West Texas Municipal Power Agency v. Republic Power Partners, L.P., 428 S.W.3d 299

West Texas Municipal Power Agency (WTMPA), a municipal power agency and political subdivision created under Tex. Util. Code ch. 163, entered a Development Agreement (2008) with Republic Power to develop, finance, and implement electric generation/transmission projects after WTMPA’s existing power contract ended.
Republic Power was to manage development, obtain feasibility studies, secure private financing, and assist in creating a local government corporation (High Plains) to issue revenue bonds to fund the project.
Dispute arose when a Lubbock county court invalidated the bond validation proceeding after the City of Lubbock contested High Plains’ creation; no revenue bonds were issued and the project stalled.
Republic Power sued WTMPA and the City of Lubbock for breach of the Development Agreement; both defendants filed pleas to the jurisdiction asserting governmental immunity. The trial court granted Lubbock’s plea but denied WTMPA’s plea.
WTMPA appealed, arguing (1) the proprietary/governmental function distinction should preclude waiver of immunity for utility-related contracts, and (2) chapter 271 of the Local Government Code does not waive its immunity for this agreement.

Issue	Republic Power's Argument	WTMPA's Argument	Held
Does the proprietary/governmental dichotomy bar waiver of immunity for this contract dispute?	Dichotomy in Tex. Tort Claims Act applies and utility construction/operation is proprietary, so no immunity.	The dichotomy is inapplicable to contract claims; immunity should remain.	The proprietary/governmental distinction does not apply to contract disputes; it does not defeat immunity analysis under chapter 271.
Did Tex. Local Gov't Code §271.152 waive WTMPA’s immunity from suit for Republic Power’s breach claim?	§271.152 waives immunity for contracts providing goods or services to a local governmental entity; the Development Agreement did so.	Agreement was an assignable “agreement to agree” or assigned to High Plains; no goods/services were provided to WTMPA, so no waiver.	§271.152 applies: the Development Agreement provided goods/services (development, studies, financing efforts) to WTMPA; assignment to High Plains and future performance do not defeat waiver.

Tex. Dept. of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (plaintiff bears burden to show jurisdiction over governmental entities)
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (plea to the jurisdiction as proper method to assert immunity)
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (jurisdictional questions are legal and statutes waiving immunity are strictly construed)
Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (court may consider evidence when ruling on jurisdictional facts)
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (distinguishing immunity from liability and immunity from suit)
General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) (§271.152 is the route to court for breach-of-contract claims against local governments)
City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011) (§271.152 provides clear waiver of immunity for certain contracts)
Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829 (Tex. 2010) (elements of a contract "subject to this subchapter" and liberal construction of "goods or services")
Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Sub-divs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320 (Tex. 2006) (legislature loosened immunity for local entities contracting; benefit test for services)

Outcome: The court affirmed denial of WTMPA’s plea to the jurisdiction, holding §271.152 waived immunity for the Development Agreement breach claim.