Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00664-CV Brandon ROSS, in his Official Capacity as Special Projects Manager of the City of San Antonio, and the City of San Antonio, Appellants v. Jo Ann RIVERA, Victoria Rivera, and Philip M. Ross, Appellees From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-05053 Honorable Lisa Jarrett, Judge Presiding Opinion by: H. Todd McCray, Justice Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice H. Todd McCray, Justice Delivered and Filed: October 30, 2026 REVERSED AND RENDERED Appellants City of San Antonio (“COSA”) and Brandon Ross (“Ross”) appeal the trial court’s denial of their plea to the jurisdiction and motion for summary judgment, asserting governmental immunity against the claims brought by Jo Ann Rivera (“Jo Ann”), Victoria Rivera (“Victoria”), and Philip M. Ross (“Philip”) (collectively, “Appellees”). We reverse the trial court’s 04-25-00664-CV order and render judgment dismissing Appellees’ claims against COSA and Ross for lack of subject matter jurisdiction. BACKGROUND This appeal arises from a sewer and pipe replacement project along Holbrook Road in San Antonio (the “Project”). The San Antonio Water System (“SAWS”) undertook the Project to replace and upsize a wastewater main as part of its efforts to eliminate sanitary sewer overflows pursuant to a federal consent decree. Oscar Renda Contracting, Inc. (“ORC”), an independent contractor, performed the construction work. Jo Ann owns approximately thirty acres of land located at 1006 Holbrook Road (the “Rivera Property”). Victoria, who owns no interest in the property, resides at and operates a market on the Rivera Property. Philip also resides on the Rivera Property, where he formerly maintained a law office. In 2006, Jo Ann conveyed approximately 4.654 acres to COSA by warranty deed (the “Park Property”). The Park Property is located on the other side of Holbrook Road, across from the Rivera Property. The deed limits COSA’s and the public’s use of the Park Property to park and drainage purposes and requires COSA to preserve and maintain the property for those purposes, including mowing the property and removing rubbish (the “2006 Deed”). The 2006 Deed also reserves Jo Ann’s right, during her lifetime, to use the Park Property for any purpose that does not interfere with its use and maintenance as park and drainage property. To preserve her access, COSA must construct and maintain a twenty-four-foot driveway across the multi-use recreational path. The deed further prohibits COSA, during Jo Ann’s lifetime, from placing parking facilities, buildings, pavilions, or picnic facilities on the property. Thus, although COSA owns the Park Property, its ownership is subject to the 2006 Deed’s use restrictions, -2- 04-25-00664-CV maintenance and access obligations, and Jo Ann’s retained lifetime use rights. The deed does not, however, expressly provide that the property reverts to Jo Ann if COSA violates those provisions. Jo Ann, Victoria, and Phillip originally sued SAWS, COSA, and ORC in a single action. They alleged that construction activities associated with the Project caused recurring flooding, interfered with access to the Rivera Property, and affected Jo Ann’s reserved rights in the Park Property. Their original petition asserted claims under the Texas Tort Claims Act (the “TTCA”), for inverse condemnation, and sought declaratory relief under the Uniform Declaratory Judgments Act (“UDJA”). The trial court severed Appellees’ claims against SAWS from their claims against COSA and ORC and granted SAWS’s plea to the jurisdiction in the severed cause, which was then appealed. In that appeal, this Court affirmed the trial court’s order granting SAWS’s plea. See Rivera v. San Antonio Water System, No. 04-22-00309-CV, 2023 WL 3609233 (Tex. App.—San Antonio May 24, 2023, pet. denied). Specifically, we held that SAWS retained immunity because (1) Appellees failed to challenge the trial court’s lack of notice ruling under the TTCA, (2) their allegations showed negligent supervision of an independent contractor rather than intentional governmental conduct sufficient to plead a taking, and (3) the UDJA did not waive immunity for declarations concerning rights under a deed. Id. at *3-5. Following the severed SAWS appeal, Appellees’ claims against COSA and ORC proceeded in this case. In their fourth amended original petition, the live pleading at issue, (“Petition”), Appellees asserted waiver of immunity for their inverse condemnation claims, and their claims under the TTCA and the UDJA. Appellees also alleged that COSA breached the 2006 Deed by failing to 1) maintain the Park Property solely for park purposes and drainage, 2) provide the -3- 04-25-00664-CV required access, 3) accommodate Jo Ann’s reserved lifetime use rights, and 4) by allowing ORC to use the Park Property in ways not authorized under the 2006 Deed. The Petition also asserted, for the first time, claims against Ross, COSA’s Special Projects Manager. Appellees alleged that Ross acted ultra vires by authorizing the denial of access to, and diversion of traffic around, the Rivera Property and Park Property. COSA and Ross jointly filed a plea to the jurisdiction and motion for summary judgment asserting governmental immunity. The trial court denied the joint plea and motion. COSA and Ross now bring this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). 1 STANDARD OF REVIEW A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction, including whether governmental immunity has been waived. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a trial court’s ruling on a plea to the jurisdiction de novo. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016); County of Bexar v. Steward, 139 S.W.3d 354, 357 (Tex. App.—San Antonio 2004, no pet.). The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court’s jurisdiction, including a clear and unambiguous waiver of governmental immunity. Shady Shores, 590 S.W.3d at 550; Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). In determining whether that burden has been met, we construe the pleadings liberally in favor of jurisdiction and look to the pleader’s intent; but vague or conclusory allegations do not suffice. 1 While this case was pending, Jo Ann and Victoria executed instruments assigning their respective claims and causes of action to Philip. Philip thereafter sought to prosecute those claims, and his, while appearing pro se. Because we conclude that the trial court did not have jurisdiction to hear any of the claims against COSA or Ross, we do not reach Appellees’ alternative argument that Philip’s prosecution of the assigned claims constitutes the unauthorized practice of law. -4- 04-25-00664-CV Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022); Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007). When a plea challenges the existence of jurisdictional facts, the court may consider evidence submitted by the parties. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Shady Shores, 590 S.W.3d at 550. If the jurisdictional evidence creates a fact question on an issue intertwined with the merits, the trial court cannot grant the plea, and the fact question must be resolved by the factfinder. Miranda, 133 S.W.3d at 227–28. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact question, the court rules on the plea as a matter of law. Garcia, 372 S.W.3d at 635. Because COSA and Ross combined their plea with a motion for summary judgment supported by jurisdictional evidence, our review mirrors traditional summary-judgment review. We view the evidence in the light most favorable to Appellees and determine whether a genuine issue of material fact exists on the jurisdictional issues. See Rivera, 2023 WL 3609233, at *2 (citing Miranda, 133 S.W.3d at 227–28). ANALYSIS I. Governmental Immunity Applies COSA is a municipality and political subdivision of the State and therefore is generally immune from suit for claims arising from governmental functions unless that immunity has been clearly and unambiguously waived. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). 2 2 Sovereign immunity and governmental immunity are related doctrines that protect governmental entities from suit and liability. Although the terms are often used interchangeably, we use “governmental immunity” to refer to COSA’s immunity as a municipality. See Wichita Falls State Hosp., 106 S.W.3d at 694 n.3. -5- 04-25-00664-CV The functions at issue here are governmental. The TTCA expressly identifies sewage, water, drainage, street, and public-works functions as governmental functions. See TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(9), (11), (18), (32). Because this case arises from the repair and replacement of public sewer infrastructure and related traffic, access, and maintenance decisions, COSA is immune from suit unless Appellees affirmatively demonstrate a valid waiver of immunity. II. Waiver of Immunity Appellees assert several causes of action against COSA and Ross, but each requires an independent analysis as to whether the jurisdictional and factual allegations establish a valid waiver of immunity. Only “clear and unambiguous” language within a statute will be interpreted as waiving immunity, and it has long been recognized that the power to waive immunity from suit lies solely with the Legislature. TEX. GOV’T. CODE § 311.034; Tex. Nat. Res. Conservation Comm’n v. IT- Davy, 74 S.W.3d 849, 855 (Tex. 2002). “In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Whitley, 104 S.W.3d at 542. It is well established in Texas that bare allegations alone are not sufficient to invoke a waiver of sovereign or governmental immunity. State v. Lueck, 290 S.W.3d 876, 883–84 (Tex. 2009). Conclusory pleadings do not provide sufficient jurisdictional facts to determine if the trial court has jurisdiction. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010) (per curiam); see Garcia, 372 S.W.3d at 638 (“[S]ome inquiry is necessary because if . . . plaintiffs were allowed to stand on talismanic allegations alone, the constraining power of pleas to the jurisdiction would practically be eliminated.”); Lueck, 290 S.W.3d at 884 (“Allowing a plaintiff’s pleadings to stand -6- 04-25-00664-CV on bare allegations, alone, without allowing the State to challenge plaintiff’s compliance with the immunity statute, would practically eliminate the use of pleas to the jurisdiction[.]”). A. The Texas Tort Claims Act The TTCA creates a limited waiver of sovereign immunity. See TEX. CIV. PRAC. & REM. CODE § 101.021. For immunity to be waived under the TTCA, the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver. Tex. Dep’t of Transp. v. City of Floresville Elec. Power & Light Sys., 53 S.W.3d 447, 455 (Tex. App.—San Antonio 2001, no pet.). The three specific areas of liability for which immunity has been waived are: (1) injury or property damage caused by an employee’s use of a motor-driven vehicle or motor driven equipment; (2) injury caused by a condition or use of tangible personal or real property; and (3) claims arising from premises defects. Id. (citing TEX. CIV. PRAC. & REM. CODE § 101.021). Compliance with the TTCA’s notice requirement is a jurisdictional prerequisite to suit regardless of the specific area of liability for which the government unit has been sued. Worsdale v. City of Killeen, 578 S.W.3d 57, 62 (Tex. 2019). Notice Requirement COSA has challenged the trial court’s jurisdiction to hear Appellees’ TTCA clams, asserting that Appellees have not asserted jurisdictional facts or presented jurisdictional evidence to support that formal or actual notice of these claims was timely provided. We agree. Lack of Formal Notice Section 101.101 of the TTCA requires that the claimant provide the government with “notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred.” TEX. CIV. PRAC. & REM. CODE § 101.101(a). As -7- 04-25-00664-CV authorized by statute, COSA’s charter provides for a shorter notice period of ninety days. Id. § 101.101(b) (“A city’s charter . . . requiring notice within a charter period permitted by law are ratified and approved.”); San Antonio City Charter, art. 12 § 150. “This notice must reasonably describe (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident.” Id. This formal notice must be submitted in writing. Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.—San Antonio 2010, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995)). These formal notice requirements “do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.” Id. § 101.101(c). However, knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes. Cathey, 900 S.W.2d at 341. To have actual notice, a governmental unit must have the same knowledge it is entitled to receive under the written notice provisions of the TTCA. See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004). The “actual notice” provision requires that a governmental unit has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries. City of San Antonio v. Tenorio, 543 S.W.3d 772, 776 (Tex. 2018). Appellees allege that Jo Ann provided COSA with written and/or verbal notice contemporaneously with each alleged temporary nuisance. But, beyond claiming that COSA was notified that a nuisance had occurred, Appellees do not allege that these notifications informed COSA of the time, place, and nature of any alleged injury, or property damage, as required by section 101.101(a). Accordingly, Appellees have not alleged facts showing that their -8- 04-25-00664-CV communications provided COSA with actual, subjective awareness of its potential liability for any specific injury to person or property. Appellees’ supporting evidence fares no better. In her declaration, Jo Ann’s only testimony regarding communications with Ross, COSA, and ORC is limited to the topic of the purported breach of duty to maintain the Park Property and the related interference with her rights to use and enjoy that property. While she generally avers that the Park Property was being damaged, she makes no such claim about the Rivera Property. Further, Appellees’ declarations, filed in response to COSA’s plea to the jurisdiction, omit any reference to a personal injury. Finally, serving a lawsuit within the notice period may satisfy the TTCA’s requirements if it provides the information required by section 101.101. Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 543 (Tex. 2010). However, while in their live pleadings Appellees seek an award of damages for their “personal injury, substantial mental and emotional distress or anxiety, annoyance, physical discomfort, nausea, difficulty breathing, loss of sleep, anger, frustration, disgust, fear and/or apprehension,” these allegations were not in Appellees’ Original Petition. Rather, these damages were not sought until Appellees filed their Fourth Amended Petition on April 23, 2021, well beyond the notice requirements prescribed by section 101.101 of the TCCA. Accordingly, Appellees’ lawsuit did not provide COSA with timely notice of their TTCA claims. 3 Lack of Actual Notice Appellees also allege that COSA had actual knowledge of three alleged premises defects. First, they allege that COSA is aware that sections of Holbrook Road are below grade and therefore 3 With respect to the potential TTCA claims asserted in Appellees’ Original Petition filed March 10, 2020, Appellees only sought economic damages. Financial losses are not property damages or personal injury damages under the TCCA. Floresville Elec. Power & Light, 53 S.W.3d at 456; see also TEX. CIV. PRAC. & REM. C. 101.021(1) (providing recovery from “property damage, personal injury, and death”). Thus, Appellees’ Original Petition could not serve as timely written notice to COSA. -9- 04-25-00664-CV allow flooding which, at times, prevents “safe access” to the Rivera Property. Next, Appellees allege that COSA was aware of defects in the sewer system that, during flooding events, contaminated flood waters and stagnated in large pools adjacent to the Rivera Property and the Park Property. Finally, Appellees assert that a special defect existed from ORC’s purported failure to properly maintain the temporary water pipe during the Project. “[A]ctual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.” Simons, 140 S.W.3d at 348. “Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed.” Worsdale, 578 S.W.3d at 66. Accordingly, when determining whether COSA had actual notice under the TTCA, “[t]he critical inquiry is the governmental unit’s actual anticipation of an alleged claim[.]” Id. “A governmental unit has actual notice under the TTCA if it has subjective knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved.” Tenorio, 543 S.W.3d at 776. “When the facts do not even imply the governmental unit’s fault, they are legally insufficient to provide actual notice.” Worsdale, 578 S.W.3d at 64. Here, assuming COSA was aware of each of these three purported defects, there is no allegation or jurisdictional evidence showing that COSA was ever made aware that it was at fault for producing or contributing to any of these defects causing damage to Appellees’ property or personal injuries. COSA’s knowledge of these conditions alone does not enable it to anticipate that Appellees would assert TTCA claims for either property damage or personal injury resulting from these purported defects. See Tenorio, 543 S.W.3d at 776 (general awareness of an incident, - 10 - 04-25-00664-CV dangerous conditions, or a prior complaint is not enough); Worsdale, 578 S.W.3d at 65 (“[T]here must be subjective awareness connecting alleged governmental conduct to causation of an alleged injury to person or property in the manner ultimately asserted.”). Accordingly, we conclude COSA did not have actual notice. Injunctive Relief We also conclude that the injunctive relief sought by Appellees is not available under the TTCA. Appellees seek injunctive relief mandating that COSA fix one of the purported premises defects by repairing the improperly graded sections of Holbrook Road to mitigate flooding events and the retention of flood waters. However, Section 101.023 of the TTCA, provides limitations on the amount of liability and reads, in each subsection, that liability “is limited to money damages.” TEX. CIV. PRAC. & REM. CODE § 101.023. We have found no other section of the TTCA that addresses or permits injunctive relief and Appellees have not cited any authority to suggest the availability of this remedy under the TTCA. Since the only measure of liability provided by the TTCA is money damages, we conclude the TTCA does not waive sovereign immunity for injunctive relief. See Lewis v. Brown, No. 05-20-00855-CV, 2021 WL 1783106, at *6 (Tex. App.— Dallas May 5, 2021, no pet.). TTCA Conclusion Because COSA was not made aware that it might face liability for the claims Appellees are now asserting—through either timely formal written notice or actual notice—COSA’s immunity is not waived. See Colquitt, 324 S.W.3d at 543 (“[T]he notice requirement of the Tort Claims Act is a statutory prerequisite to the government’s immunity waiver and is, according to - 11 - 04-25-00664-CV the Code Construction Act, now jurisdictional.”). Accordingly, it was error to deny COSA’s plea to the jurisdiction with respect to Appellees’ TTCA claims. B. Inverse Condemnation COSA asserts Appellees failed to establish a waiver of its governmental immunity because they failed to plead a valid inverse condemnation claim. We agree. To establish a facially valid takings claim, a plaintiff must show that a governmental entity intentionally performed an act that resulted in the taking, damaging, or destruction of property for public use. City of Del Rio v. Felton, No. 04-06-00091-CV, 2007 WL 247655, at *19 (Tex. App.— San Antonio Jan. 31, 2007, no pet.) (citing Steele v. City of Houston, 603 S.W.2d 786, 788–92 (Tex. 1980)). A governmental entity may be liable when it knows that a specific act is causing identifiable harm or knows that specific property damage is substantially certain to result from authorized government action. City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). Negligence, failure to supervise, or failure to prevent damage caused by an independent contractor, however, does not constitute a taking. Id. at 313–14. Park Property Claims Jo Ann alleges that, during the Project, COSA and Ross intentionally interfered with her access to and enjoyment of the Park Property. Jo Ann asserts she has a vested property interest in the Park Property under the 2006 Warranty Deed. She claims that COSA and Ross intentionally closed Holbrook Road and diverted two-way traffic onto the park’s bike trial for a month, allowed construction materials and debris to accumulate and obstruct entrances or roadways, and allowed staging of construction equipment and parking of vehicles directly across from the Rivera Property. Jo Ann asserts that these intentional acts deprived her of her vested property rights including her access to and use and enjoyment of the Park Property. - 12 - 04-25-00664-CV However, “[t]o establish a takings claim, the Plaintiff must show that (1) the City intentionally performed certain acts in the exercise of its lawful authority; (2) the acts were the proximate cause of the taking, damaging, or destroying of property; (3) the plaintiff has an ownership interest in the property; and (4) the taking, damaging, or destroying of the property was for public use.” Rivera, 2023 WL 3609233, at *3 (citations omitted). A plaintiff must plead facts establishing a facially valid takings claims to invoke waiver of governmental immunity. Id. Whether particular facts are enough to constitute a taking is a question of law. Id. Jo Ann’s takings claim relating to the Park Property fails as a matter of law because she cannot demonstrate an ownership interest in the Park Property, having conveyed that interest to COSA in the 2006 Deed. Rivera Property Claims With respect to the Rivera Property, Jo Ann asserts that the same actions listed above limited access to the Rivera Property and amounted to a taking. To the extent her claims rest on allegations of accumulated debris, maintenance failures, and the alleged failure to prevent or remedy ORC’s interference with the properties, these allegations do not materially differ from the takings theory rejected in Rivera. There, we held that Appellees’ allegations concerning interference with the Park Property, restriction of access to the Rivera Property, and encroachment upon the Park Property showed, at most, “an accidental or negligent result of [SAWS’s] alleged failure to supervise, mitigate, and mediate the damage caused by the contractor.” Rivera, 2023 WL 3609233, at *4; see also Jennings, 142 S.W.3d at 313–14 (Tex. 2004) (“When damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be “taken or damaged for public use.”). The same is true here. - 13 - 04-25-00664-CV However, unlike Rivera, the allegations against COSA also include the assertion that, during the Project, COSA approved a temporary diversion of Holbrook Road onto the Park Property’s asphalt bike trial. Jo Ann asserts that her only access to the Rivera Property was by this “dangerous” temporary road. Accordingly, she asserts a taking claim based on the allegation that she was denied safe access to the Rivera Property. A landowner will be compensated for the denial of access if he proves that he suffered a substantial and material impairment of access to his land. State v. Heal, 917 S.W.2d 6, 10 (Tex.1996). To show material and substantial impairment, the property owner must establish (1) a total temporary restriction of access, (2) a partial permanent restriction of access, or (3) a partial temporary restriction of access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex.1993). “Closing an access point and merely causing diversion of traffic or circuity of travel does not result in a compensable taking.” City of San Antonio v. TPLP Office Park Properties, 218 S.W.3d 60, 66–67 (Tex. 2007). “Nothing in our previous cases suggests that circuity of travel within a particular property is any more compensable than circuity of travel around it.” Cnty. of Bexar v. Santikos, 144 S.W.3d 455, 460 (Tex. 2004). However, even viewing the allegations and jurisdictional evidence in the light most favorable to Jo Ann, we conclude she had not asserted an inverse condemnation claim. The Texas Supreme Court has distinguished between a “material and substantial impairment of access” and “unsafe access.” See Interstate Northborough P’ship v. State, 66 S.W.3d 213, 224-27 (Tex. 2001). These differing conditions give rise to different claims. Id; see also Santikos, 144 S.W.3d at 460 (noting the distinction between these claims). In Interstate Northborough the Supreme Court of Texas explained that while landowners may be entitled to recover damages to cure a loss of safe access resulting from the State’s action, - 14 - 04-25-00664-CV there is no right to damages if the landowner retains reasonable access to property after that action concludes. 66 S.W.3d at 225. We are not aware of any Texas cases, and Jo Ann has not identified any, where a claim for “unsafe access” based on a temporary condition was held to be a compensable taking. Accordingly, we conclude that Jo Ann has not alleged jurisdictional facts to support a claim for inverse condemnation relating to the Rivera Property. C. Uniform Declaratory Judgments Act We also conclude that a waiver of immunity is unavailable under the UDJA. The UDJA provides only a limited waiver of immunity. Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). That waiver applies to claims challenging the validity of an ordinance or statute; it does not extend to claims seeking declarations of the parties’ rights or obligations under a deed, contract, or other private instrument. Shady Shores, 590 S.W.3d at 552– 53; Sefzik, 355 S.W.3d at 621. Nor does the UDJA provide an independent basis for jurisdiction when the underlying claims otherwise fail. Sefzik, 355 S.W.3d at 621. Here, Jo Ann seeks declarations concerning Jo Ann’s rights and COSA’s obligations under the 2006 warranty deed conveying the Park Property. As we concluded in Rivera, those requested declarations concern deed-based rights and obligations—not the validity of an ordinance or statute. See Rivera, 2023 WL 3609233, at *5. Accordingly, Jo Ann’s request for declaratory relief does not fall within the scope of the UDJA’s express waivers. Id. D. Breach of Contract A waiver of immunity is not available for Jo Ann’s breach of contract claim. Jo Ann also asserts a breach of contract as a distinct cause of action against COSA based on the 2006 Deed. She alleges that COSA failed to comply with the deed by failing to maintain the Park Property solely for park and drainage purposes, failing to mow the property and remove - 15 - 04-25-00664-CV rubbish, failing to maintain a driveway and provide access, and interfering with her reserved lifetime right to use the property. She further alleges that COSA breached the deed by allowing ORC to possess or use the Park Property for purposes unrelated to park and drainage purposes and to the exclusion of Jo Ann and the public. Even assuming the 2006 Deed imposes each of the obligations Jo Ann identifies, her allegations of breach do not establish a waiver of COSA’s governmental immunity. Because she asserts a breach of contract claim against a local governmental entity, the only potentially applicable statutory waiver is found in Chapter 271 of the Local Government Code. See TEX. LOC. GOV’T CODE §§ 271.151–.152. Section 271.152 waives immunity only for certain breach of contract claims arising from a “contract subject to this subchapter.” Id. § 271.152. The statute defines such a contract as a written contract, properly executed on behalf of the local governmental entity, that states the essential terms of an agreement to provide goods or services to that entity. Id. § 271.151(2)(A). The 2006 Deed does not satisfy that definition as it is a conveyance of real property with reserved use rights—with no requirements that Jo Ann provide goods or services to COSA. Accordingly, section 271.152 does not waive COSA’s immunity from Jo Ann’s breach of contract claim. Because Jo Ann has not identified a statutory waiver applicable to her deed-based, breach of contract claim, that claim does not provide an independent basis for jurisdiction over COSA. III. Ultra Vires Claims Against Ross Finally, we conclude that the trial court does not have jurisdiction to hear any claims asserted against Ross. Appellees have asserted ultra vires claims against Ross, claiming he acted beyond his official authority as COSA’s Special Projects Manager. Appellees assert he improperly authorized - 16 - 04-25-00664-CV road closures, traffic diversions, access restrictions, and other construction-related conditions affecting both the Rivera Property and Park Property. They also assert that Ross failed to perform ministerial or nondiscretionary duties that relate to the 2006 Deed’s use restrictions, maintenance and access obligations, and Jo Ann’s retained lifetime use rights to the Park Property—claiming he was not authorized to breach COSA’s obligations and duties under the deed. However, under the TTCA’s election of remedies provisions, the trial court does not have jurisdiction over the claims asserted against Ross. After the Texas Legislature enacted the TTCA plaintiffs often sought to avoid its damages cap or other strictures by suing governmental employees, since claims against them were not always subject to the TTCA. See Garcia, 253 S.W.3d at 656. To prevent such circumvention, and to protect governmental employees, the Legislature created an election-of-remedies provision. Id.; TEX. CIV. PRAC. & REM. CODE. § 101.106. Section 101.106 requires a plaintiff to decide on a theory of tort liability before suit is even filed. Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530, 536 (Tex. 2017). The provision forces a plaintiff to “decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Garcia, 253 S.W.3d at 657. “The Supreme Court of Texas has warned that a plaintiff’s decision as to whom to sue has irrevocable consequences, and therefore a plaintiff should proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.” Krause v. Mayes, 652 S.W.3d 880, 886–87 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (citing Rios, 542 S.W.3d at 537). “Once the plaintiff elects his defendant, the election-of- remedies provision expressly confers immunity on the un-elected defendant for all claims brought under the TTCA.” Barron v. Thomason, No. 02-25-00059-CV, 2025 WL 2005516, at *3 (Tex. - 17 - 04-25-00664-CV App.—Fort Worth July 17, 2025, no pet.) (cleaned up). Accordingly, once the plaintiff makes an “irrevocable election” by suing only the employer, he may not change targets and sue the employee instead. Hintz v. Lally, 305 S.W.3d 761, 769 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Appellees’ original petition, filed in 2020, only asserted claims against COSA, SAWS, and ORC. In their plea to the jurisdiction, COSA and Ross asserted that the newly brought claims against Ross are barred under section 101.106. Given that the claims against Ross arise from the same subject matter as those asserted against COSA, we agree. Accordingly, we conclude the trial court erred in not granting the plea to the jurisdiction and dismissing Ross from this lawsuit. CONCLUSION Appellees have not affirmatively demonstrated a clear and unambiguous waiver of COSA’s immunity under the TTCA, the Takings Clause, the UDJA, or Chapter 271 of the Local Government Code. Additionally, the claims against Ross are barred under section 101.106 of the Texas Civil Practices and Remedies Code. We therefore reverse the trial court’s order denying COSA’s and Ross’s plea to the jurisdiction and motion for summary judgment and render judgment dismissing Appellees’ claims against COSA and Ross for want of jurisdiction. H. Todd McCray, Justice - 18 -