City of Dallas v. River Ranch Educational Charities and River Ranch Equestrian, LLC

Affirmed and Opinion Filed April 29, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00724-CV
CITY OF DALLAS, Appellant
V.
RIVER RANCH EDUCATIONAL CHARITIES, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-04828
MEMORANDUM OPINION
Before Justices Pedersen, III, Carlyle, and Garcia
Opinion by Justice Carlyle
The City of Dallas appeals the trial court’s denial of its plea to the jurisdiction
filed in response to counterclaims brought against it by River Ranch Educational
Charities (RREC or River Ranch), a Texas non-profit corporation. The City
generally contends the trial court erred by denying its plea because RREC’s
counterclaims are based on the City’s engagement in a governmental function and
do not fall within any waiver of governmental immunity from suit. We affirm the
trial court’s order in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background
The City filed this lawsuit against RREC in April 2019 seeking declaratory
and injunctive relief pertaining to the Texas Horse Park (THP). According to the
City’s petition, THP opened in 2014 and is “a component of the City’s Trinity River
Corridor Project, an urban renewal plan undertaken by the City to provide flood
control improvements, recreational amenities, environmental protection, and
economic development opportunities within the Trinity River Corridor.”
The City asserted that in 2012, it entered into a contract with RREC titled
“Development and Operations Agreement with River Ranch for the Texas Horse
Park” (the contract or the agreement), under which “RREC was authorized to
provide equine-related recreational activities at the horse park for Dallas residents
and others.” The City’s petition stated:
14. [THP] is owned by the City. In the Agreement, the City and
RREC agreed that RREC would operate and maintain the area
designated as Premises B at the Texas Horse Park and would provide
equine-related services to the public there. . . . RREC has allegedly
occupied Premises B since its operations began under the Agreement.
The City did not convey an interest in the real property to RREC in the
Agreement, and the Agreement did not provide for the payment of rent
by RREC. The initial term of the Agreement was 21 years, with two 5-
year renewal period options.
15. The Agreement obligated the City to design and construct the
Texas Horse Park. In order to meet this obligation, the City agreed to
“contribute no more than $12 million from the 2006 Bond Funds for
the development of the Texas Horse Park.”
Starting in 2014, the City sent RREC multiple notices of contract violations,
including unauthorized vegetation and tree removal, improper construction in
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floodplain areas, and failure to maintain required insurance coverage. In December
2018, the City notified RREC it was terminating the contract because RREC’s
violations constituted default. RREC refused to vacate THP and continued its
operations. The City’s petition sought to enjoin RREC from occupying Premises B
and requested a declaration regarding the contract’s termination.
RREC filed a general denial answer and asserted counterclaims for breach of
contract, breach of implied duty of cooperation and non-interference, fraud, and
declaratory judgment. RREC’s pleading contended the City “in its management of
the Texas Horse Park was and is performing a proprietary function” and “has no
governmental immunity or in the alternative has waived any such immunity” as to
RREC’s claims.
The City generally denied RREC’s counterclaims and filed a June 2021
verified plea to the jurisdiction asserting governmental immunity. The City
contended:
The Agreement contemplates that RREC will operate its program with
oversight from the City and will meet certain requirements for
participation. . . . The City entered into the Agreement to obtain a
partner to operate Premises B of the Texas Horse Park as a recreational
facility within the parameters set out by the City, not to simply lease the
land to a private party to carry out its own business in whatever manner
it chose. It was done as part of the City’s governmental functions related
to parks and zoos and recreational facilities, and therefore, the City is
entitled to governmental immunity as to RREC’s claims in this
litigation.
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The City argued that because it is entitled to governmental immunity and RREC did
not plead a valid waiver of that immunity, RREC’s claims should be dismissed with
prejudice for lack of jurisdiction. The exhibits attached to the plea to the jurisdiction
included the contract1 and a May 22, 2013 Dallas City Council resolution authorizing
THP’s construction.
1
The contract stated, among other things:
THIS AGREEMENT (“Agreement”) for the development, operation, and
maintenance of an equestrian center is entered into . . . between [the City] and [River
Ranch].
WHEREAS, City is presently undertaking the Trinity River Corridor Project that
will provide economic development opportunities along the Trinity River Corridor
and . . . a component of the Trinity River Corridor Project is the development of an
equestrian center, (the “Texas Horse Park”); and
WHEREAS, the Texas Horse Park will be located on the real property owned by
the City and described on Exhibit B . . . ; and
WHEREAS, River Ranch is a Texas non-profit corporation organized and existing
under Texas law for the purpose of empowering, enriching, and educating special needs
and underprivileged children and adults in the Dallas area through equine-related activities;
and
WHEREAS, City will be designing and constructing the Texas Horse Park and the
parties desire for River Ranch to provide equine-related recreational activities and services
for the citizens of Dallas; and
WHEREAS, River Ranch will operate its program at its own cost and maintain
and manage a portion of the Texas Horse Park as discussed in this Agreement;
NOW, THEREFORE, City and River Ranch . . . do hereby agree as follows:
....
Section 2.1. Purpose. The purpose of this Agreement is to set forth the terms and
conditions upon which City will design and construct the Texas Horse Park and City will
allow River Ranch to provide equine related services and operate and maintain Premises B
as discussed herein. For purposes of this Agreement, any reference to River Ranch’s
operations will include operations and management of not only Premises B but also other
locations at the Texas Horse Park where River Ranch will be operating and managing its
services (“River Ranch’s Operations”). River Ranch covenants to operate and maintain
Premises B as herein provided. City shall not be responsible for any of the costs of such
operation and maintenance during the Term of this Agreement.
....
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Section 6.2. Uses. River Ranch shall operate and maintain Premises B for the purposes
described in this Agreement to be used and enjoyed by the citizens of Dallas and its visitors,
including horse-back riding, community outreach programs, educational and enrichment
activities, and other related activities providing access to children with special needs.
....
Section 8.2. River Ranch’s Management and Operations at the Texas Horse Park.
River Ranch shall do all things and take all actions necessary and or appropriate for the
operation, maintenance, and management of Premises B and River Ranch’s operations at
the Texas Horse Park in accordance with this Agreement. Without limiting the generality
of the foregoing, River Ranch shall:
(a) pay all management, maintenance (including major maintenance), repair, and operating
expenses for Premises B, and all other costs of River Ranch’s operations;
....
(e) provide a manager to supervise and be responsible for overseeing River Ranch’s
operations;
....
(x) provide programs for Dallas citizens, particularly children with special needs and
underprivileged children and seniors;
....
Section 8.13. Contracts Related to Management and Operation: General Provisions.
(a) Subject to the terms of this Agreement, River Ranch, at no cost to the City, shall
be the exclusive manager and operator of Premises B after City’s receipt of certificate of
occupancy and River Ranch commencing its operations at the Texas Horse Park with sole
responsibility for, and full control and discretion in, the operation, direction, management,
and supervision of River Ranch’s operations. . . . .
....
Section 8.14. Contracting Operations - Marketing. River Ranch shall, at its cost and
expense, plan, prepare, implement, coordinate and supervise all advertising, marketing,
public relations and other promotional programs for River Ranch’s operations. River Ranch
shall also negotiate, execute (in its own name and not the name of City) and perform all
promotions and contracts concerning the sale, promotion, marketing and use of trademarks,
trade-names, logos and similar intellectual property rights relating to River Ranch’s
operations; (but in no event or circumstances shall include “Dallas”, “City of Dallas” or
other city egos without express written consent of the Director) . . . .
....
Section 10.17. Relationship of the Parties. River Ranch’s status shall be that of an
independent contractor and not an agent, servant, employee, or representative of City in
the performance of the Services. . . . No term or provision of this Agreement or act of River
Ranch in the performance of this Agreement shall be construed as making River Ranch the
agent, servant or employee of the City . . . .
The contract also required RREC to (1) maintain a specified minimum balance in its operating
accounts; (2) authorize the City to audit its accounts and financial records at any time; (3) submit annual
operating budgets and plans for approval by the “Director of the Trinity Watershed Management,” “which
approval shall not be unreasonably withheld”; (4) permit the City to use Premises B for up to six days per
year at no charge except reimbursement for RREC’s personnel and utility costs; and (5) provide a specified
percentage of its riding lessons, trail rides, and other programs to low income and underprivileged Dallas
residents. Following the contract’s initial execution, the parties amended it several times.
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RREC filed a response to the plea to the jurisdiction reasserting its contentions
that governmental immunity is inapplicable because the City is “engaged in a
proprietary function at the THP” or, alternatively, that any immunity has been
waived. RREC argued, among other things, (1) THP is not a park or recreational
facility as enumerated in the Texas Tort Claims Act, see TEX. CIV. PRAC. & REM.
CODE § 101.0215(a); and (2) under the analysis set out in Wasson Interests, Ltd. v.
City of Jacksonville (Wasson II), 559 S.W.3d 142, 149 (Tex. 2018), the City was
engaged in a proprietary function when it entered into the contract. RREC asserted
(1) though “horse park” is defined in the Dallas Development Code (DDC) as “an
equestrian facility that provides educational, recreational, and therapeutic
opportunities to the public,” DDC § 51A-5.104(4) “specifically designates RREC as
a private recreation club and area, not a public park”; (2) the City “has never
considered THP to be a park, zoo or recreation center, and this is reflected in the fact
that it is not listed on Dallas Parks Inventory Master Spreadsheet”; and (3) the
contract described RREC as the “operator” of the equestrian center and gave it “sole
responsibility” for numerous designated functions and “the right to develop, operate
and maintain the equestrian center subject to the Agreement.”
The exhibits attached to RREC’s response included the contract; the City’s
notices of default and termination; a declaration of RREC’s manager; RREC’s
certificate of occupancy; a “Dallas Parks Inventory Master Spreadsheet” from the
Dallas Park and Recreation Department’s website; portions of the DDC; and various
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Dallas City Council meeting documents, including briefing materials pertaining to a
2012 “Texas Horse Park Project Update.” The 2012 briefing materials stated (1) THP
“is an equestrian facility developed in partnership with the community for education,
recreation, competition, and conservation”; (2) THP will “benefit the City of Dallas
and its citizens economically, educationally, culturally, recreationally, and
ecologically”; (3) in 2012, the City issued a “Request for Proposal” for a private
operator; (4) the City subsequently received letters of interest from three non-profit
entities, including RREC; and (5) the non-profits “would provide community
services and maintenance as their rent.”
Following a hearing,2 the trial court signed an order denying the plea to the
jurisdiction without stating the basis for its ruling.
Standard of review and applicable law
We review a trial court’s order denying a jurisdictional plea based on
governmental immunity de novo. Tex. Nat. Res. Conservation Comm’n v. IT-Davy,
74 S.W.3d 849, 855 (Tex. 2002). In performing our de novo review, we consider
only the pleadings and evidence pertinent to the jurisdictional inquiry. Cty. of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We take as true all evidence
favorable to the nonmovant, indulging every reasonable inference and resolving any
2
The day before the hearing, the City filed a reply in support of its plea to the jurisdiction. On the date
of the hearing, RREC filed a response to the reply and the City filed a reply to that response. At the hearing,
the trial court stated it would not consider those documents because they were not timely filed.
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doubts in the nonmovant’s favor. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 228 (Tex. 2004).
To invoke the trial court’s subject-matter jurisdiction, the plaintiff must allege
facts that affirmatively demonstrate the court has jurisdiction to hear the case. Id. at
226. A plea to the jurisdiction that disputes the existence of jurisdictional facts asserts
in essence that the evidence conclusively negates the existence of the relevant
jurisdictional facts. Id. at 227–28. “If the evidence creates a fact question regarding
the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction,
and the fact issue will be resolved by the fact finder.” Id. However, if the evidence
related to the jurisdictional issue is undisputed or fails to raise a fact question as to
jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. Id.
at 228.
Municipal corporations such as the City exercise their broad powers through
two different roles: proprietary and governmental. Wasson II, 559 S.W.3d at 146.
Immunity protects municipalities from suit based on the performance of a
governmental function barring an express, statutory waiver of immunity. IT-Davy,
74 S.W.3d at 853. In contrast, when a municipality embarks on a proprietary
function, it is subject to the same duties and liabilities as those incurred by private
persons and corporations and is not immune from suit. Wasson II, 559 S.W.3d at 146.
The Texas Tort Claims Act (TTCA) defines and enumerates governmental and
proprietary functions for the purpose of determining whether immunity applies to
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tort claims against a municipality. See TEX. CIV. PRAC. & REM. CODE § 101.0215.
The TTCA defines governmental functions as those “that are enjoined on a
municipality by law and are given it by the state as part of the state’s sovereignty, to
be exercised by the municipality in the interest of the general public.” Id.
§ 101.0215(a). Section 101.0215(a) provides a non-exclusive list of thirty-six
governmental functions, including “parks and zoos” and “recreational facilities,
including but not limited to swimming pools, beaches, and marinas.” Id.
§ 101.0215(a)(13), (23). The TTCA defines proprietary functions as those “that a
municipality may, in its discretion, perform in the interest of the inhabitants of the
municipality.” Id. § 101.0215(b). Section 101.0215(b)’s non-exclusive list of
propriety functions includes, among other things, “amusements owned and operated
by the municipality” and “any activity that is abnormally dangerous or
ultrahazardous,” though proprietary functions do not include any of the TTCA’s
enumerated governmental functions. Id. § 101.0215(b)–(c).
To determine the boundaries of governmental immunity in a breach of
contract case, we must consider the relevant statutory provisions as well as the
common law. Wasson II, 559 S.W.3d at 147–48. We are to “aid our inquiry” by
looking to the TTCA’s definitions and designations for governmental and proprietary
functions. Id. at 148–49 (citing Wasson Interests, Ltd. v. City of Jacksonville (Wasson
I), 489 S.W.3d 427, 439 (Tex. 2016)). If a function is designated in § 101.0215 as
governmental, we have no discretion to determine it is proprietary. City of Carrollton
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v. Weir Bros. Contracting, LLC, No. 05-20-00714-CV, 2021 WL 1084554, at *3
(Tex. App.—Dallas Mar. 22, 2021, pet. denied) (mem. op.). If a function is not
designated in that section as either governmental or proprietary, we apply the
section’s general definitions and the considerations set out in Wasson II to determine
the nature of the activity. Id.; see Wasson II, 559 S.W.3d at 150. The Wasson II
considerations are (1) whether the City’s act was mandatory or discretionary,
(2) whether the act was intended to benefit the general public or the City’s residents,
(3) whether the City was acting on the State’s behalf or its own behalf, and
(4) whether the City’s act was sufficiently related to a governmental function to
render the act governmental even if it would otherwise have been proprietary.
Wasson II, 559 S.W.3d at 150. The focus “belongs on the nature of the contract” at
the time it was entered into. Id. at 149.
Analysis
We begin with the City’s second issue, in which it contends it has
governmental immunity from RREC’s counterclaims “because the Texas Horse Park
is part of the City’s governmental functions related to parks and recreational
facilities.” The City asserts (1) “undisputed facts establish that the City created,
designed, built, and controls the Texas Horse Park, which is defined by the Dallas
City Code as ‘an equestrian facility that provides educational, recreational, and
therapeutic opportunities to the public,’” and (2) the City “is entitled to
governmental immunity as to its activities related to the Texas Horse Park because
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its lease of a portion of the Texas Horse Park to River Ranch specifically so that
River Ranch may provide equestrian activities under the City’s oversight falls within
the City’s park and recreational activities government function.”
A municipal park has been defined as “a place where the public generally may
go for various kinds of recreation and amusement.” Lewis v. City of Fort Worth, 89
S.W.2d 975, 978 (Tex. 1936). The DDC states “HORSE PARK means an equestrian
facility that provides educational, recreational, and therapeutic opportunities to the
public.” DALLAS, TEX., CITY CODE § 51P-883.103(a)(4). But the DDC’s § 51P-
883.117(a) states a “horse park” is “considered a private recreation club or area for
the purposes of Section 51A-5.104,” which pertains to improvements permitted in
flood plains. Id. § 51P-883.117(a). RREC’s certificate of occupancy states “Land
Use Designation: PRIVATE RECREATION CENTER, CLUB, OR AREA.” Also,
the “Dallas Parks Inventory Master Spreadsheet” described above does not list THP
as a park. We agree with RREC that the evidence raises a genuine issue of material
fact as to whether THP falls under § 101.0215(a)’s “parks and zoos” function. See
TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(13).
Additionally, RREC argues:
To have immunity under the TTCA, . . . . it is not enough for the
property to be classified as a recreational facility. The City must also be
the operator of the facility. As this Court recently explained in City of
Carrollton v. Weir, the City cannot contract with a third party to run a
recreational facility, and then slip under that third party’s umbrella to
claim that the City itself is engaged in the governmental function of
operating a recreational activity.
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In Weir Brothers, the City of Carrollton published a “Request for Proposal”
for the lease or sale of a certain piece of real property and set forth items and criteria
it would consider when evaluating the bids. Weir Bros., 2021 WL 1084554, at *1.
The items and criteria included, among other things, the “extent to which the goods
or services meet the municipality’s needs” and the “degree to which the proposed
project would enhance or complement the McInnis Sports Complex.” Id.The City ultimately executed a lease agreement with Blue Sky Sports Center
of Carrollton under which Blue Sky agreed to lease approximately thirty acres of the
property to “operate a multi-use sports, recreational, entertainment, and related
service facility.” Id. The facility could include, among other things, indoor and
outdoor soccer fields, concession stands, volleyball facilities, a miniature golf and
entertainment center, batting cages, and “any and all reasonably related activities.”
Id. The lease required the facilities to be open to the public “during reasonable times
as is customary for [Blue Sky’s] type of business” and permitted Blue Sky to charge
fees for the facilities’ use. Id. The lease also allowed the City to “reasonably use and
occupy the Leased Premises up to two times per calendar year” and provided that
the City and Blue Sky would develop a cooperative schedule annually to allow for
the City’s use. Id.Subsequently, the City entered into a contract for grading of the property,
which it later terminated. Weir Brothers Contracting, which had performed some of
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the grading work as a subcontractor, acquired an assignment of the contractor’s
claims and sued the City for breach of contract, quantum meruit, promissory
estoppel, and tortious interference with contract. Id. at *2. The City filed a plea to
the jurisdiction based on governmental immunity, which the trial court denied. On
appeal, this Court affirmed the denial. This Court stated:
The City attempts to characterize its lease as an enumerated
governmental function based on Blue Sky’s use of the property to build
and operate a recreational facility. Recreational facilities are among the
governmental functions listed in section 101.0215. . . . The fundamental
flaw in the City’s argument is that Blue Sky’s construction and
operation of a recreational facility is not a function of the City. Nor is it
a function performed by Blue Sky on the City’s behalf. The right to
operate, manage, and control the sports complex belongs entirely to
Blue Sky.
Id. at *3. This Court held it would not attribute Blue Sky’s function of operating a
sports complex to the City for the purpose of determining whether the City’s actions
were governmental in nature. Id. at *4. This Court also stated, “Because neither
leasing nor grading property is listed as a governmental or proprietary function in
section 101.0215, the general definitions of those functions control our
determination of the capacity in which the City was acting when it engaged in the
conduct at issue.” Id. at *4. Then, this Court applied the Wasson II factors and
concluded the trial court did not err by denying the City’s plea to the jurisdiction. Id.
at *5.
Here, the City contends Weir Brothers is distinguishable because (1) “unlike
in Weir Brothers, the City did not put out a general request for proposals to lease
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land”; (2) THP “is not a business being operated by River Ranch under a lease with
the City”; and (3) “[r]ather River Ranch is providing its equestrian services on a
portion of the Texas Horse Park through its agreement with the City,” which
“provides for City oversight and control over River Ranch’s operations on Premises
B.”
We disagree with the City’s position that the reasoning of Weir Brothers is
inapplicable. In both cases, the cities expressed concepts for use of the respective
premises and issued requests for proposals consistent with those concepts. Though
the contract before us does not contain the term “lease,” the record shows the City
contemplated RREC would “provide community services and maintenance as their
rent.” Additionally, though the contract provides for certain auditing and approvals
by the City, it also states (1) River Ranch “will operate its program at its own cost
and maintain and manage a portion of the Texas Horse Park as discussed in this
Agreement”; (2) River Ranch “shall do all things and take all actions necessary and
or appropriate for the operation, maintenance, and management of Premises B and
River Ranch’s operations at the Texas Horse Park in accordance with this
Agreement,” including “provide a manager to supervise and be responsible for
overseeing River Ranch’s operations”; (3) subject to the contract’s terms, “River
Ranch, at no cost to the City, shall be the exclusive manager and operator of Premises
B . . . with sole responsibility for, and full control and discretion in, the operation,
direction, management, and supervision of River Ranch’s operations”; (4) River
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Ranch’s promotional materials “in no event or circumstances shall include ‘Dallas’,
‘City of Dallas’ or other city logos without express written consent of the Director”;
and (5) “River Ranch’s status shall be that of an independent contractor and not an
agent, servant, employee, or representative of City in the performance of the
Services.” These provisions raise a genuine issue of material fact as to operation,
management, and control. See Weir Bros., 2021 WL 1084554, at *3.
On this record, we conclude the trial court did not err by not attributing
RREC’s function of operating an equestrian facility to the City for the purpose of
determining whether the City’s actions were governmental in nature. See id.; see also
Miranda, 133 S.W.3d at 227–28. Because the record does not establish the City was
performing a § 101.0215(a) enumerated function, we next examine whether the
City’s act of contracting with RREC was a governmental function under the TTCA’s
general definitions and Wasson II. See Weir Bros., 2021 WL 1084554, at *4.
As in Weir Brothers, the City here “makes no argument in its brief on appeal
that its actions would fall under the general definition of a governmental function,”
nor does the City address application of the Wasson II factors. See id. at *5. The
record does not show the City’s decision to contract with RREC regarding Premises
B was a “mandatory” act or that the City was acting on the State’s behalf. See Wasson
II, 559 S.W.3d at 150. Additionally, the contract (1) stated the City “will be designing
and constructing the Texas Horse Park and the parties desire for River Ranch to
provide equine-related recreational activities and services for the citizens of Dallas,”
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(2) permitted the City to use Premises B for up to six days per year at no charge
except reimbursement for RREC’s personnel and utility costs, and (3) required
RREC to “provide a specified percentage of its riding lessons, trail rides, and other
programs to low income and underprivileged Dallas residents.” The 2012 Dallas
City Council briefing materials stated THP will “benefit the City of Dallas and its
citizens economically, educationally, culturally, recreationally, and ecologically.”
Thus, at the very least, the evidence raises a fact issue as to whether the City acted
“primarily for the benefit its residents.” See Weir Bros., 2021 WL 1084554, at *5.
As to the remaining Wasson II consideration, “[t]he fact that a city’s
proprietary action ‘touches upon’ a governmental function is insufficient to render
the proprietary action governmental.” Wasson II, 559 S.W.3d at 153. “Instead, a
city’s proprietary action may be treated as governmental only if it is essential to the
city’s governmental actions.” Id. The TTCA enumerates “parks and zoos” and
“recreational facilities” as governmental functions, but does not mention equine
activities. Also, the record shows RREC operated only a portion of THP. The City
does not address whether or how its act of contracting with RREC was “essential”
to a governmental action. On this record, we conclude the evidence did not establish
the City’s act of contracting with RREC was a governmental function. See id.; see
also City of League City v. Jimmy Changas Inc., 619 S.W.3d 819, 827 (Tex. App.—
Houston [14th Dist.] 2021, pet. filed) (concluding trial court did not err by
determining governmental immunity did not apply where city provided no argument
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on fourth Wasson II factor and there was some evidence under other three factors to
support proprietary nature of act); City of Helotes v. Page, No. 04-19-00437-CV,
2019 WL 6887719, at *4 (Tex. App.—San Antonio Dec. 18, 2019, pet. denied)
(mem. op.) (same). In light of our conclusions above, we need not address the City’s
remaining issues, which allege error regarding waiver of governmental immunity.3
* * *
The trial court did not err by denying the City’s plea to the jurisdiction. We
affirm the trial court’s order.
/Cory L. Carlyle/
210724f.p05 CORY L. CARLYLE
JUSTICE
3
During oral submission before this Court, the City argued for the first time that even if governmental
immunity is inapplicable here, the trial court lacked jurisdiction over RREC’s contract claims because
RREC did not give pre-suit notice as required under Dallas City Code § 2-86. See DALLAS, TEX., CITY
CODE § 2-86 (“Notice Required for Certain Breach of Contract Claims”). In a previous case involving § 2-
86, this Court held the city code section was not a jurisdictional prerequisite, stating, “Section 311.034
provides that ‘[s]tatutory prerequisites to suit, including the provision of notice, are jurisdictional in all suits
against a governmental entity.’ But the notice provision here is not a statutory requirement; rather, it is
contained in the city code.” Romulus Grp., Inc. v. City of Dallas, No. 05-16-00088-CV, 2017 WL 1684631,
at *6 (Tex. App.—Dallas May 2, 2017, pet. denied) (mem. op.).
The City asserts that a subsequent Texas Supreme Court opinion effected an “intervening change
in the law” regarding that conclusion, citing San Antonio River Authority v. Austin Bridge & Road, 601
S.W.3d 616 (Tex. 2020). In Austin Bridge, our supreme court concluded Texas Local Government Code
Chapter 271 authorized the River Authority to agree to arbitrate disputes arising from its construction
contract with Austin Bridge. Id. at 631. That case did not address or mention a city code notice provision
or Romulus. Assuming without deciding that the City’s newly asserted § 2-86 argument is properly before
us, we reject that argument. See Romulus, 2017 WL 1684631, at *6.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the 14th Judicial
District Court, Dallas County, Texas
No. 05-21-00724-CV V. Trial Court Cause No. DC-19-04828.
Opinion delivered by Justice Carlyle.
RIVER RANCH EDUCATIONAL Justices Pedersen, III and Garcia
CHARITIES, Appellee participating.
In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.
It is ORDERED that appellee RIVER RANCH EDUCATIONAL
CHARITIES recover its costs of this appeal from appellant CITY OF DALLAS.
Judgment entered this 29th day of April, 2022.
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