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Click here for the full text of this decision FACTS:TPS is a local government entity comprised of various counties, municipalities, special districts, and other political subdivisions which performs certain governmental functions and services, one of which is the creation of a self-insurance pool. Ben Bolt, a small school district in Jim Wells County, is a member of TPS’s self-insurance pool. TPS provides property/casualty insurance to participants through an Interlocal Participation Agreement. In December 2002, Ben Bolt sustained a loss at one of its school facilities giving rise to a claim for mold and water damage. TPS denied Ben Bolt’s claim on the basis that the alleged loss was not covered under the parties’ insurance contract. Ben Bolt then filed a declaratory judgment action seeking a determination that the loss was covered by the agreement. TPS filed a plea to the jurisdiction and motion to dismiss claiming immunity from suit. The trial court denied TPS’s plea to the jurisdiction and TPS filed this interlocutory appeal. HOLDING:Reversed and rendered. The party bringing suit against a governmental entity has the burden of affirmatively showing that the trial court has jurisdiction to hear the case, which means that they must establish a clear and unambiguous waiver of immunity from suit by the legislature. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001). Ben Bolt contends that language in the Interlocal Cooperation Act “envisions suits” and, therefore, constitutes a clear and unambiguous waiver of immunity from suit. The court disagrees. Specifically, Ben Bolt contends that Texas Government Code 791.012 is indicative of the Legislature’s intent to allow suits against governmental units. The section provides: “Local governments that are parties to an interlocal contract for the performance of a service may, in performing the service, apply the law applicable to a party as agreed by the parties.” In construing a statute to discern a waiver of immunity, the court has employed the following guidelines: 1. The statute must waive immunity beyond doubt; 2. Ambiguities are resolved in favor of immunity; 3. A requirement that the state be joined in a lawsuit for which immunity would otherwise attach indicates an intentional waiver of immunity; and 4. A provision that sets an objective limitation or cap on the state’s potential liability also indicates an intent to waive immunity from suit. In reviewing the entirety of the Interlocal Cooperation Act, the court finds no clear indication of the Legislature’s intent to permit suit against the state. Not only does the Act contain no clear “sue and be sued” language, there is also no provision requiring that the State be joined in a lawsuit for which immunity would otherwise attach, nor is there any provision establishing a cap on the state’s liability under a contract. Because there is no language within the statute that waives immunity beyond a doubt, the court concludes that any ambiguity must be resolved in favor of TPS’s retention of immunity from suit. OPINION:Speedlin, J.; Duncan, Angelini and Speedlin, JJ.

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