IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0427

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Fort=20 Worth Independent School=20 District, = Petitioner,

Service Employment = Redevelopment, Respondent

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On Petition for Review from = the

Court of Appeals for the Second = District of=20 Texas

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PER = CURIAM

&nbs= p;=20 Justice Willett did not=20 participate in this decision.

&nbs= p;=20 Service Employment Redevelopment (=93SER=94) sued Fort Worth = Independent School=20 District for breach of a contract to provide = alternative education program services. The trial court dismissed = the case=20 for want of jurisdiction, but a divided court of appeals reversed. = 163=20 S.W.3d 142 (Tex. App.=97Fort Worth 2005). = The court of=20 appeals held that the District=92s immunity from suit was =20 waived by section 11.151(a) of the Texas Education Code, which=20 states:

= ; =20 The trustees of an independent school district constitute a body = corporate and=20 in the name of the district may acquire and hold real and personal = property, sue=20 and be sued, and receive bequests and donations or other moneys or funds = coming=20 legally into their hands.

For the=20 reasons explained in Tooke v. City = of Mexia, 197 S.W.3d 325, 342 (Tex. 2006), = we have held=20 that section 11.151(a) is not a clear and unambiguous waiver of = immunity. =20 Satterfield & Pontikes Constr., Inc. v. Irving Indep.=20 Sch.=20 Dist., 197 S.W.3d 390, 391 = (Tex. 2006) (per curiam);=20 Columbus=20 Indep. Sch. Dist. v. Five Oaks = Achievement=20 Ctr., 197 S.W.3d 384, 385 (Tex. 2006) = (per curiam).

&nbs= p;=20 The District contends that before filing suit, SER was required to seek = relief=20 from the Commissioner of Education under former section 11.13(a) of the = Texas=20 Education Code, which provided for an appeal to the Commissioner of = disputes=20 over school district actions =93arising under the school laws of = Texas=94.[1] We think the current = provision, section 7.057(a) applies instead.[2] Though different in some = respects,=20 it contains the same provision.[3] We agree with the court = of appeals,=20 163 S.W.3d at 160-61, that a vendor=92s claim for breach of a contract = to provide=20 a school district services like those involved here does not complain of = a=20 violation of Texas school laws. Columbus Indep. Sch. Dist., 197 S.W.3d at 385;=20 Spring Branch Indep. = Sch. Dist. v.=20 Metalab Equip. Co.,=20 381 S.W.2d 48, 48 (Tex. 1964) (per curiam).

&nbs= p;=20 The District also contends that SER=92s = claim is really=20 for a violation of section 37.008(g) of the Texas Education Code, which = SER has=20 no standing to assert, rather than for breach of contract. But we = agree=20 with the court of appeals that SER is entitled to assert a claim for = breach of a=20 contract to which it was a party.

&nbs= p;=20 While this case has been pending on appeal, the Legislature enacted = sections=20 271.151-.160 of the Texas Local Government Code, which waive immunity = from suit=20 for certain claims against local governmental entities, including public = school=20 districts. Sections 271.152-.154 =93apply to a claim that arises = under a=20 contract executed before [September 1, 2005] . . . if sovereign immunity = has not=20 been waived with respect to the claim=94 before that date. Act of = May 23,=20 2005, 79th Leg., R.S., ch. 604, =A7 2, 2005 = Tex. Gen. = Laws 1548,=20 1549. SER should have the opportunity to argue in the trial court = that the=20 District=92s immunity is waived by these provisions.

&nbs= p;=20 Accordingly, we grant the District=92s petition for review, and without = hearing=20 oral argument, Tex. R. App. = P.=20 59.1, we reverse the judgment of the court of appeals and remand the = case to the=20 trial court for further proceedings.

Opinion=20 delivered: August 24, 2007

^[1] Act of June 2, = 1969, 61st=20 Leg., R.S., ch. 889, =A7 1, 1969 Tex. Gen. = Laws 2735,=20 2757, formerly Tex. Educ. Code =A7 11.13(a) = (=93Persons having=20 any matter of dispute among them arising under the school laws of Texas = or any=20 person aggrieved by the school laws of Texas or by actions or decisions = of any=20 board of trustees or board of education may appeal in writing to the=20 commissioner of education, who, after due notice to the parties = interested,=20 shall hold a hearing and render a decision without cost to the parties = involved,=20 but nothing contained in this section shall deprive any party of any = legal=20 remedy.=94), repealed by Act of May 27, 1995, 74th Leg., R.S., = ch. 260, =A7 58, 1995 Tex. Gen. Laws 2207, = 2498.

^[2]=20 Act of May 27, 1995, 74th Leg., R.S., ch. = 260, =A7 60,=20 1995 Tex. Gen. Laws 2207, 2499 (=93Section 7.057, Education Code, as = added by this=20 Act, applies to an action taken or decision made by the board of = trustees of a=20 school district on or after January 1, 1996. The appeal of an = action taken=20 or decision made by a board of trustees before January 1, 1996, is = governed by=20 Section 11.13, Education Code, as that section existed before repeal by = this=20 Act, and that section is continued in effect for that = purpose.=94). The=20 contract in this case was executed December 12, 1995, but the actions = SER=20 complains of occurred when the District denied payment years = later.

^[3]=20 Tex. Educ. Code =A7 = 7.057(a)=20 (=93Except as provided by Subsection (e), a person may appeal in writing = to the=20 commissioner if the person is aggrieved by: (1) the school laws of this = state;=20 or (2) actions or decisions of any school district board of trustees = that=20 violate: (A) the school laws of this state; or (B) a provision of a = written=20 employment contract between the school district and a school district = employee,=20 if a violation causes or would cause monetary harm to the=20 employee.=94).