IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0321

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Texas A&M University = System,

Texas Engineering = Experiment=20 Station, and Dr. Mark McLellan,

Petitioners,

Dr. Sefa Koseoglu,

Respondent

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On Petition for Review from = the

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

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Argued November=20 14, 2006

Justice Green delivered the = opinion of=20 the Court.

In = this case=20 we consider whether a plaintiff who, on appeal, loses a plea to the = jurisdiction=20 based on sovereign immunity is entitled to a remand for an opportunity = to cure=20 the jurisdictional pleading defect. We conclude that when a pleading = cannot be=20 cured of its jurisdictional defect, a plaintiff is not entitled to = amend.=20 Additionally, we must interpret section 51.014(a) of the Texas Civil = Practice=20 and Remedies Code to determine whether appellate courts have = jurisdiction to=20 consider a government official=92s appeal of a trial court=92s denial of = a plea to=20 the jurisdiction based on sovereign immunity. We conclude that Section=20 51.014(a)(8) vests appellate courts with such = jurisdiction.

Sefa Koseoglu worked = as a contract=20 employee at the Texas Engineering Experiment Station, which is a = division of the=20 Texas A&M University System. Koseoglu sued the Texas A&M=20 University System, the Texas Engineering Experiment Station (=93Texas = A&M,=94=20 collectively), and Mark McLellan, his = supervisor, for=20 allegedly breaching his employment contract. Both Texas A&M and McLellan = filed pleas to=20 the jurisdiction asserting sovereign immunity and challenging the trial = court=92s=20 jurisdiction to hear Koseoglu=92s claims. = The trial=20 court denied the pleas to the jurisdiction, and Texas A&M and McLellan = appealed. The=20 court of appeals reversed the trial court=92s judgment with respect to = Texas A&M=92s appeal, = holding Texas=20 A&M=92s sovereign immunity from suit = barred Koseoglu=92s breach of contract claim. 167 S.W.3d = 374, 384=20 (Tex. App.=97Waco 2005, pet. granted). Rather than dismiss Koseoglu=92s claim against Texas A&M, the court of appeals concluded Koseoglu deserved an opportunity to amend his = pleadings and=20 therefore remanded the matter to the trial court. Id. = With respect=20 to McLellan=92s appeal, the court of appeals = held it was=20 without jurisdiction to decide the appeal because, as a state official, = McLellan had no statutory right under section = 51.014(a)(8)=20 of the Texas Civil Practice and Remedies Code to appeal the trial = court=92s denial=20 of a plea to the jurisdiction premised on sovereign immunity. Id. We = affirm the=20 court of appeals=92 judgment with respect to Texas A&M=92s appeal, but reverse its remand = order and=20 dismiss Koseoglu=92s claim against Texas = A&M. With=20 respect to McLellan=92s appeal, we reverse = the court of=20 appeals=92 judgment and, rendering the judgment the court of appeals = should have=20 rendered, we dismiss Koseoglu=92s claim = against McLellan.

I. Background

In = 1999,=20 while still employed by Texas A&M, Koseoglu began moonlighting for a private business = enterprise he partially owned. In early 2002, soon after McLellan became Koseoglu=92s=20 supervisor, Koseoglu requested permission to = continue=20 his outside employment. McLellan denied = Koseoglu=92s request. Koseoglu=20 nevertheless continued the outside employment and, in October 2002, = McLellan informed Koseoglu that=20 his employment would be terminated at the end of the following month. = Seeking to=20 negotiate the terms of his dismissal, Koseoglu sent a=20 letter to the general counsel of the Texas A&M=20 University System on December 19, 2002. In the letter, Koseoglu proposed that he be permitted to remain = in his=20 position until August 2003 and receive certain other financial and = non-financial=20 benefits. The letter included a blank signature line, under the word = =93AGREED,=94=20 which was then signed by an attorney in the Texas A&M general counsel=92s office. On January 14, = 2003, Koseoglu=92s counsel sent a proposed draft of the = final=20 agreement to the Texas A&M general = counsel=92s=20 office. The final agreement was never signed. Koseoglu=92s counsel later wrote to the Texas = A&M general counsel=92s office that, by = refusing to execute=20 the January 14 settlement documents, the Texas A&M University System = was in=20 breach of the December 19 =93agreement.=94

In = April=20 2003, Koseoglu sued McLellan=20 and Texas A&M for breach of contract, = asserting=20 they breached the alleged December 19 agreement between Koseoglu and Texas A&M. Texas A&M and = McLellan each pled the affirmative defense of = sovereign=20 immunity and filed pleas to the jurisdiction. Koseoglu=20 filed a motion for summary judgment, contending in part that Texas A&M=92s and McLellan=92s sovereign=20 immunity had been waived for his breach of contract action because it = had been=20 waived for an underlying action under 42 U.S.C. =A7 1983 in which Koseoglu asserted a denial of due process with = respect to=20 his employment contract with Texas A&M. Four months after Texas = A&M and McLellan = filed their=20 pleas to the jurisdiction, the trial court denied them. Before the trial = court=20 ruled on Koseoglu=92s motion for summary = judgment, Texas=20 A&M and McLellan each=20 filed an interlocutory appeal. The court of appeals reversed the trial = court=92s=20 denial of Texas A&M=92s=20 plea to the jurisdiction and dismissed McLellan=92s=20 interlocutory appeal for want of jurisdiction. 167 = S.W.3d at=20 384. The court of appeals concluded that governmental entities do = not=20 waive their immunity from suit in Texas by accepting benefits under a = contract,=20 and that Koseoglu=92s pleadings against = Texas A&M=20 did not fit the narrow exception suggested by the plurality in Texas = A &=20 M University=97Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002), = because Koseoglu=92s underlying Section 1983 claim was not = one for=20 which sovereign immunity had been waived. 167 S.W.3d = at=20 380. Thus, the court of appeals held Koseoglu=92s=20 breach of contract claim was barred by Texas A&M=92s sovereign immunity from suit and = remanded=20 the case to the trial court, suggesting it might be possible for Koseoglu to state some entirely different claim = for which=20 sovereign immunity might have been waived =93with respect to the = termination of=20 the employer-employee relationship.=94 Id. at 383. With respect to McLellan=92s=20 appeal, the court of appeals held that, while section 51.014(a)(8) of the Texas Civil Practice and Remedies Code = vested it=20 with interlocutory appellate jurisdiction over a jurisdictional plea = filed by=20 state officials whose positions are derived from the Texas Constitution, = the=20 statute did not give it authority to review interlocutory orders on=20 jurisdictional pleas filed by all other state officials, such as McLellan. Id. at=20 377-79. Both Texas A&M and McLellan then timely appealed the court of = appeals=92 decision=20 to this Court.

=20 Texas A&M and McLellan argue the court of appeals erred on dual = grounds.=20 First, they contend the court of appeals erred in concluding it was = without=20 interlocutory appellate jurisdiction to review the jurisdictional plea = filed by=20 McLellan, a state official acting in his = official=20 capacity. Second, they argue the court of appeals should have dismissed = Koseoglu=92s breach of contract claim after it = concluded it=20 was barred by sovereign immunity, rather than remand it to the trial = court. We=20 first consider Texas A&M=92s and McLellan=92s=20 second issue.

II. Koseoglu=92s Suit=20 Against Texas A&M

=20 Koseoglu argues Texas A&M waived its sovereign immunity from suit on = his=20 Section 1983 due process claims and therefore, under Lawson, 87 = S.W.3d at=20 519-23, Texas A&M=92s immunity has been = waived in=20 this breach of contract case as well. In Lawson, a plurality of = this=20 Court held a plaintiff=92s claim for breach of an agreement settling his = underlying Whistleblower Act claim was encompassed within the = Legislature=92s=20 decision to waive immunity for Whistleblower Act claims. Id. at=20 522-23. But the court of appeals correctly held that the State = and its=20 officials sued in their official capacities are immune from money = damages sought=20 in a Section 1983 claim unless they waive their immunity. 167 S.W.3d at = 380=20 (citing Will v. Mich. Dep=92t of St. Police, 491 = U.S. = 58, 66=20 (1989)). It is up to the Legislature to institute such a waiver, and to date it has not seen fit to do so. = See=20 Tex. Natural Res. Conservation Comm=92n v. IT-Davy, 74 = S.W.3d 849,=20 857 (Tex. 2002). Thus, as the court of = appeals=20 held, Koseoglu never had an actionable = Section 1983=20 claim against Texas A&M and, therefore, = his=20 pleadings are deficient in the sense that Lawson is not = implicated.

=20 However, rather than dismiss Koseoglu=92s lawsuit=20 against Texas A&M, the court of appeals = reversed=20 the trial court=92s denial of Texas A&M=92s plea to=20 the jurisdiction and remanded the cause to the trial court so that Koseoglu could amend his pleadings. 167=20 S.W.3d at 383-84. It is true that a plaintiff deserves =93a = reasonable=20 opportunity to amend=94 unless the pleadings affirmatively negate the = existence of=20 jurisdiction. Harris=20 County v. Sykes, 136 = S.W.3d 635,=20 639 (Tex. 2004); Tex. Dep=92t of Parks and Wildlife v. = Miranda,=20 133 S.W.3d 217, 226-27 (Tex. 2004); = County=20 of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Thus, the issue = is whether=20 Koseoglu has already been afforded that = opportunity.=20 If not, we agree that he deserves the opportunity if his pleadings can = be=20 cured.

=20 Koseoglu argues a plaintiff is not = required to=20 amend his pleadings until they are determined by a court to be = deficient. Thus,=20 he contends he should now be provided an opportunity to amend. Texas = A&M, on the other hand, argues the = plaintiff=92s=20 opportunity to amend should come after the governmental entity files its = plea to=20 the jurisdiction, which puts the plaintiff on notice of alleged defects = in his=20 pleadings, but before the trial court takes any definitive action. = Accordingly,=20 Texas A&M contends, because Koseoglu had = four=20 months to amend his pleadings after it filed its jurisdictional plea, no = further=20 opportunity is warranted. Otherwise, Texas A&M=20 argues, suits against governmental entities could be appealed at least = twice=20 before final judgment=97once to obtain a reversal and remand, and a = second time=20 after the remand is ordered.

=20 The court of appeals sided with Koseoglu,=20 concluding =93a plaintiff may stand on his pleadings in the face of a = plea to the=20 jurisdiction unless and until a court determines that the plea is = meritorious.=94=20 167 S.W.3d at 383 (citing County of Cameron, 80 S.W.3d at = 559).=20 Thereafter, the court of appeals held, the plaintiff must be given =93 =91a reasonable opportunity to amend=92 his = pleadings to=20 attempt to cure the jurisdictional defects found=94 unless the pleadings = are=20 incurably defective. Id. = (citing=20 Sykes, 136 S.W.3d at 639; Tex. Dep=92t Of Transp. v. Ramirez, 74 S.W.3d 864, 867-68 = (Tex. 2002)). = Thus, the=20 court of appeals concluded, Koseoglu has not = been=20 given a reasonable opportunity to amend his pleadings because the trial = court=20 never found merit in Texas A&M=92s jurisdictional plea. Id.

=20 On this point, we generally agree with the court of appeals. = Texas A&M=92s proposed = rule would=20 essentially allow governmental entities the unjust advantage of being = not only a=20 litigant, but also the judge of the plaintiff=92s pleadings. We decline = to adopt=20 such a rule. Thus, we agree that Koseoglu = deserves the=20 opportunity to amend his pleadings if the defects can be cured.

=20 But Koseoglu=92s pleading defects = cannot be=20 cured, and he has made no suggestion as to how to cure the = jurisdictional=20 defect. As is the case with special exceptions, a pleader must be given = an=20 opportunity to amend in response to a plea to the jurisdiction only if = it is=20 possible to cure the pleading defect. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) = (=93Generally,=20 when the trial court sustains special exceptions, it must give the = pleader an=20 opportunity to amend the pleading, unless the pleading defect is of a = type that=20 amendment cannot cure.=94). Remanding this case would serve no = legitimate purpose=20 because Koseoglu=92s underlying claim is a = breach of=20 contract claim. Merely pleading more facts in support of the breach of = contract=20 claim will not overcome Texas A&M=92s immunity from suit. Koseoglu advances a waiver-by-conduct argument = (i.e., that=20 Texas A&M waived its immunity from suit = by=20 accepting benefits under its alleged contract with Koseoglu), but we have consistently rejected that = position=20 and held that =93the State does not waive its immunity from a = breach-of-contract=20 action by accepting the benefits of a contract.=94 Gen. Servs. Comm=92n v. = Little-Tex=20 Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); see, e.g.,=20 Catalina Dev. Co. v. County of El Paso, 121 S.W.3d 704, 705-06 = (Tex.=20 2003); Travis County v. Pelzel & = Assocs.,=20 Inc., 77 S.W.3d 246, 248 (Tex. 2002); IT-Davy, 74 S.W.3d at = 860;=20 Fed. Sign v. Tex. S. Univ., = 951 S.W.2d=20 401, 408 (Tex.=20 1997). And absent special statutory permission, a party cannot pursue a = breach=20 of contract action against the State without first obtaining consent = from the=20 Legislature under chapter 107 of the Texas Civil Practice and Remedies = Code.=20 Little-Tex, 39 S.W.3d at 597 (concluding that =93there is but one = route to=20 the courthouse for breach-of-contract claims against the State, and that = route=20 is through the Legislature.=94). Accordingly, the court of appeals erred = when it=20 concluded Koseoglu, who has not obtained = legislative=20 consent to sue, may be able to state a cause of action for which = sovereign=20 immunity has been waived and remanded the cause to give Koseoglu an opportunity to amend. See=20 Miranda, 133 S.W.3d at 228 (instructing that a plaintiff=92s suit = should be=20 dismissed when either the pleadings alone or the jurisdictional evidence = demonstrates that the plaintiff=92s suit incurably falls outside any = waiver of=20 sovereign immunity).

III. Appellate Jurisdiction Over McLellan=92s Interlocutory Appeal

=20 Absent the State=92s consent to suit, a trial court has no = jurisdiction=20 over claims against the State. Tex. = Dep=92t of Transp. v. Jones, 8 S.W.3d 636, 638-39 = (Tex. = 1999).=20 Appellate courts have jurisdiction to consider immediate appeals of=20 interlocutory orders only if a statute explicitly provides such = jurisdiction.=20 Stary v. DeBord, 967 S.W.2d = 352, 352-53=20 (Tex.=20 1998). In this case, the court of appeals held it was without=20 jurisdiction to hear McLellan=92s appeal = pursuant to=20 section 51.014(a)(8) of the Texas Civil = Practice and=20 Remedies Code. 167 S.W.3d at 379. This = question of=20 jurisdiction is a question of law, which we review de novo. State v. Holland, = 221 S.W.3d=20 639, 642 (Tex.=20 2006).

=20 Our sole objective in construing Section 51.014(a)(8) is to give effect to the Legislature=92s = intent. Monsanto Co. v. Cornerstones Mun. Util. = Dist., 865 S.W.2d 937, 939 (Tex.=20 1993). In determining the Legislature=92s intent, we = begin by=20 looking to the plain meaning of the statute=92s words. Liberty=20 Mut. Ins. = Co. v.=20 Garrison Contractors, Inc., 966 = S.W.2d 482, 484=20 (Tex.=20 1998). Section 51.014(a) contains two provisions that = could=20 arguably be relevant to interlocutory appeals of jurisdictional = decisions=20 relating to sovereign immunity:

A person=20 may appeal from an interlocutory order of a district court, county court = at law,=20 or county court that:

=20 . . . .

=20 (5) denies a motion for summary = judgment that is=20 based on an assertion of immunity by an individual who is an officer or = employee=20 of the state or a political subdivision of the state;

=20 . . . .

=20 (8) grants or denies a plea to the = jurisdiction=20 by a governmental unit as that term is defined in Section 101.001;

=20 . . . .

Section 101.001(3) of = the Civil=20 Practice and Remedies Code defines =93governmental unit=94 as:

(A) this=20 state and all the several agencies of government that collectively = constitute=20 the government of this state, including other agencies bearing different = designations, and all departments, bureaus, boards, commissions, = offices,=20 agencies, councils, and courts;

(B) a=20 political subdivision of this state, including any city, county, school=20 district, junior college district, levee improvement district, drainage=20 district, irrigation district, water improvement district, water control = and=20 improvement district, water control and preservation district, = freshwater supply=20 district, navigation district, conservation and reclamation district, = soil=20 conservation district, communication district, public health district, = and river=20 authority;

(D) any other institution, agency, or organ of = government the=20 status and authority of which are derived from the Constitution of Texas = or from=20 laws passed by the legislature under the constitution.

We = strictly=20 construe Section 51.014(a) as =93a narrow exception to the general rule = that only=20 final judgments are appealable.=94 Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. = 2001).

=20 Had McLellan filed a motion for = summary=20 judgment based on an assertion of official immunity, he clearly would be = permitted under Section 51.014(a)(5) to = appeal an=20 interlocutory denial of his motion for summary judgment. But McLellan did not file such a motion in the trial = court and=20 instead asserts a right under Section 51.014(a)(8) to=20 appeal the trial court=92s interlocutory denial of his plea to the = jurisdiction.=20 While it is clear that the Legislature intended only a few and distinct = classes=20 of =93persons=94 to be permitted to bring interlocutory appeals in only = a few=20 narrowly drawn situations, there is considerable conflict among the = courts of=20 appeals about when state officials qualify to do so. Some courts of = appeals have=20 concluded interlocutory review of a plea to the jurisdiction is not = available=20 under Section 51.014(a)(8) when state = officials are=20 sued in their official capacities because a state official is an = individual=20 rather than =93a governmental unit.=94 See, = e.g.,=20 Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 780 (Tex. = App.=97Fort=20 Worth 2001, pet. dism=92d w.o.j.); Dallas County Cmty. Coll. Dist. v. = Bolton, 990 S.W.2d 465, 467 (Tex. App.=97Dallas = 1999, no=20 pet.); Univ. of Houston v. Elthon, 9 S.W.3d 351, 354 (Tex. App.=97Houston = [14th Dist.]=20 1999, pet. dism=92d w.o.j.). A second group has held = all state=20 officials are entitled under Section 51.014(a)(8) to=20 appeal a trial court=92s interlocutory ruling on a jurisdictional plea = because a=20 state official qualifies as a =93governmental unit=94 in the sense that = he stands in=20 the shoes of the State. See, e.g., De Mino=20 v. Sheridan, 176 S.W.3d 359, 365 (Tex. App.=97Houston [1st Dist.] = 2004, no=20 pet.); Smith v. Lutz, 149 S.W.3d 752, 756 (Tex. App.=97Austin = 2004, no=20 pet.); Potter County Attorney=92s Office v. Stars & Stripes=20 Sweepstakes, L.L.C., 121 S.W.3d 460, 464 (Tex. App.=97Amarillo 2003, = no pet.);=20 Nueces County v. Ferguson, 97 S.W.3d 205, 214-15 (Tex. = App.=97Corpus=20 Christi 2002, no pet.). Straddling that split is the court of appeals in = this=20 case, which held some state officials, such as a county sheriff, are = entitled to=20 appeal a trial court=92s interlocutory order on a plea to the = jurisdiction because=20 their positions are governmental units by virtue of the fact that they = are=20 derived from the Texas Constitution. 167 S.W.3d at 377-79 (citing Tex. Const. art. V, =A7=20 23; Tex. Gov=92t Code =A7 = 101.001(3)(D)). Those officials who are not so situated must = rely=20 instead, under the court=92s holding, on a motion for summary judgment = under=20 Section 51.014(a)(5) because they are = considered=20 individuals rather than governmental units. Id.

=20 In arguing Section 51.014(a)(8) does not permit state officials = to appeal=20 the trial court=92s denial of his plea to the jurisdiction, Koseoglu contrasts the language of Section = 51.014(a)(8) with=20 the language in Section 51.014(a)(5). Whereas Section 51.014(a)(8) permits interlocutory appeals of a trial = court=92s grant=20 or denial of a =93plea to the jurisdiction=94 by a =93governmental = unit,=94 Section=20 51.014(a)(5) permits interlocutory appeals of a trial court=92s denial = of a=20 =93motion for summary judgment=94 by an =93individual who is an officer = or employee of=20 the state or a political subdivision of the state.=94 The Legislature, = Koseoglu asserts, should be presumed to have = understood the=20 difference between an =93individual who is an officer or employee of the = state,=94=20 on the one hand, and =93a governmental unit=94 on the other, when = specifying the=20 categories of persons that are permitted to employ the narrow exception = to the=20 general rule. Likewise, Koseoglu argues, the = Legislature should be presumed to have understood the difference between = a=20 =93motion for summary judgment=94 as it is used in Section 51.014(a)(5) and a =93plea to the jurisdiction=94 as it is = used in=20 Section 51.014(a)(8).

=20 But Koseoglu=92s premise that the = class of=20 persons to which Section 51.014(a)(8) applies = is=20 confined by the term =93governmental unit=94 is incorrect. This becomes = clear when=20 one considers which terms or phrases in Section 51.014(a) specify = =93what=94 can be=20 appealed and =93who=94 is entitled to pursue an appeal. Koseoglu argues the =93what=94 applicable to = Section=20 51.014(a)(5) is =93a motion for summary = judgment=94 and the=20 =93who=94 is =93an individual who is an officer or employee of the = state.=94 Likewise,=20 he argues the =93what=94 in Section 51.014(a)(8) is =93a plea=20 to the jurisdiction=94 and the =93who=94 is =93a governmental unit.=94 = We disagree. The=20 text of Section 51.014(a) makes it clear that the =93who=94 applicable = to each=20 subsection is the term =93person=94 that = appears at the=20 beginning of the statute. There is no indication that the phrases =93an = individual=20 who is an officer or employee of the state=94 or =93a governmental = unit=94 in Sections=20 51.014(a)(5) and 51.014(a)(8), respectively, are intended to modify the = term=20 =93person.=94 Instead, those phrases and others in the various = subsections of the=20 statute describe exactly =93what=94 may be appealed from an = interlocutory order.

=20 For example, Texas A&M and McLellan cite=20 Sections 51.014(a)(5) and 51.014(a)(6) as = support for=20 their proposition that only one class of =93person=94 may appeal the = orders=20 described in Section 51.014(a). Section 51.014(a)(6)=20 permits a person to appeal from an interlocutory order that:

denies a=20 motion for summary judgment that is based in whole or in part upon a = claim=20 against or defense by a member of the electronic or print media, acting = in such=20 capacity, or a person whose communication appears in or is published by = the=20 electronic or print media, arising under the free speech or free press = clause of=20 the First Amendment to the United States Constitution, or Article I, = Section 8,=20 of the Texas Constitution, or Chapter 73.

Thus, Section=20 51.014(a)(6) limits interlocutory appeals to = =93members=20 of the electronic or print media=94 in certain instances involving the = =93free=20 speech or free press clause of the First Amendment to the United States=20 Constitution.=94 It can only be read as allowing appeals by members of = the media=20 =93or a person whose communication appears in or is published by=94 the = media. No=20 other person would typically have standing to appeal a denial of =93a = motion for=20 summary judgment that is based in whole or in part upon a claim against = or=20 defense by a member of the electronic or print media . . . or a person = whose=20 communication appears in or is published by the electronic or print = media.=94=20 Similarly, there is no other way to read Section 51.014(a)(5) than to conclude that only an =93individual = who is an=20 officer or employee of the state or a political subdivision of the = state=94 may=20 appeal an interlocutory order denying a motion for summary judgment. The = only=20 other entity that would generally have standing to file such an appeal = would be=20 a governmental body, but the words of Section 51.014(a)(5) offer no = indication=20 or suggestion that it applies to any entity other than a state official, = the=20 only entity which it describes. This stands to reason because an = official sued=20 in his individual capacity would assert official immunity as a defense = to=20 personal monetary liability, which is well suited for resolution in a = motion for=20 summary judgment. See City of Lancaster v. Chambers, 883 S.W.2d = 650, 653=20 (Tex. 1994)=20 (discussing summary judgment resolution of official immunity = considerations such=20 as whether the official acted in bad faith). But an official sued in his = official capacity would assert sovereign immunity. To challenge a trial = court=92s=20 jurisdiction on the grounds of sovereign immunity, a party may file a = plea to=20 the jurisdiction. Tex. = Dep=92t of Transp. v. Jones, 8 S.W.3d 636, 638 = (Tex. = 1999). Pleas=20 to the jurisdiction asserting sovereign immunity are the subject of = Section=20 51.014(a)(8).

=20 Section 51.014(a)(8) differs from Sections 51.014(a)(5) and = 51.014(a)(6)=20 because, by its plain language allowing for interlocutory appeals of = orders=20 granting or denying pleas to the jurisdiction, it cannot be read as = applying=20 solely to a governmental unit, the entity which it describes. = Interpreting=20 =93governmental unit=94 to modify the term =93persons,=94 as Koseoglu would have us do, would preclude an = aggrieved=20 plaintiff, who is plainly not a governmental unit, from bringing an=20 interlocutory appeal to challenge the grant of a jurisdictional plea. = This would=20 be inconsistent with the express language of Section 51.014(a)(8). It would be irrational for the Legislature to = have=20 intended that a governmental unit be the only =93person=94 who may = appeal from an=20 interlocutory order because a governmental unit would have no reason to = appeal=20 the grant of a plea to the jurisdiction. For the entire phrase =93grants = or=20 denies=94 to be given effect, the statute must allow an appeal to be = filed by both=20 a non-governmental plaintiff challenging the grant of a plea to the = jurisdiction=20 and a governmental defendant challenging the denial of one.[1]

=20 Given that Section 51.014(a)(8) = necessarily=20 applies to entities other than governmental units, there is no basis for = construing it to exclude state officials. Whereas the Legislature = intentionally=20 restricted the application of Sections 51.014(a)(5) and 51.014(a)(6) by = allowing=20 interlocutory appeals only from a denial of a motion for summary = judgment,=20 Section 51.014(a)(8) is deliberately made more generous in its = application.=20 There is no reason to believe the Legislature intended the statute to = apply to=20 all parties who ordinarily would have standing to appeal an = interlocutory order=20 granting or denying a jurisdictional plea with the sole exception of = state=20 officials. First, such an interpretation would not comport with the text = of the=20 statute because, just as Section 51.014(a)(8) gives no indication it = excludes=20 non-governmental plaintiffs, it also gives no indication it excludes = state=20 officials. Second, construing Section 51.014(a)(8) to exclude state = officials=20 would draw an artificial distinction between pleas filed by governmental = entities and pleas filed by state officials asserting the entities=92 = sovereign=20 immunity from suit, a distinction we believe the Legislature could not = have=20 intended. When a state official files a plea to the jurisdiction, the = official=20 is invoking the sovereign immunity from suit held by the government = itself. It=20 is fundamental that a suit against a state official is merely =93another = way of=20 pleading an action against the entity of which [the official] is an = agent.=94=20 Kentucky v. Graham, 473 U.S. 159, 165 (1985) = (quoting Monell v. New York City Dep=92t of = Social Servs., 436 U.S. 658, 690 n.55=20 (1978)); see also Tex. Dep=92t of Pub. Safety v.=20 Petta, 44 = S.W.3d 575,=20 581 (Tex.=20 2001). A suit against a state official in his official = capacity =93is not a suit against the official personally, for = the real=20 party in interest is the entity.=94 Graham, = 473=20 U.S. at 166 (emphasis in=20 original). Such a suit actually seeks to impose liability against = the=20 governmental unit rather than on the individual specifically named and = =93is, in=20 all respects other than name, . . . a suit = against the=20 entity.=94 Id.; see also = Tex. Natural Res. Conservation Comm=92n v. IT-Davy, 74 S.W.3d 849, 855-56 = (Tex. = 2002).

=20 Thus, we conclude McLellan=92s appeal = fits=20 squarely into those appeals permitted by Section 51.014(a)(8). Read in whole, the statute provides that =93a = person,=94 in=20 this instance McLellan, =93may appeal from = an=20 interlocutory order . . . that . . . grants or denies a plea to the = jurisdiction=20 by a governmental unit,=94 such as Texas A&M, =93as that term is = defined in=20 Section 101.001.=94 Tex. Civ. = Prac. &=20 Rem. Code =A7 51.014(a)(8). This = construction is=20 supported not only by the plain language of Section 51.014(a), but also = by its=20 logical application. A person sued in an official capacity should be = able to=20 appeal the denial of a jurisdictional plea in the same way as his = employing=20 governmental unit because both defendants=92 interests in pleading = sovereign=20 immunity are identical. We are aware of no sound rationale for = distinguishing=20 one from the other.

=20 To the contrary, there are sound reasons to treat the state = official sued=20 in his official capacity and his employing governmental entity equally = under=20 Section 51.014(a)(8). Construing Section = 51.014(a)(8)=20 to exclude state officials sued in their official capacity would make = appellate=20 jurisdiction in a case such as this turn on the same kind of technical=20 distinctions about the form of pleadings that we rejected in = Department of=20 Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). In=20 Simons, we held the term =93plea to the jurisdiction=94 in = Section=20 51.014(a)(8) refers to the substance of the = immunity=20 argument rather than =93to a particular procedural vehicle.=94 = Id. = This case=20 demonstrates the type of inefficiencies that would otherwise result. = Here, the=20 court of appeals held it could consider Texas A&M=92s plea on interlocutory appeal but = not McLellan=92s. 167 S.W.3d at = 384. If=20 McLellan were to now go back to the trial = court to=20 file a motion for summary judgment based on sovereign immunity, and if = his=20 motion were denied, he would then file what would be his second = interlocutory=20 appeal in this case seeking substantively identical relief. This = situation could=20 be expected to all too often repeat itself in other cases because a = trial=20 court=92s orders on a jurisdictional plea and a motion for summary = judgment often=20 occur across too broad a spectrum of time to be appealed as part of the=20 defendant=92s same interlocutory appeal. See Tex. R. App. P. 26.1(b), 28.1 = (requiring a notice of interlocutory appeal to be filed within twenty = days of a=20 particular order being challenged). The legislative history of Section = 51.014(a)=20 underscores the Legislature=92s concern with preventing such = inefficiency. For=20 example, Section 51.014(a)(8) was designed to reduce litigation expenses = for all=20 parties involved in suits against state entities by resolving the = question of=20 sovereign immunity prior to suit rather than after a full trial on the = merits.[2] These cost savings apply = equally=20 regardless of whether the plaintiff chooses to style his petition = against a=20 governmental entity or a state official. Likewise, the purpose of the = provision=20 was to allow state agencies to more quickly ascertain whether or not a = trial=20 court could assert jurisdiction over a dispute. See Debate on = Tex. S.B.=20 453 Before the House Comm. on Civil = Practices, 75th=20 Leg., R.S. (1997) (statement of Representative Pete=20 Gallego). That concern too is equally justified = regardless of=20 whether a plaintiff has chosen to style his petition against a state = official or=20 the governmental entity itself.

=20 As may typically occur, an official sued in both his official and = individual capacities can file a plea to the jurisdiction in defense of = the=20 official capacity claims against him and at the same time file a motion = for=20 summary judgment on official immunity grounds on the individual capacity = claims=20 against him. If either is denied, he may immediately appeal under = Section=20 51.014(a)(8) or 51.014(a)(5), whichever = applies. In=20 this case, McLellan filed a plea to the = jurisdiction=20 in defense of claims against him in his official capacity.[3] Accordingly, Section = 51.014(a)(8) vests the appellate courts with jurisdiction = to hear=20 McLellan=92s interlocutory appeal.

=20 Alternatively, Koseoglu suggests the=20 availability of interlocutory appeal under Section 51.014(a)(8) turns not on the capacity in which the state = official is=20 sued, but on whether the official serves a legislative, judicial, or=20 administrative function. But Koseoglu offers = no=20 authority for the proposition that this distinction is relevant to = Section=20 51.014(a)(8), and we are aware of none. Thus, = the court=20 of appeals erred in concluding it was without jurisdiction to hear McLellan=92s appeal.

IV. Conclusion

=20 With respect to the trial court=92s denial of Texas A&M=92s plea to the jurisdiction, we affirm = the portion of=20 the court of appeals=92 judgment holding that Koseoglu=92s=20 breach of contract claims against Texas A&M were barred by sovereign = immunity. But because Koseoglu=92s pleadings = are=20 incurably defective, remanding the cause to the trial court will serve = no=20 legitimate purpose. Therefore, we reverse the court of appeals=92 remand = order and=20 dismiss Koseoglu=92s claims against Texas = A&M with prejudice. See Harris County v. = Sykes,=20 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal = pursuant to=20 a plea to the jurisdiction based on sovereign immunity is with = prejudice). With=20 respect to McLellan=92s appeal, having = examined the=20 plain language of Section 51.014(a)(8), its = logical=20 application, and the legislative history, we hold a state official may = seek=20 interlocutory appellate review from the denial of a jurisdictional plea. = Accordingly, we reverse that portion of the court of appeals=92 judgment = that it=20 was without jurisdiction to decide McLellan=92s appeal=20 of the trial court=92s denial of his jurisdictional plea and, under Rule = 60.2(c)=20 of the Texas Rules of Appellate Procedure, we render the judgment the = court of=20 appeals should have rendered. Like Koseoglu=92s=20 pleadings against Texas A&M, his = pleadings against=20 McLellan were deficient in the sense that he = never had=20 an actionable Section 1983 claim. In both instances, Koseoglu deserves the opportunity to amend his = pleadings if=20 they can be cured, but in both instances, because Koseoglu=92s underlying claim is one for breach of = contract,=20 the defects cannot be cured. Accordingly, just as we dismissed Koseoglu=92s claim against Texas A&M with prejudice, we likewise dismiss with = prejudice=20 the claim against McLellan in his official=20 capacity.

&nbs= p; = ; = &= nbsp; &n= bsp; =20 ________________________________________

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Paul W. Green

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Justice

OPINION = DELIVERED:=20 September 7, 2007

^[1]=20 Section 51.014(a) references section 101.001(3) of the Tort Claims Act = in=20 articulating its meaning of the term =93governmental unit.=94 Koseoglu contends this reference eliminates all = doubt as to=20 whether the Legislature intended individual state officials to be = permitted to=20 bring a challenge by way of a plea to the jurisdiction. Government = employees are=20 not included in the definition of =93governmental unit=94 under the Tort = Claims Act.=20 See Tex. Civ. Prac. = & Rem. Code =A7 = 101.001(3)=20 (defining =93governmental unit=94). Texas A&M, however, argues that under the Tort Claims = Act=20 officials sued in their official capacities have been treated by several = of the=20 courts of appeals as the equivalent of governmental entities. See, = e.g.,=20 Harrison v. Tex. Dep=92t of Criminal Justice-TDCJID, No. = 07-03-0239-CV,=20 2005 WL 1397415, at *2 (Tex. App.=97Amarillo June 14, 2005, no pet.) = (mem. op.); Tex. State Auditor=92s Office v.=20 Mora-Nichols, No. 03-03-00113-CV, 2003 WL 22453830, at *4 (Tex. = App.=97Austin=20 Oct. 30, 2003, no pet.) (mem. op.);=20 Madox v. Thomas, No. = 11-02-00042-CV,=20 2003 WL 21757477, at *2 (Tex. App.=97Eastland July 31, 2003, = no=20 pet.) (mem. op.); = Klein=20 & Assocs. Political Relations v. Port Arthur Indep. Sch.=20 Dist., 92 S.W.3d 889, 896 (Tex. App.=97Beaumont 2002, pet. denied); = Univ.=20 of Tex. Med. Branch at Galveston v. Hohman, 6=20 S.W.3d 767, 777-78 (Tex. App.=97Houston [1st Dist.] 1999, pet. dism=92d w.o.j.); = Bates v.=20 Dallas Indep. Sch. Dist., 952 S.W.2d 543, 551 (Tex. App.=97Dallas = 1997, writ=20 denied); Dear v. City of Irving, 902=20 S.W.2d 731, 735 n.4 (Tex. App.=97Austin 1995, writ = denied).=20 Because we concluded in Department of Criminal Justice v. Simons, = 140=20 S.W.3d 338, 349 (Tex. 2004), that the term =93governmental unit,=94 as = it is used in=20 Section 51.014(a)(8), merely describes the substance of allowable pleas = and=20 conclude today that Section 51.014(a)(8)=92s use of =93governmental = unit=94 does not=20 define the class of persons who can appeal under that section, we need = not=20 address the meaning of the term in Section 101.001(3).

^[2]=20 Supporters of the provision believed =93incorrect rulings on = [jurisdictional=20 pleas] needlessly waste the time of the courts and can cost litigants = hundreds=20 of thousands of dollars as they defend cases which should have been = dismissed.=94=20 See House Comm. On = Civil=20 Practices, Bill Analysis, Tex. S.B. 453, 75th Leg., R.S.=20 (1997).

^[3]=20 The parties disagree about whether Koseoglu = brought=20 claims against McLellan in his individual = capacity.=20 Any such claims are not at issue in this appeal because McLellan=92s plea to the jurisdiction, whose = denial gave rise=20 to this appeal, invoked sovereign immunity only =93to the extent [McLellan was] sued in his official capacity.=94 = Therefore, any=20 claims against McLellan in his individual = capacity=20 remain pending before the trial court. See, = e.g.,=20 Smith v. Lutz, 149 S.W.3d 752, 756 n.3 (Tex. App.=97Austin 2004, = no=20 pet.).