OPINION
Plаintiffs Waterblasting Technologies, Inc. and Thomas G. Wicker, Jr. sued the City of El Paso, the,Mayor,'.and the City Council (collectively, the “City”), seeking a declaration that a bid contract the City awarded was void,, as well as an injunction preventing performance of the contract. The City filed a plea to the jurisdiction requesting dismissal based in part on governmental immunity and lack of standing. The trial court denied the plea, and this interlocutory appeal followed. We conclude the trial court lacked subject-matter jurisdiction over Plaintiffs’ claims for a variety of reasons. Accordingly, we reverse the trial court’s order denying the plea to the jurisdiction and dismiss. Plaintiffs’ claims against the City, the Mayor, and City Council.
BACKGROUND
In December 2013, the City solicited bids to purchase a “water blasting unit” to remove paint and rubber deposits from the runways at the El Paso International Airport. The solicitation was for a contract requiring the expenditure of more than $50,000 from a municipal fund and was governed by the competitive sealed bidding requirements imposed by Chapter 252 of the Texas Local Government Code. Tex. Log Gov’t. Cоde Ann. § 252.021(a)(1) (West Supp.2015).
The solicitation was advertised in the El Paso Times and informed those wishing to participate to submit sealed bids by January 8, 2014. In response, bids were submitted by Waterblasting Technologies, Inc. (WTI) and also by' another company, Team Eagíe, Inc,, which proposed to sell the City a water blasting unit manufactured by Nil-fisk-Advance Technologies, Inc. The bids were opened on January 8, 2014, and on February 25, the City awarded the contract to Team Eagle.
Plaintiffs sued the City, Team Eagle, and Nilfisk on July 2, 2014, claiming the award violated Chapter 252 of the Texas Local Government Code. In addition to
Plaintiffs thereafter amended their petition twice. In their Second Amended Petition, Plaintiffs reiterated they were entitled to a declaratory judgment that the award to Team Eagle was void, 2 and more specifically alleged they were entitled either to an injunction under Section 252.61 of the Local Government Code preventing the City from paying any funds to Team Eagle, or if the funds had already been paid, to an order that Team Eagle refund all amounts paid to the City. Plaintiffs further asserted they had notified the City on May 8, 2014 (almost three months after the award was made) that the award to Team Eagle was void, but that the City had “refused to void the award.” Plaintiffs 'alleged the City was not entitled to governmental immunity because immunity had been waived by Section 252.061 of the Local Government Code and because the City had been involved in a procurement process, which they contended was a proprietary function. Plaintiffs alleged the City Council representatives were not entitled to immunity because they had committed an “ultra vires” act in voting to award the contract.
In response, the City included a plea to the jurisdiction in its answer and asserted among other things that Chapter 252 did not waive its governmental immunity, that it was entitled to governmental immunity because it had been performing a governmental function when it awarded the contract, and that, ■ even if immunity was waived, Plaintiffs lacked standing to bring a claim under that provision., The City also contended the Mayor and the City Council had not waived their immunity by committing an ultra vires act.
After hearing, the trial court deniеd the City’s plea to the jurisdiction, and this interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp.2015).
PLEA TO THE JURISDICTION AND STANDARD OF REVIEW
A plea to the jurisdiction based on governmental immunity challenges a trial court’s subject-matter jurisdiction.
County of El Paso v. Navar,
In a plea to the jurisdiction, a defendant may challenge the sufficiency of the plaintiffs pleadings to establish jurisdiction.
Miranda,
Whether the plaintiff has satisfied its burden to affirmatively demonstrate a trial court’s subject-matter jurisdiction is a question of law,. which an appellate court reviews
de novo. Miranda,
A defendant may also challenge the existence of jurisdictional facts in a plea to the jurisdiction, on the ground the facts do not support a finding of subject-matter jurisdiction.
Miranda,
DISCUSSION
Section 252.061 Waives the City’s Governmental Immunity
Plaintiffs specifically sued under Section 252.061 of. the Local Government
If the contract is made without compliance with this chapter, it is void and the performance of the contract, including the payment of any money under the contract, may be enjoined by: (1) any property tax paying resident of the municipality; or (2) a person who submitted a bid for a contract for which the competitive sealed bidding requirement applies, regardless of residency, if the contract is for the construction of public works.
Tex. Loc. Gov’t Code Ann. § 252.061 (West Supp.2015). Plaintiffs alleged that Section 252.61 waives the City’s governmental immunity. The City acknowledges that Section 252.061 creates a cause of action allowing certain parties to bring suit to enjoin the performance of a bid contract made in violation of Chapter 252, as well as to enjoin the payment of money under that contract. The City argues in •its Issue Four, however, that Section 252.061 does not contain any express statement that the City’s immunity is waived for such suits.
The City correctly points out that for a statute to effectuate a waiver of governmental immunity, the legislative intent to waive immunity must be expressed in clear and unambiguous language.
Harris County Hosp. Dist. v. Tomball Reg’l Hosp.,
When as here the Legislature has not used language in the statute expressly stating that “immunity is waived,” it can be difficult to determine the Legislature’s intent.
Tomball Reg’l Hosp.,
Relying on these four “aids,” we have no doubt that the Legislature intended to waive immunity for municipalities when it enacted Section 252.061 of the Local Government Code. First, the statute provides objective limitations on the municipality’s potential liability. Section 252.61 does not allow an award of monetary damages. Rather, the Legislature delineated only two specific remedies in Section 252.061,
ie.,
a party may to seek to enjoin performance of the contract or to enjoin the payment of any money due under the contract. More important, although the statute does not expressly require that a municipality be joined in the lawsuit, it is difficult to comprehend how a court would be able to enjoin performance of a municipal contract, and in particular, how a court would be able to enjoin a municipality from paying the winning bidder under the contract, if the plaintiff was not permitted to name the municipality as a defendant. To the contrary, if we were to accept the City’s argument that the Legislature did not intend a municipаlity to be námed as a defendant in a lawsuit under Section 252.061, this would leave a plaintiff unable to
Our conclusion is informed by prior decisions, including the Texas Supreme Court’s decision in
Kerrville State Hosp. v. Fernandez,
More recently, our sister court considered the exact issue posed in this case— whether the Legislature intended to waive a municipality’s immunity when it enacted Section 252.061 of the Local Government Code.
City of New Braunfels v. Carowest Land, Ltd.,
We reached a similar conclusion when interpreting an analogous statute waiving a county’s immunity for violating the bid requirements of Chapter 262 of the Local Government Code.
See Labrado v. County of El Paso,
Standing to Sue under Section 252.061
In its Issue One, the City contends that even if Section 252.061 waived its immunity, Plaintiffs have no standing to bring a suit under that provision. Section 252,061 gives standing to two classes of plaintiffs: “(1) any property tax paying resident of the municipality; or (2) a person who submitted a bid for a contract for which the competitive sealed bidding requirement applies, regardless of residency, if the contract ' is for the construction оf public works.” Tex. Loc. Gov’t Code Ann. § 252.061. We conclude that Wicker has standing to sue under Section 252.061, but that WTI does not.
Standard of Review
Standing is a question of law we review
de novo, Heckman v. Williamson Cnty.,
Wicker’s Standing as a Property Taxpaying Resident
Plaintiffs pleaded that Wicker had standing to sue as a property tax paying resident of the City of El Paso. The City argued that Wicker, regardless of whether he was a property tax -paying resident of El Paso, had no standing because the funds used to acquire the water blasting unit were not tax dollars but funds generated by the Airport Enterprise Fund. 6
There are two problems with this argument. First, the City provided no evidence to establish the source of the funds used to purchase the water blasting unit. Based on the state of the record, we are unable to determine whether the funds to be used to pay for the water blasting unit were to come from tax money or from funds generated by the Airport Enterprise Fund. Second, Wicker would have standing to' sue even if no tax money was used to purchase the water -blasting unit. Section 252.061. expressly provides that “any property tax paying resident” of a municipality may challenge a contract made.without compliance with Chapter 252, and imposes no requirement that the challenged contract be financed by or paid for with tax money. The City suggests that we should- imply such a restriction into the Code, arguing that the Legislature’s decision to. allow only “tax paying” residents to sue, rather than- all residents in general, was an indication that it intended to allow only suits in which tax money was involved. We disagree.
Much of the City’s argument - on this point is-based on how the courts have restricted standing in taxpayer lawsuits at common law, where taxpayer standing evolved as an exception to the general rule that a plaintiff must possess “an interest in a conflict-distinct from that of the general publicf.]”
Williams
v.
Lara,
In the present case, however, Wicker is not asserting standing under the judicially-created common law exception for taxpayer standing. Instead, he is asserting standing under the provisions of Section 252.061 itself. When standing is conferred by statute, we must analyze the statute itself to determine whether the Legislature intended to confer standing on a particular party.
See, e.g., Brown v. De La Cruz,
In conferring taxpayer standing by statute, the Legislature is not required to follow the common law rule restricting standing solely to suits involving the expenditure of tax revenues. Instead, it is generally recognized that the Legislature may “[w]ithin constitutional bounds ... grant a right to a citizen or to a taxpayer to bring an action against a public body ... without proof of particular or pecuniary damage peculiar to the person bringing the suit.”
Scott v. Bd. of Adjustment,
The only case that the City cites to the contrary is
Hazelwood v. City of Cooper,
If the Legislature wanted to restrict taxpayer standing to only lawsuits challenging a contract funded through tax revenues, it was capable of doing so. We interpret the Legislature’s silence on this poiiit to be an indication of its intent not to'impose any such restriction.
See, e.g., Mitchell v. State,
WTI’s Standing as a Bidder
Plaintiffs pleaded that WTI had standing to sue under Section 252.061 because WTI submitted a bid to be аwarded the contract, and that the contract was a “public works procurement” contract within the meaning of the statute. The City argued that WTI did not have standing because the contract was not for the “construction of public works,” as required by the statute. Plaintiffs counter that they adequately pleaded that the contract was for the “construction of public works” and that the City provided no evidence to the contrary. Plaintiffs contend that in the absence of any evidence to the contrary, we must accept as true their allegation
First, Plaintiffs never alleged in their pleadings that the contract was for the “construction” of a public work. Instead, Plaintiffs alleged that the contract “involves a public works procurement,” and made no allegation that the procurement was in any way related to any construction project to be undertaken by the City. Further, Plaintiffs expressly described the procurement was for a water blasting unit, to be manufacturеd to the specifications set forth in the solicitation for the purpose of removing paint and rubber from the City’s airport runways.
Our task in considering a plea to the jurisdiction is to review the pleadings to determine if the plaintiff has alleged a valid claim for which governmental immunity has been waived, While we generally accept the plaintiffs allegations as true, if those allegations affirmatively negate the existence of subject-matter . jurisdiction, the plea to the jurisdiction must be granted without allowing the opportunity to amend.
Miranda,
Although the Legislature did not define “construction of public works” in Section 252.061, the Code Construction Act allows us to construe statutes with undefined terms by looking to laws on the same or similar subjects.
Mitchell,
In any event, Section 252.061' does not limit standing merely to challenges to “public works” contracts, but instead contains an important qualifying term that a losing bidder may challenge only a contract for the
“construction
of public works.” Although the Legislature did not define the term “construction,” we give undefined words “their common, ordinary meaning unless the statute clearly indicates a different result.”
William Marsh Rice Univ. v. Refaey,
Accordingly, based on the factual allegations in Plaintiffs’ own pleadings, we conclude the contract WTI seeks to challenge in its lawsuit is for the procurement of equipment, and is not for the “construction of public works,” as that term is used in Section 252.061. As such, we conclude that WTI lacks standing to bring its lawsuit under Section 252.061.
Plaintiffs’ Claims are Moot
Although the parties did not address this issue in the trial court or on appeal, it appears that Plaintiffs’ claim for injunctive relief under Section 252.061, as well as their related claim for declaratory relief, have both been rendered moot by the performanсe of the contract.
The Moolness Doctrine
The mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events.
Matthews v. Kountze Indep. Sch. Dist.,
Like standing, mootness is a component of subject-matter jurisdiction.
Labrado,
Plaintiffs’ Claims against the City are Moot
Plaintiffs’ sole basis for an injunction against the City was Section 252.061. By its terms, the only relief available to Plaintiffs under Section 252.061 was that “the performance of the contract, including the payment of any money under the contract, may be enjoined[.]” Tex. Loo. Gov’t Code Ann. § 252.061. Plaintiffs’ pleadings and their acknowledgments at oral argument demonstrate that Plaintiffs’ claims against the City have become moot because the contract in question has been fully performed, and consequently any judgment from the trial court on the merits cannot affect the rights of Plaintiffs and the City.
We note that Plaintiffs, in both their Original Petition and their Second Amended Petition, did not seek to enjoin all performance of the contract, but sought to enjoin the City only from paying Team Eagle under the contract. This indicated that Team Eagle had already delivered the water blasting unit to the City even before Plaintiffs originally filed suit in July 2014, almost five months after the bid had been awarded to Team Eagle. Further, in their Second Amended Petition, Plaintiffs acknowledged that the City may have already paid Team Eagle under the terms of the contract, when it requested in the alternative that “if payment has been made,” the trial court order “Defendant Team Eagle to refund the payment to Defendant City.” Moreover, there is no indication in the record that Plaintiffs ever sought either a temporary restraining order or a temporary injunction, which if granted would have restrained the City from going forward with the performance of the contract by accepting the unit and paying Team Eagle during the pendency of the trial court proceedings.
Cf. Dallas County v. Cedar Springs Invs., L.L.C.,
But, most important to our analysis, both parties acknowledged at oral argument that Team Eagle had not only already delivered the water blasting unit to the City but also that the City has already paid Team Eagle for that equipment. Our analysis whether Plaintiffs’ claims against-the City have been rendered moot can extend to matters outside the record.
See Williams,
For example, in
Hulett v. West Lamar Rural High Sch. Dist.,
We do note that Plaintiffs pleaded in the alternative for an order requiring Team Eagle to refund payment to the City if the City had already paid Team Eagle. To the extent Plaintiffs intended that alternative relief to apply to the City, that relief was not available. Section 262.061 does not provide for such retroactive relief, and in any event, such retroactive relief was not allowed at common law.-
Various courts have discussed this ques- ’ tion in cases brought by taxpayers seeking injunctive relief against a governmental entity, drawing a distinction between suits to restrain the illegal expenditure of public funds in the future, which are permissible, and suits to recover publiс funds already illegally expended, which are not permissible.
See, e.g., Osborne v. Keith,
The Supreme Court reached a similar conclusion in
Bland Indep. Sch.
Dist.
v. Blue,
This Court has also recognized that lawsuits to enjoin the performance of a contract become moot after the contract has been fully performed, thereby depriving a plaintiff of standing, even when that standing is conferred by statute.
See Labrado,
We ultimately concluded in Labrado that the plaintiffs case survived under the “capable-of-repetition-yet-evading-review exception to the mootness doctrine.” Id. at 591, We noted , that because the contracts would have expired by their own terms before their lawsuit was resolved, even if the parties had' requested a temporary injunction, the contracts could and had evaded judicial review by a court. Id. at 601. We also held that the transit contracts were ‘‘capable of repetition,” as the county periodically solicited bids on the contracts, and the same bidders typically submitted bids in response to the county’s solicitations. Therefore, the plaintiffs might be subjected to the same violations in the future if the court did not rule on the validity of the county’s bid procedures in that case. Id. at 591-92.
At least two factors distinguish this case from Labrado. First; unlike the contracts in Labrado, which evaded review because they were time sensitive and would have expired on their own terms even if the parties had requested a temporary injunction, the performance of the contract in the present case could have been temporarily enjoined by the trial court and remained subject to review by the trial court, Thus unlike in Labrado, Plaintiffs could have ensured that their claims did not “evade” review by seeking a temporary injunction. However, Plaintiffs made no such request. Second, unlike the contracts in Labrado, which were ongoing and were awarded by the County on a periodic basis, the purchase in this case was a one-time event, and there is nothing to suggest that Plaintiffs would be subject to the same violations in the future. Therefore unlike La-brado, the contract in question was not “capable of repetition.”
We therefore conclude that because, the contract at issue has been fully performed, Plaintiffs’ claims against the City for declaratory relief and for an injunction under Section 252.061 are moot and must be dismissed. 11
Plaintiffs alleged that the Mayor and City Council (the “City Officials”) committed an “ultra vires act” when they voted to award the contract to Team Eagle because they had no authority to award the contract to a bidder who was not the lowest responsible bidder in violation of Chapter 252. In Issue Five, the City asserts that the “ultra vires acts” claim should be dismissed for lack of subjection-matter jurisdiction because the City Officials acted within their discretion and with full legal authority when they voted to award the contract award to Team Eagle. We conclude Plaintiffs’ ultra vires claims against the City Officials should be dismissed because the underlying contract has beеn fully performed and the ultra vires exception to the City Officials’ immunity allows for prospective relief only.
The Ultra Vires Exception to Immunity Allows only Prospective Relief
A lawsuit against a government actor in his official capacity is effectively a suit against the entity, and the actor therefore has the same .immunity enjoyed by the entity unless he has acted “ultra vires.”
Univ. of Texas Health Sci. Ctr. at San Antonio v. Bailey,
Although suits for contract damages against a governmental
entity
are generally barred by immunity, when a statute or the constitution “requires that government contracts be made or performed in a certain way, leaving no room for discretion, a suit alleging a government
official’s
violation ,of that law is not barred, even though it necessarily involves a contract.”
Heinrich,
For example, in
Heinrich,
the plaintiff sued the Board of Trustees of a city pension fund, claiming, among other things, that the Board had improperly reduced her monthly pension payments in violation of a state statute.
Id.
at 369. The Supreme Court concluded that the plaintiff was entitled to bring an ultra vires claim against the board members for their actions, which were allegedly made without legal or statutory authority. However, the Court held that the plaintiffs only remedy was a “prospective” one to prevent the board members from acting unlawfully in the future, and that she therefore could not seek retrospective' relief to recover funds that the board members had wrongfully withheld in the past.
Id.
at 380. The Court’s ruling amounted to a proclamation that in an ultra vires action a plaintiff is only “entitled to prospective injunctive relief, as measured from the date of injunction.”
Id.
at 376;
see City of Houston v. Williams,
Plaintiffs’ Claims Against the City Officials Seek Prospective Relief
In support of their argument that the ultra vires doctrine permits them to bring a claim for declaratory and injunc-tive relief against the City officials, Plaintiffs rely primarily on
Texas Highway Comm’n v. Texas Ass’n of Steel Importers, Inc.,
Plaintiffs assert that under
Steel Importers,
they too have a right to bring a lawsuit for declaratory and injunctive relief against the City Officials challenging their authority to award the contract awarded to Team Eagle. Various courts
The importance of this distinction was explained by our sister court in
Texas Logos, L.P. v. Texas Dept. of Transp.,
Similarly in the present case, the parties have acknowledged that the City’s contract with Team Eagle has already been fully performed and that full payment has been made by the City to Team Eagle under the terms of the contract. Given the performance of-the contract, the. City Officials are not committing any ongoing violations of competitive bidding requirements of Chapter 252 of the Local Government Code, and Plaintiffs are no longer in a position to seek prospective injunctive relief against the City Officials requesting that they be required to comply with the requirements of that Code in awarding the contract to Team Eagle. Instead, the only relief Plaintiffs could possibly ask for at this time is a declaration that an already-performed contract is void, a remedy that is not only moot, but is retrospective in nature and therefore not permitted in an ultra vires action. Accordingly, we conclude that the ultra vires exception to the doctrine of sovereign immunity does not apply to Plaintiffs’ claims against the City
CONCLUSION
We reverse the trial court’s order denying the City’s plea to the: jurisdiction and dismiss with prejudice all claims that Wat-erblasting Technologies, Inc. and Thomas G. Wicker, Jr. asserted against the City of El Paso, the Mayor, and the City Representatives. •
Notes
. Plaintiffs also claimed the contract was void because WTI holds a patent on the design of the water blasting unit, and that Team Eagle could not legally manufacture and sell the unit to the City without infringing on WTI’s patent, That claim was dropped in Plaintiffs’ subsequent amended petitions. ,
. Plaintiffs alleged the City had violated the requirements of Chapter 252 by failing to publish a notice stating the time and place where the bids would be opened, by failing to award the contract to the "lowest responsible bidder” because Team Eagle had failed to provide the necessary information for the City to determine that Team Eagle was a "responsible bidder,” and by failing to treat Team Eagle as a nonresponsive bidder even though the City knew Team Eagle was proposing to sell a unit that did . not comply with the bid specifications. Plaintiffs also alleged Team Eagle and Nilfisk had violated the bidding requirements in Chapter 252. Plaintiffs dropped their Chapter 252 claim against Team Eagle and Nilfisk in their Third Amended Petition, which was filed after the trial court denied the City’s plea to the jurisdiction, Instead, they made a claim for tortious interference with a prospective business relationship. That claim remains pending.
. In a plea to the jurisdiction, the governmental entity cannot simply deny the existence of jurisdictional facts and force the plaintiffs to raise a fact issue.
Tirado v. City of El Paso,
. We note that the legislative intent to allow a party to enjoin the performance of a void contract could arguably be accomplished by filing a suit against the winning bidder and seeking to enjoin it from performing under the contract, but that the City would necessarily be a party to an action seeking to enjoin payment of money under the contract,
. -Because we have concluded that Section 252.061 waives the City's governmental immunity, we need not address the alternative contention that the City was not entitled to governmental- immunity because the act of procuring the water blasting unit was a pro...prietary act. (City's Issue Three). We agree with the City, however, that its act of purchasing the water blasting unit for use at its international airport was a governmental function becausе it was made in the interest of the public at large, and not solely for the residents of the City of El Paso.
See Gates v. City of Dallas,
. The Texas Transportation Code authorizes an Airport’ Enterprise Fund. See Tex. Transp, Code Ann. § 22,054 (West 2011). The revenue . placed into such a fund may be used by the local government for a variety of purposes, including contracts for the purpose of equipping and maintaining an airport. Id. at §§ 22.019, .22.054 (West 2011).
.
See also Franks v. Welch,
.
See also McCoy v. Williams,
. We note that there are alternative definitions of the term, “construction” that relate to the "creation or formation of an abstract entity,” or the “arrangement of words according to- syntactical rules.”
See, e.g., Construction Definition,
OxfordDictionaries.com, http:// www.oxforddictionaries.com/us/definition/ american_english/construction (last visited April 13, 2016). However, this meaning was clearly not intended by the Legislature in context when, it referred, to contracts for the "construction of public works.” We therefоre decline to look to those alternative meanings in construing the statute.
See, e.g,, $1,760.00 in U.S. Currency,
. Although we found that the plaintiff’s claim for injunctive relief had been rendered moot by the performance of the contract, we nevertheless found that there was a "live claim for attorney’s fees” under the Declaratory Judgments Act that remained pending, because the DJA allows for an award of fees in the court’s discretion regardless of whether . a party prevailed.
Labrado,
. Having determined Plaintiffs’ claims against the City are moot, we decline to address the City’s argument that Plaintiffs failed to exhaust their, administrative remedies by allegedly failing to follow certain procedural steps to contest the contract award set forth in the bid solicitation (Issue Two). We do note, however, -that that the City did not prove up procedural steps contained in the solicitation, and we note our disagreement with the City’s argument that those procedural steps are the equivalent of legislatively-created “administrative remedies,” which must be exhausted. Further, we note that Chapter 252
.
See also City of Round Rock v. Whiteaker,