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ACCEPTED
15-25-00013-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
8/20/2025 10:18 AM
No. 15-25-00013 CHRISTOPHER A. PRINE
CLERK

In the Fifteenth Court of Appeals FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS

Austin, Texas 8/20/2025 10:18:09 AM
CHRISTOPHER A. PRINE
Clerk

State of Texas, et al.,
Appellants,
v.
Broadmoor Austin Associates, a Texas Joint Venture,
Appellee.

On Appeal from the 455th Judicial District of Travis County,
No. D-1-GN-23-007899

Response to Appellants’ Motion to
Strike, and Alternative Motion for Leave
to File Supplemental Brief

Scott Douglass &
McConnico LLP
Jason R. LaFond
State Bar No. 24103136
Casey Dobson
Sara Clark
303 Colorado Street, Suite 2400
Austin, TX 78701
(512) 495-6300
jlafond@scottdoug.com
Counsel for Appellee
Table of Contents

Page

Table of Authorities ................................................................................................. ii
Response to Motion to Strike ................................................................................... 1
Alternative Motion for Leave to File Brief ............................................................... 4
Conclusion and Prayer ............................................................................................. 5
Certiﬁcate of Compliance ........................................................................................ 6
Certiﬁcate of Conference ......................................................................................... 6

Appendix

Tab

1 Appellee’s Proposed Supplemental Brief

2 Broadmoor Letter to Christopher A. Prine, Clerk
Table of Authorities

Page(s)

Cases
Cinco W. Dev., LLC v. Highland Homes-Dall., Inc.,
2024 WL 5001840 (Tex. App.—Dallas 2024, pet. denied) .................................. 2
Ga. Fireﬁghters’ Pension Fund v. Anadarko Petroleum Corp.,
99 F.4th 770 (5th Cir. 2024) ................................................................................. 3
In re Commitment of Gipson,
580 S.W.3d 476 (Tex. App.—Austin 2019, no pet.) .............................................. 2
In re Est. of Washington,
289 S.W.3d 362 (Tex. App.—Texarkana 2009, pet. denied) ............................. 1, 4
In re Jordan Foster Constr., LLC,
2023 WL 2366610 (Tex. App.—El Paso, 2023, orig. proceeding) ........................ 4
In re KFC USA, Inc.,
1998 WL 427284 (Tex. App.—Dallas, 1998, orig. proceeding) (ndp)................... 4
In re Reiss,
2022 WL 500023 (Tex. App.—Dallas, 2022, orig. proceeding) ........................... 4
Jetall Companies, Inc. v. JPG Waco Heritage, LLC,
2020 WL 5036091 (Tex. App.—Amarillo 2020, pet. denied) .............................. 2
Lefebure v. D’Aquilla,
15 F.4th 670 (5th Cir. 2021) .............................................................................. 2, 4
Marshall v. MarOpCo, Inc.,
714 S.W.3d 724 (Tex. App.—Houston [1st Dist.] 2025, pet. ﬁled) ................... 1, 4
Penson v. Ohio,
488 U.S. 75 (1988) ................................................................................................ 2
Pepper Lawson Horizon Int’l Grp., LLC v. Tex. S. Univ.,
669 S.W.3d 205 (Tex. 2023).................................................................................. 2
Rules
Fifteenth Court Local Rules, Texas Courts, https://tinyurl.com/4mzyfer6 ................ 3
Tex. R. App. P.
9.6 ........................................................................................................................ 1

ii
38.7 ....................................................................................................................... 3
52.......................................................................................................................... 4
Other Authorities
6 McDonald & Carlson Texas Appellate Practice
§ 20:25 (2d ed.) .................................................................................................... 1
O’Connor’s Texas Civil Appeals App’x III (2025 ed.)
§ CA2 ................................................................................................................... 3
§ CA3 ................................................................................................................... 3
§ CA4 ................................................................................................................... 3
§ CA5 ................................................................................................................... 3
§ CA6 ................................................................................................................... 3
§ CA10 ................................................................................................................. 3
§ CA15 ................................................................................................................. 3

iii
To the Honorable Fifteenth Court of Appeals:

The Government’s motion to strike accomplishes exactly one thing: It high-

lights the fact that the Government needed to grasp for new, meritless arguments in

its reply brief. Beyond that, the motion is nothing but a burden on counsel’s and the

Court’s time.

The Government’s motion to strike is misguided because Broadmoor didn’t

ﬁle a surreply brief. Broadmoor submitted a letter, addressed to the clerk. See Tex. R.

App. P. 9.6 (“Parties and counsel may communicate with the appellate court about a

case only through the clerk.”); App’x Tab 2 (letter). If that ﬁling was inappropriate,

the clerk could have and likely would have rejected it. See In re Est. of Washington, 289

S.W.3d 362, 370–71 (Tex. App.—Texarkana 2009, pet. denied) (cited at Mot. 5). The

clerk doesn’t need the Government’s help. And the Government oﬀers no help in

any event because it doesn’t and can’t point to any rule the letter violated.

A surreply and motion for leave to ﬁle was unnecessary and would have been

inappropriate to address the Governments new points because “[i]ssues raised by

reply brief without permission of the court are not before the court of appeals.”

6 McDonald & Carlson Texas Appellate Practice § 20:25 (2d ed.);

accord Mot. 6; Marshall v. MarOpCo, Inc., 714 S.W.3d 724, 775 n.35 (Tex. App.—

Houston [1st Dist.] 2025, pet. ﬁled) (“To the extent that appellants raise arguments

in their reply brief, not previously contained in their opening brief, it is improper to

do so.”); Cinco W. Dev., LLC v. Highland Homes-Dall., Inc., 2024 WL 5001840, at *2
(Tex. App.—Dallas 2024, pet. denied) (“[W]e do not consider arguments raised for

the ﬁrst time in a reply brief.”); In re Commitment of Gipson, 580 S.W.3d 476, 488 n.6

(Tex. App.—Austin 2019, no pet.) (“To the extent this constitutes a new argument,

the State cannot raise it for the ﬁrst time in the reply brief.”).* So there’s nothing

relevant to surreply to.

Even so, Broadmoor recognized that the Court may wish to consider those

new arguments anyway because they go to sovereign immunity and thus jurisdiction.

But cf. Pepper Lawson Horizon Int’l Grp., LLC v. Tex. S. Univ., 669 S.W.3d 205, 213

(Tex. 2023) (declining to address jurisdictional issue raised for the ﬁrst time on ap-

peal that hadn’t been fully developed). Broadmoor also knows that “our adversarial

system of justice . . . is premised on the well-tested principle that truth—as well as

fairness—is best discovered by powerful statements on both sides of the question.”

Penson v. Ohio, 488 U.S. 75, 84 (1988) (quotation marks omitted); accord, e.g.,

Lefebure v. D’Aquilla, 15 F.4th 670, 674 (5th Cir. 2021) (“[O]ur adversarial legal sys-

tem . . . relies on the robust exchange of competing views to ensure the discovery of

truth and avoid error.”). So Broadmoor needed some way to provide its take on the

new arguments should the Court decide to consider them; hence, the letter.

*
The Government insists its new arguments were in response to Broadmoor’s arguments in its
appellee’s brief. Even if that were true, it wouldn’t matter. “An appellant may not raise additional
or new grounds attacking the order or judgment in question via a reply brief . . . even if they are in
response to argument within an appellee’s brief.” Jetall Companies, Inc. v. JPG Waco Heritage,
LLC, 2020 WL 5036091, at *2 (Tex. App.—Amarillo 2020, pet. denied) (citing authorities).

2
But even if Broadmoor’s letter were treated like a brief, it would still be per-

missible. Supplemental briefs are allowed “on whatever reasonable terms the court

may prescribe.” Tex. R. App. P. 38.7; contra Mot. 5. Some courts require “a motion

for leave to ﬁle” such a brief, “unless the brief is requested by the court.” O’Con-

nor’s Texas Civil Appeals App’x III, § CA2 at 1154 (2025 ed.) (providing

local rules); see also, e.g., id. § CA4 at 1167–68; id. § CA6 at 1172. Some require leave

only for post-submission briefs. See, e.g., id. § CA3 at 1163. Some don’t require leave

at all. See, e.g., id. § CA5 at 1169–70; id. § CA10 at 1179–80. This Court is in that last

camp. See id. § CA15 at 1188; Fifteenth Court Local Rules, Texas Courts, https://ti-

nyurl.com/4mzyfer6 (last visited Aug. 18, 2025). Leave was not necessary for Broad-

moor’s letter.

The Government cites a handful of decisions it says show Broadmoor’s let-

ter—if treated as a brief—was improper. None do. The Government’s reliance on

federal district court decisions is misplaced because the applicable rules are diﬀerent

and trial courts naturally have diﬀerent concerns than appellate courts. Still more,

when (like here), “a party raises new arguments or evidence for the ﬁrst time in a

reply, the district court must either give the other party an opportunity to respond or

decline to rely on the new arguments and evidence.” Ga. Fireﬁghters’ Pension Fund

v. Anadarko Petroleum Corp., 99 F.4th 770, 774 (5th Cir. 2024) (emphasis added).

The Government’s reliance on a few Texas courts of appeals’ decisions

doesn’t fare any better. The Texarkana Court’s decision supports Broadmoor: It

3
shows that Broadmoor’s letter—even if treated as a brief—doesn’t run afoul of any

rule, and that the Court’s acceptance of Broadmoor’s letter conﬁrms it’s not im-

proper. See In re Est. of Washington, 289 S.W.3d at 370–71 (“[S]uch ﬁlings are permit-

ted at this Court’s discretion. In this case, we did not accept Goolsby’s surreply brief

for ﬁling.” (citation omitted)). The other decisions are inapposite: Each resolves a

petition for mandamus, so Rule 38.7 (permitting supplemental briefs) doesn’t apply.

See Mot. 5–6 (citing In re Jordan Foster Constr., LLC, 2023 WL 2366610 (Tex. App.—

El Paso, 2023, orig. proceeding); In re Reiss, 2022 WL 500023 (Tex. App.—Dallas,

2022, orig. proceeding); In re KFC USA, Inc., 1998 WL 427284 (Tex. App.—Dallas,

1998, orig. proceeding) (ndp)); cf. Tex. R. App. P. 52 (original proceedings).

The Government’s motion is ill-founded and the Court should deny it.

Alternative Motion for Leave to File Brief

In case Broadmoor has misinterpreted the rules, it respectfully requests that

the Court grant leave to ﬁle the brief attached as Appendix Tab 1. The brief addresses

new arguments raised in the Government’s reply brief. The Government’s sandbag-

ging is improper. See, e.g., Marshall, 714 S.W.3d at 775 n.35. But, because the new

arguments go to the trial court’s jurisdiction, the Court may nonetheless wish to con-

sider them. If that’s the case, the Court should consider the points in the attached

brief, as “our adversarial legal system . . . relies on the robust exchange of competing

views to ensure the discovery of truth and avoid error.” Lefebure, 15 F.4th at 674.

4
Conclusion and Prayer

The Court should deny the Government’s motion to strike. In the alternative,

the Court should grant Broadmoor leave to ﬁle the brief attached as appendix Tab 1.

Respectfully submitted,

Scott Douglass &
McConnico LLP

Jason R. LaFond
State Bar No. 24103136
jlafond@scottdoug.com
Casey Dobson
State Bar No. 05927600
cdobson@scottdoug.com
Sara Clark
sclark@scottdoug.com
State Bar No. 00794847
303 Colorado Street, Suite 2400
Austin, Texas 78701
(512) 495-6300

Counsel for Appellee Broadmoor Austin Associates, a Texas Joint Venture

5
Certificate of Compliance

Microsoft Word 2019 reports that this brief contains 1,130 words, excluding

the portions of the brief exempt from the word count under Texas Rule of Appellate

Procedure 9.4(i)(1).

Jason R. LaFond

Certificate of Conference

On Thursday, August 14, 2025, appellants’ counsel informed me that appel-

lants oppose Broadmoor’s alternative motion for leave to ﬁle.

Jason R. LaFond

6
No. 15-25-00013

In the Fifteenth Court of Appeals
Austin, Texas
State of Texas, et al.,

Appellants,
v.
Broadmoor Austin Associates, a Texas Joint Venture,

Appellee.

On Appeal from the 455th Judicial District of Travis County,
No. D-1-GN-23-007899

Response Appendix

Tab

1 Appellee’s Proposed Supplemental Brief

2 Broadmoor Letter to Christopher A. Prine, Clerk
Tab 1
No. 15-25-00013

In the Fifteenth Court of Appeals
Austin, Texas
State of Texas, et al.,
Appellants,
v.
Broadmoor Austin Associates, a Texas Joint Venture,
Appellee.

On Appeal from the 455th Judicial District of Travis County,
No. D-1-GN-23-007899

[Proposed] Supplemental Brief
of Appellee

Page

Table of Authorities ................................................................................................. ii
Introduction ............................................................................................................. 1
Argument ................................................................................................................. 1
I. HHSC’s request for exceptional items doesn’t support the Government. ........ 1
II. Chapter 114 is not limited to contracts with one state agency. ........................... 3
III. The Texas Facilities Commission regulations applied to Novak’s
purported termination. ....................................................................................... 4
Conclusion and Prayer ............................................................................................. 6
Certiﬁcate of Compliance ........................................................................................ 8
Table of Authorities

Page(s)

Cases
Progressive Cnty. Mut. Ins. Co. v. Caltzonsing,
658 S.W.3d 384 (Tex. App.—Corpus Christi-Edinburg 2022, no pet.) .................. 5
Statutes
Tex. Civ. Prac. & Rem. Code
§§ 114.001(2), 114.003.......................................................................................... 3
§§ 114.002–.003 ................................................................................................... 4
§ 114.003 .............................................................................................................. 4
Tex. Gov’t Code § 311.012(b) ................................................................................... 3
Other Authorities
41 Tex. Reg. 7709 ................................................................................................. 5, 6
Antonin Scalia & Bryan A. Garner, Reading Law (2012) ................ 4
Regulations
1 Tex. Admin. Code §§ 115.20–22............................................................................ 6

ii
To the Honorable Fifteenth Court of Appeals:

Appellee Broadmoor Austin Associates respectfully submits this supple-

mental brief addressing an inaccuracy in the Government’s reply and addressing two

arguments from the Government’s reply that didn’t appear in its opening brief. None

of the Government’s new arguments undermines the district court’s order denying

the Government’s plea to the jurisdiction.

Argument

I. HHSC’s request for exceptional items doesn’t support the Government.

As Broadmoor recounted in the background section of its brief, HHSC’s judi-

cially noticeable FY2024–25 biennial baseline appropriations request asked for less

money under “Rent – Building” than HHSC projected it needed for the biennium.

Appellee Br. 11. HHSC included the remainder in an exceptional item request. Id.

11–12.

It’s the signiﬁcance of that exceptional item request that the Government’s

reply inaccurately describes. In the district court, the Government presented no evi-

dence showing that anyone at HHSC (or anywhere else) ever even considered

whether HHSC lacked funds to pay rent, let alone evidence that HHSC actually

lacked funds or believed it lacked funds. See Appellee Br. 53–55. In its reply, the Gov-

ernment grasps at HHSC’s early estimates in its exceptional item request as some

evidence that “there are multiple variables that impact the certiﬁcation for funding

and the analysis can be complex.” Reply Br. 7–8. The Government, however, still
can’t point to any evidence that HHSC lacked suﬃcient funds or ever considered

whether it had suﬃcient funds—multiple variables or not.

The Government relies on the exceptional item request to suggest HHSC re-

ceived less funding than it needed for rent. See Reply Br. 6–14, 24. But HHSC made

that request in early September 2022, nearly a year before Novak’s purported termi-

nation of the Broadmoor Lease and Niles’ incomplete certiﬁcation. See Appellee Br.

App’x Tab 6. Thus, HHSC advised in the request that, “[a]s additional information

becomes available, the agency will be able to more accurately assess its needs.” Id.

By mid-2023, it was clear that HHSC had enough money. For example,

HHSC’s exceptional item request “assumed [a] 9.9% year-over-year increase in the

Consumer Price Index for the 2024- 25 biennium.” Reply Br. 10. But by the time the

Legislature enacted the GAA, the CPI had fallen precipitously. See id. 11. Leaving no

doubt HHSC knew it had enough funds, Niles certiﬁed $93.7 million in annual lease

expenses for the upcoming biennium, tens of millions less than appropriated. See Re-

ply Br. 30; Appellee Br. 55. There’s no evidence that Niles’ certiﬁed amount didn’t

include inﬂation. Contra Reply Br. 30–31. But even if it didn’t, he’d still know there

was plenty of rent money. Even at a grossly exaggerated annual inﬂation rate of 10%,

$93.7 million would be $103 million in year one and $113 million in year two—totaling

more than $20 million less than was appropriated for rent across the biennium.

In the end, what matters is this: Arguments in briefs aren’t evidence. No one

has ever certiﬁed that funds were unavailable to pay rent due under the Broadmoor

2
Lease, there’s no evidence anyone thought funds were unavailable to pay rent due

under the Broadmoor Lease, and all evidence in the record suggests those funds were

available and that Niles and Novak knew they were available.

II. Chapter 114 is not limited to contracts with one state agency.

As Broadmoor showed, the Broadmoor Lease easily ﬁts within the plain text

and fair meaning of Texas Civil Practice & Remedies Code Chapter 114’s waiver of

sovereign immunity. Appellee Br. 19–46. The Government’s reply mostly rehashes

the unpersuasive arguments from its opening brief. But the reply also makes a new

argument, that Chapter 114 turns on the number of state entities that are contractual

counterparties. The Government argues that Chapter 114 doesn’t apply because

“[t]he contract at issue falls within Chapter 2167 of the Government Code, which

expressly involves two state agencies and the State of Texas as lessee; in contrast,

Chapter 114 requires a contract for a single state agency.” Reply Br. 16–18 (emphases

added).

The Government’s new argument is easily disposed of. To be sure, Chapter

114 speaks of “a state agency” and “the state agency.” E.g., Tex. Civ. Prac. & Rem.

Code §§ 114.001(2), 114.003. But in Texas statutes, “[t]he singular includes the plu-

ral.” Tex. Gov’t Code § 311.012(b). Indeed, that rule is a fundamental canon of inter-

pretation because it “is simply a matter of common sense and everyday linguistic

experience.” Antonin Scalia & Bryan A. Garner, Reading Law 130

3
(2012). So “state agency” includes “state agencies.” Chapter 114’s fair meaning

thus doesn’t limit its waiver to single-agency contracts.

Even putting common sense aside, the Government’s new argument falters

because Chapter 114’s plain text shows that the act of a single state agency triggers

Chapter 114’s waiver no matter how many other agencies also trigger the waiver. See

Appellee Br. 24–25. “A state agency . . . that enters a contract subject to this chapter

waives sovereign immunity to suit for the purpose of adjudicating a claim for breach

of an express provision of the contract.” Tex. Civ. Prac. & Rem. Code § 114.003 (em-

phasis added). Chapter 114’s trigger is an act—a state agency entering a speciﬁed con-

tract, not the contract itself. And that trigger is a ﬂoor, not a ceiling: So long as at least

one state agency performs that act, sovereign immunity is waived to adjudicate “a

claim for breach of a written con- tract for engineering, architectural, or construction

services . . . brought by a party to the written contract.” Id. §§ 114.002–.003. That

happened here. See Appellee Br. 25–35.

Nothing in Chapter 114 supports the Government’s proposed limit on the

waiver’s scope.

III. The Texas Facilities Commission regulations applied to Novak’s purported
termination.

Broadmoor demonstrated that Novak’s purported termination of the Broad-

moor Lease was outside his authority because, among other things, Novak’s actions

violated the Texas Facilities Commission’s regulations that bind him. See Appellee

Br. 56–58.

4
The Government doesn’t dispute that Novak’s purported termination con-

ﬂicted with those regulations. They argue only that those regulations “are irrelevant

because [they] were not in existence at the time the 2014 Lease was entered into so

these regulations do not apply to this Lease.” Reply Br. 31. The Government is mis-

taken.

The Government’s new argument is misguided because it applies a rule of con-

tract interpretation to an issue that doesn’t turn on interpreting a contract. The gov-

ernment relies on a decision that recites “[t]he general rule . . . that the laws which

are in existence at the time of the making of the contract are impliedly incorporated

into the contract.” Progressive Cnty. Mut. Ins. Co. v. Caltzonsing, 658 S.W.3d 384, 393

(Tex. App.—Corpus Christi-Edinburg 2022, no pet.) (citation omitted; emphases

added) (cited at Reply Br. 31). But Broadmoor doesn’t rely on the regulations to sup-

port its breach of contract claim or for any other contract issue. It relies on them to

support its ultra vires claim, which doesn’t depend on the lease’s terms and doesn’t

arise from any nonperformance under the lease. See Appellee Br. 56–58; contra Gov-

ernment’s Mot. Strike 10 (suggesting Broadmoor “argues that Appellants acted ultra

vires in relation to their performance under the Lease.”).

The regulations matter because they plainly govern Novak’s authority to termi-

nate the Broadmoor Lease: They “set[] out the procedure for the cancellation of a

lease due to a lack of funding”—an administrative function, not a contractual one. 41

Tex. Reg. 7709, 7709 (Sept. 16, 2016) (adopting regulations). Novak engaged in acts

5
those regulations govern—“process[ing] . . . any request to cancel a lease due to a lack

of funding.” See id. (emphasis added). And the date that controls is the date of the

request to cancel a lease based on lack of funding, see id. at 7710 (“Eﬀective date:

October 3, 2016”), not the date of the lease whose cancellation is requested, see 1

Tex. Admin. Code §§ 115.20–22 (no mention of lease execution date). Novak had no

authority to ignore the regulations. By ignoring them anyway, he acted ultra vires.

Conclusion and Prayer

The Court should aﬃrm the district court’s order denying the Government’s

plea to the jurisdiction. Alternatively, if the Court ﬁnds that Broadmoor’s allegations

are insuﬃcient, it should remand for repleading.

6
Respectfully submitted,

Scott Douglass &
McConnico LLP

Counsel for Appellee Broadmoor Austin Associates, a Texas Joint Venture

7
Certificate of Compliance

Microsoft Word 2019 reports that this brief contains 1,365 words, excluding

the portions of the brief exempt from the word count under Texas Rule of Appellate

Procedure 9.4(i)(1).

Jason R. LaFond

8
Tab 2
ACCEPTED
15-25-00013-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
7/28/2025 10:14 AM
CHRISTOPHER A. PRINE
CLERK
FILEDJason
IN LaFond
15thDirect
COURT Dial:OF
512.495.6338
APPEALS
AUSTIN, TEXAS
jlafond@scottdoug.com
7/28/2025 10:14:03 AM
July 28, 2025 CHRISTOPHER A. PRINE
Clerk
VIA E-FILING
Mr. Christopher A. Prine, Clerk
Fifteenth Court of Appeals
William P. Clements Building
300 W. 15th Street, Suite 607
Austin, Texas 78701

Re: State v. Broadmoor Austin Associates, No. 15-25-00013-CV

Dear Mr. Prine:

Appellee Broadmoor Austin Associates respectfully submits this letter to correct an inaccu-
racy in Appellants’ reply brief and to address two arguments from Appellants’ reply brief that
didn’t appear in Appellants’ opening brief. Please forward this letter to the panel’s attention at
your convenience.
HHSC’s exceptional item request doesn’t support Appellants’ arguments.
As Broadmoor recounted in the background section of its brief, HHSC’s judicially noticeable
FY2024–25 biennial baseline appropriations request asked for less money under “Rent – Building”
than HHSC projected it needed for the biennium. Broadmoor Br. 11. HHSC included the remain-
der in an exceptional item request. Id. 11–12.
It’s the significance of that exceptional item request that the Appellants’ reply inaccurately
describes. In the district court, Appellants presented no evidence showing that anyone at HHSC
(or anywhere else) ever even considered whether HHSC lacked funds to pay rent, let alone evi-
dence that HHSC actually lacked funds or believed it lacked funds. See Broadmoor Br. 53–55. In
their reply, Appellants grasp at HHSC’s early estimates in its exceptional item request as some
evidence that “there are multiple variables that impact the certification for funding and the analysis
can be complex.” Reply Br. 7–8. Appellants, however, still can’t point to any evidence that HHSC
lacked sufficient funds or ever considered whether it had sufficient funds—multiple variables or
not.
Appellants rely on the exceptional item request to suggest HHSC received less funding than
it needed for rent. See Reply Br. 6–14, 24. But HHSC made that request in early September 2022,
nearly a year before Novak’s purported termination of the Broadmoor Lease and Niles’ incomplete
certification. See Broadmoor Br. App’x Tab 6. Thus, HHSC advised in the request that, “[a]s ad-
ditional information becomes available, the agency will be able to more accurately assess its needs.”
Id.
By mid-2023, it was clear that HHSC had enough money. For example, HHSC’s exceptional
item request “assumed [a] 9.9% year-over-year increase in the Consumer Price Index for the 2024-
25 biennium,” Reply Br. 10, but by the time the Legislature enacted the GAA, the CPI had fallen
precipitously. See id. 11. Leaving no doubt HHSC knew it had enough funds, Niles certified $93.7
million in annual lease expenses for the upcoming biennium, tens of millions less than appropri-
ated. See Reply Br. 30; Broadmoor Br. 55. There’s no evidence that Niles’ certified amount didn’t
include inflation. Contra Reply Br. 30–31. But even if it didn’t, he’d still know there was plenty of
rent money. Even at a grossly exaggerated annual inflation rate of 10%, $93.7 million would be $103
million in year one and $113 million in year two—totaling more than $20 million less than was
appropriated for rent across the biennium.
In the end, what matters most is this: Arguments in briefs aren’t evidence. No one has ever
certified that funds were unavailable to pay rent due under the Broadmoor Lease, there’s no evi-
dence anyone thought funds were unavailable to pay rent due under the Broadmoor Lease, and all
evidence in the record suggests both that those funds were available and that Niles and Novak knew
they were available.
Chapter 114 is not limited to contracts with one state agency.
As Broadmoor showed, the Broadmoor Lease easily fits within the plain text and fair meaning
of Texas Civil Practice & Remedies Code Chapter 114’s waiver of sovereign immunity. Broadmoor
Br. 19–46. Appellants’ reply mostly rehashes their own unpersuasive arguments from their open-
ing brief without addressing Broadmoor’s. But their reply also makes a new argument, that Chapter
114 turns on the number of state entities that are contractual counterparties. Appellants argue that
Chapter 114 doesn’t apply because “[t]he contract at issue falls within Chapter 2167 of the Gov-
ernment Code, which expressly involves two state agencies and the State of Texas as lessee; in
contrast, Chapter 114 requires a contract for a single state agency.” Reply Br. 16-18 (emphases
added).
The Appellants’ new argument is easily disposed of. To be sure, Chapter 114 speaks of “a
state agency” and “the state agency.” E.g., Tex. Civ. Prac. & Rem. Code §§ 114.001(2), 114.003.
But in Texas statutes, “[t]he singular includes the plural.” Tex. Gov’t Code § 311.012(b). Indeed,
that rule is a fundamental canon of interpretation because it “is simply a matter of common sense
and everyday linguistic experience.” Antonin Scalia & Bryan A. Garner, Reading
Law 130 (2012). So “state agency” includes “state agencies.” Chapter 114’s fair meaning thus
doesn’t limit its waiver to single-agency contracts.
Even putting common sense aside, Appellants’ argument falters because Chapter 114’s plain
text shows that the act of a single state agency triggers Chapter 114’s waiver no matter how many
other agencies also trigger the waiver. See Broadmoor Br. 24–25. “A state agency . . . that enters a
contract subject to this chapter waives sovereign immunity to suit for the purpose of adjudicating
a claim for breach of an express provision of the contract.” Tex. Civ. Prac. & Rem. Code § 114.003
(emphasis added). Chapter 114’s trigger is an act—a state agency entering a specified contract, not
the contract itself. And that trigger is a floor, not a ceiling: So long as at least one state agency
performs that act, sovereign immunity is waived to adjudicate “a claim for breach of a written con-
tract for engineering, architectural, or construction services . . . brought by a party to the written
contract.” Id. §§ 114.002–.003. That happened here. See Broadmoor Br. 25–35.

2
Nothing in Chapter 114 supports Appellants’ proposed limit on the waiver’s scope.
The Texas Facilities Commission regulations applied to Novak’s purported termination.
Broadmoor demonstrated that Novak’s purported termination of the Broadmoor Lease was
outside his authority because, among other things, Novak’s actions violated the Texas Facilities
Commission’s regulations that bind him. See Broadmoor Br. 56–58.
The Appellants don’t dispute that Novak’s purported termination conflicted with those reg-
ulations. They argue only that those regulations “are irrelevant because [they] were not in exist-
ence at the time the 2014 Lease was entered into so these regulations do not apply to this Lease.”
Appellants Br. 31. Appellants are mistaken.
The Appellants’ new argument is misguided because it applies a rule of contract interpretation
to an issue that doesn’t turn on interpreting a contract. Appellants rely on a decision that recites
“[t]he general rule . . . that the laws which are in existence at the time of the making of the contract
are impliedly incorporated into the contract.” Progressive Cnty. Mut. Ins. Co. v. Caltzonsing, 658
S.W.3d 384, 393 (Tex. App.—Corpus Christi-Edinburg 2022, no pet.) (citation omitted; emphases
added) (cited at Appellants Br. 31). But Broadmoor doesn’t rely on the regulations to support its
breach of contract claim or for any other contract issue. It relies on them to support its ultra vires
claim, which doesn’t depend on the lease’s terms. See Broadmoor Br. 56–58.
The regulations matter because they plainly govern Novak’s authority to terminate the Broad-
moor Lease: They “set[] out the procedure for the cancellation of a lease due to a lack of fund-
ing”—an administrative function, not a contractual one. 41 Tex. Reg. 7709, 7709 (Sept. 16, 2016)
(adopting regulations). Novak engaged in acts those regulations govern—“process[ing] . . . any re-
quest to cancel a lease due to a lack of funding.” See id. (emphasis added). And the date that controls
is the date of the request to cancel a lease based on lack of funding, see id. at 7710 (“Effective date:
October 3, 2016”), not the date of the lease whose cancellation is requested, see 1 Tex. Admin.
Code §§ 115.20–22 (no mention of lease execution date). Novak had no authority to ignore the
regulations. By ignoring them anyway, he acted ultra vires.
* * *
The Court should affirm the district court’s order denying the Government’s plea to the ju-
risdiction. Alternatively, if the Court finds that Broadmoor’s allegations are insufficient, it should
remand for repleading.
Sincerely,

Jason R. LaFond
State Bar No. 24103136
jlafond@scottdoug.com
Counsel for Appellee Broadmoor Austin
Associates, a Texas Joint Venture
cc: Counsel of Record via efile

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Jason LaFond on behalf of Jason LaFond
Bar No. 24103136
jlafond@scottdoug.com
Envelope ID: 104603079
Filing Code Description: Motion
Filing Description: Response to Motion to Strike and Alternative Motion for
Leave to File
Status as of 8/20/2025 11:20 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 8/20/2025 10:18:09 AM SENT

Angela Goldberg agoldberg@scottdoug.com 8/20/2025 10:18:09 AM SENT

Susie Smith ssmith@scottdoug.com 8/20/2025 10:18:09 AM SENT

Jason R.LaFond jlafond@scottdoug.com 8/20/2025 10:18:09 AM SENT

Kemp Kasling kkasling@kaslinglaw.com 8/20/2025 10:18:09 AM SENT

Angie Espinoza aespinoza@scottdoug.com 8/20/2025 10:18:09 AM SENT

Carla Matheson cmatheson@scottdoug.com 8/20/2025 10:18:09 AM SENT

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

Victoria Gomez victoria.gomez@oag.texas.gov 8/20/2025 10:18:09 AM SENT

Jennifer Cook Jennifer.Cook@oag.texas.gov 8/20/2025 10:18:09 AM SENT

Associated Case Party: Broadmoor Austin Associates, a Texas Joint Venture

Name BarNumber Email TimestampSubmitted Status

Sara W.Clark sclark@scottdoug.com 8/20/2025 10:18:09 AM SENT

Casey Dobson cdobson@scottdoug.com 8/20/2025 10:18:09 AM SENT

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