3d
324, 336 (Tex. App.—Eastland 2023, pet. denied).
Here, the City, as a governmental entity, is not the proper party to the
Foundation’s ultra vires suit against the Ranger city commissioners; thus, the City
retains its immunity from that suit. Id.; Sefzik, 355 S.W.3d at 621; Heinrich, 284
S.W.3d at 372–73; see Chambers-Liberty Cntys. Navigation Dist., 575 S.W.3d at
348; see also AIM Media, 663 S.W.3d at 336. Nevertheless, in this instance,
because the trial court did not expressly rule on the Foundation’s ultra vires claims
when it denied the City’s plea, and because the Ranger city commissioners are not
parties to this appeal, we need not address the merits of the City’s third issue.
IV. This Court’s Ruling
Generally, appellate courts must remand a case to the trial court to allow
parties the opportunity to amend their pleadings to cure any jurisdictional
deficiencies when the parties did not have the opportunity to do so in the first
instance. Clint Ind. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558–59 (Tex. 2016);
Miranda, 133 S.W.3d at 231. However, because the Foundation was aware of this
jurisdictional challenge and had the opportunity to address these deficiencies—in
fact, the Foundation amended their pleadings after the City filed its plea—the
Foundation is not entitled to again replead and have another “bite of the apple.”
Marquez, 487 S.W.3d at 558–59; Miranda, 133 S.W.3d at 231.

31
For the reasons stated, we conclude that the trial court erred when it denied
the City’s plea. Accordingly, we reverse the order of the trial court, and we render
judgment dismissing the Foundation’s suit against the City for lack of subject-
matter jurisdiction. With regard to the ultra vires claims that the Foundation has
asserted against the Ranger city commissioners, we remand those claims to the trial
court for further proceedings consistent with this opinion.

W. STACY TROTTER
JUSTICE

April 3, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

32