The Board of Regents of the Texas A&M University System v. BE&K Building Group, LLC
15-25-00058-CV
| Tex. App. | Aug 11, 2025Background
- BE&K Building Group (BE&K) contracted with the Board of Regents of the Texas A&M University System (TAMU) to construct a university building on the Tarlton State campus.
- During the project, TAMU increased the scope of work but refused to compensate BE&K for the additional costs or to extend the completion deadline, contrary to contractual provisions.
- BE&K completed the work and filed suit for breach of express contract provisions, seeking over $3.5 million in damages.
- TAMU responded with a plea to the jurisdiction, arguing sovereign immunity barred BE&K’s suit because conditions precedent to payment were not satisfied.
- The trial court denied TAMU's plea, holding that Chapter 114 of the Texas Civil Practice & Remedies Code waives sovereign immunity for BE&K’s breach of contract claims against a state agency.
- TAMU appealed, claiming the court lacked jurisdiction due to unmet conditions precedent and inadequate notice by BE&K.
Issues
| Issue | Plaintiff's Argument (BE&K) | Defendant's Argument (TAMU) | Held |
|---|---|---|---|
| Does Chapter 114 waive TAMU’s sovereign immunity for this contract? | Yes; BE&K’s claim meets all statutory elements for waiver. | No; immunity not waived because conditions precedent failed. | Yes; waiver applies. |
| Are merits defenses (e.g., unmet conditions precedent) jurisdictional? | No; such defenses pertain to merits, not jurisdiction. | Yes; lack of conditions precedent is a jurisdictional defect. | No; merits are not jurisdictional. |
| Did TAMU waive a right to contest conditions precedent satisfaction? | Yes; TAMU failed to specifically deny them as required by Rule 54. | No; BE&K did not satisfy them, so no duty to pay. | Yes; TAMU’s denial insufficient. |
| Is alleged lack of pre-suit notice a jurisdictional bar? | No; notice is not jurisdictional under Chapter 114, only contractual. | Yes; failure to give notice bars jurisdiction. | No jurisdictional bar. |
Key Cases Cited
- Pepper Lawson Horizon Int'l Grp. LLC v. Tex. S. Univ., 669 S.W.3d 205 (Tex. 2023) (Sovereign immunity waiver under Ch. 114 is determined by pleadings, and merits defenses do not defeat jurisdiction)
- Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98 (Tex. 2014) (Waiver of immunity for contract claims is based on statutory text, not ultimate liability)
- Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (Distinguishes between merits and jurisdiction where statutory scheme intertwines them; here, they do not)
- Kirby Lake Dev., Ltd. v. Clear Lake City Water Authority, 320 S.W.3d 829 (Tex. 2010) (Immunity waiver statutes allow courts to adjudicate, not foreclose, contract liability)
- Gulf Constr. Co. v. Self, 676 S.W.2d 624 (Tex. App.—Corpus Christi 1984) (In construction contracts, timing/payment provisions are presumptively covenants, not conditions precedent)