The 15th Court of Appeals has turned away an attempt by Texas A&M University to get out of paying the balance of a construction contract for a new building on its Tarleton State University campus.
The Board of Regents of the Texas A&M University System v. BE&K Building Group, LLC (No. 15-25-00058-CV; February 12, 2026) arose from a dispute between the university and a general contractor hired to build a building on the university’s Tarleton State University campus. The parties executed a construction manager-at-risk agreement setting the project’s maximum price at $41.5 million) and a substantial completion date of October 4, 2018. The contract contained provisions entitling the contractor to “an equitable adjustment of time” for certain delays, including the owner’s errors and omissions or changes to work critical to completion. It further allowed the contractor to recover additional costs and required the university to reduce or release portions of retainage once 65% of the agreement had been completed. The agreement included a dispute resolution procedure requiring the contractor to submit written notice of a claim for breach of contract before filing suit.
After commencement of the project, the contractor alleged that the university made several changes to the scope of the agreement, for which it denied the contractor’s time extension requests. The contractor alleged further that once it reached the 65% completion threshold (after the substantial completion date), the university refused to release the retainage or compensate the contractor for additional work. The contractor filed suit for breach of contact, claiming that more than $3.5 million was still owed for the project. The university filed a plea to the jurisdiction, asserting that the contractor’s suit did not trigger the limited waiver of immunity under Chapter 114, CPRC. After a hearing, the trial court denied the university’s plea. TAMU appealed.
In an opinion by Justice Farris, the court of appeals affirmed. First, the court ruled that Chapter 114 and SCOTX’s recent decision in Pepper Lawson Horizon International Group, LLC v. Texas Southern University, 669 S.W.3d 205 (Tex. 2023)(per curiam) controlled. Section 114.003, CPRC, waives sovereign immunity of a state agency against a suit “for the purpose of adjudicating a claim for breach of an express provision of a contract,” defined as “a written contract for engineering, architectural, or construction services … brought by a party to the written contract, in which the amount in controversy is not less than $250,000 ….” § 114.002. In Pepper Lawson SCOTX interpreted this section as a “clear and unambiguous waiver of immunity for construction-contract suits.” 669 S.W.3d at 209. In that case SCOTX ruled that a construction contractor didn’t have to prove its case (the breach) at the jurisdictional stage, which is what TSU and TAMU allege. Here the contractor identified the specific contract provisions the university allegedly breached. “These allegations,” the court stated, “are sufficient to invoke the immunity waiver of Section 114.003, which only requires TAMU to have entered into a construction services contract for the purposes ‘adjudicating a claim for breach of an express provision’ of the contract.’”
Second, the court rejected TAMU’s argument that “jurisdictional facts establishing waiver do not exist because [the contractor] did not satisfy the conditions precedent that would obligate TAMU to pay” (i.e., the submission of certain documentation under the contract). But, as the court pointed out, these “challenges go to the merits of [the contractor’s] cause of action rather than the jurisdictional inquiry.” In other words, SCOTX’s decision in Pepper Lawson “expressly rejected the court of appeals’ attempt to decide immunity based on the requirements of the contract rather than Section 114.003.” Don’t bring your contract defenses to a hearing on a plea to the jurisdiction. Finally, the court didn’t buy TAMU’s argument that the contractor’s failure to provide formal notice of its breach of contract claims deprived the court of jurisdiction. The court discussed the notice requirements of Chapter 2206, Government Code, as well as § 114.005, CPRC, but observed that it previously held that these requirements were not jurisdictional, although its ADR provisions are “enforceable.” Put another way, Chapter 114 addresses only contractual pre-suit procedures, not jurisdiction. Since the contractor demonstrated jurisdiction by alleging breaches of a construction contract, the trial court’s denial of TAMU’s plea was proper.
