MEMORANDUM OPINION
PER CURIAM.
The Court has before it appellant's "motion for a voluntary withdrawal," in which she requests that this appeal be dismissed. See Tex. R. App. P. 42.1(a). We grant the motion and dismiss the appeal.
actor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
TEX. CIV. PRAC. REM. CODE ANN. § 101.001(2) (Vernon 2005).
Although her pleadings allege that "Linebarger, Oyugi, Edwards, and Blahare agents of such governmental subdivisions [the taxing entities]," Ross argues on appeal that Linebarger failed to prove that it was an employee rather than an independent contractor. However, Ross, as the plaintiff, bears the burden of pleading facts sufficient to establish the trial court's jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In her petition, she alleged that the law firm and its employees were "agents" of various governmental units, and section 101.001(2) provides that agents in the paid service of a governmental unit are considered employees. See TEX. CIV. PRAC. REM. CODE ANN. § 101.001(3)(B) (providing that political subdivisions of state, including cities, counties, and school districts, are governmental units), § 101.001(2) (defining employee). Ross has asserted no facts indicating that the taxing entities did not have the legal right to control the details of the tax-collecting task delegated to Linebarger. See id. § 101.001(2) (stating that "employee" does not include one whom governmental unit does not have legal right to control details of work).
Thus, we conclude that Ross has presented no evidence to disprove that Linebarger, as an agent of the Fort Bend taxing authorities, stands as the equivalent of a state official or employee. We next determine the capacity in which Ross sued Linebarger.
B. Capacity
"A plaintiff may sue a governmental employee or official in the person's official capacity, individual capacity, or both." Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex.App.-Corpus Christi 2002, no pet.). Claims against governmental employees in their official capacities are separate and distinct from claims against governmental employees in their individual capacities. Id. at 213-14. "It is fundamental that a suit against a state official is merely `another way of pleading an action against the entity of which [the official] is an agent.`" Koseoglu, 233 S.W.3d at 844 (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)). In a suit against a person in his official capacity, the real party in interest is the employing governmental entity. Id. A suit against a person in his individual capacity, however, seeks to impose personal liability on the individual being sued for personal actions under color of state law. Ferguson, 97 S.W.3d at 214 (citing Graham, 473 U.S. at 165, 105 S.Ct. at 3105).
Ross's petition makes various factual allegations and then generally asserts breach of contract, negligent misrepresentation, wrongful foreclosure, claims of substantive and procedural due process violations, a challenge to the validity of the tax sale to Gorringe, and a claim for excess proceeds against "[Fort Bend] County, [Fort Bend] ISD, City [of Sugar Land], Schultz, Linebarger, Oyugi, Edwards and Blair in their official — if any — and individual capacities." Thus, the exact nature of the claims against the law firm and its employees is unclear, and we must examine the "course of proceedings" to determine the nature of the liability Ross seeks to impose. See id. at 215 (citing Graham, 473 U.S. at 167, 105 S.Ct. 3099 n. 14, 105 S.Ct. at 3106).
In our review of the pleadings, we must ascertain the true nature of the plaintiffs claims and not exalt form over substance. Pickell v. Brooks, 846 S.W.2d 421, 424 n. 5 (Tex.App.-Austin 1992, writ denied) (citing State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961)). Here, Ross alleged a cause of action against the taxing entities and Linebarger for breach of contract, apparently arising from the November 2005 installment payment agreement Ross entered into with Patsy Schultz, the Fort Bend County Tax Assessor, to make payments on her past-due taxes. Ross also alleged negligent misrepresentation, wrongful foreclosure, and procedural due process claims against the taxing entities and Linebarger, apparently based on (1) her allegation that "[n]obody at or for the County could count from July 14, 2006, up 180 days to January 10, 2007 in order to determine the critical deadline for redemption of the Property" and (2) the failure to give her proper notice of the actions being taken against her. Ross specifically alleged that various people, including an unnamed constable and Linebarger employees Edwards and Blair, had misinformed her of the deadline for redeeming the property and that Schultz, Edwards, and Oyugi had given her conflicting information regarding whether she had successfully redeemed the property.
Every allegation in Ross's petition against Linebarger relates to actions taken in the process of collecting taxes on behalf of the taxing entities. She does not allege any claims or actions by Linebarger that were not a part of its effort to collect delinquent taxes. Thus, we conclude that the true nature of Ross's claims is that of claims against Linebarger in its official capacity as an agent of the taxing entities. See Pickell, 846 S.W.2d at 424 n. 5 (holding that we must determine true nature of plaintiffs claims); see also Koseoglu, 233 S.W.3d at 844 (holding that suit against state official in his official capacity is merely "another way of pleading an action against the entity of which [the official] is an agent").
We conclude that Ross sued the law firm and its employees in their official capacity only. See Pickell 846 S.W.2d at 424 n. 5; see also Terrell v. Sisk, 111 S.W.3d 274, 281-82 (Tex.App.-Texarkana 2003, no pet.) (holding that judge was sued in his official capacity only because all allegations in petition "were of claimed wrongdoing or negligence by [the judge] in actions he was able to take only because of his position as a public servant" and it did not allege any actions taken outside his official capacity).
We therefore conclude that we have interlocutory jurisdiction to review the trial court's grant of Linebarger's plea to the jurisdiction. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8); Koseoglu, 233 S.W.3d at 845. We now turn to the merits of Ross's appeal.
Plea to the Jurisdiction
In her first issue, Ross contends that the law firm and its employees are not entitled to any form of immunity from suit and, therefore, the trial court erred in dismissing all of her claims against the Linebarger defendants.
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that is intended to defeat a cause of action for lack of subject-matter jurisdiction regardless of whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject-matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass'n of Bus., 852 S.W.2d at 443-44. The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Id. at 446.
The existence of subject-matter jurisdiction is a question of law. State Dep't of Hwys. Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). Therefore, we review the trial court's ruling on a plea to the jurisdiction de novo. Id. When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).
The plea to the jurisdiction standard mirrors that of a traditional motion for summary judgment. Id. at 228; City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex.App.-Fort Worth 2009, no pet.). The governmental unit must meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. Miranda, 133 S.W.3d at 228; Robinson, 300 S.W.3d at 895. Once the governmental unit meets its burden, the plaintiff must show that there is a disputed material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228; Robinson, 300 S.W.3d at 895. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Robinson, 300 S.W.3d at 895; see Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be re-solved by the fact-finder; however, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 227-28. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
B. Linebarger's Entitlement to Governmental Immunity
Ross contends that Linebarger is not entitled to sovereign, governmental, or official immunity. Linebarger contends that it is entitled to governmental immunity because it and its employees are agents of the taxing entities performing the governmental function of tax collection.
The doctrine of governmental immunity protects political subdivisions of the State from lawsuits for damages absent a waiver of immunity or legislative consent to sue. MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 487 (Tex.App.-Houston [14th Dist.] 2009, no pet.). It is undisputed that the taxing entities represented by Linebarger are governmental units. See TEX. CIV. PRAC. REM. CODE ANN. § 101.001(3)(B) (defining governmental unit as including "a political subdivision of this state, including any city, county, [and] school district"). It is likewise clear that suits against the taxing entities for actions taken in the course of assessing and collecting taxes are barred by governmental immunity. See id. § 101.055 (Vernon 2005) (providing for no waiver of immunity under Texas Tort Claims Act for any claim arising in connection with assessment or collection of taxes by governmental unit).
Sovereign immunity refers to the State's immunity from suit and liability, and is not implicated in this case. See MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 487 n. 3 (Tex.App.-Houston [14th Dist.] 2009, no pet.). However, the terms "sovereign immunity" and "governmental immunity" are often used interchangeably; therefore, we use term governmental immunity except when quoting a case or other source that uses the term sovereign immunity to refer to the immunity of political subdivisions of the state.
Although Linebarger itself is not a governmental unit, we have already concluded that Ross sued it as a governmental agent in its official capacity, and thus it can assert the governmental immunity enjoyed by the taxing entities. See Koseoglu, 233 S.W.3d at 843-44 (holding that "an official sued in his official capacity would assert sovereign immunity" and that "[w]hen a state official files a plea to the jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself); see also Ferguson, 97 S.W.3d at 215 (holding that government employee sued in his official capacity enjoys sovereign immunity protection only to extent that he was acting in his official capacity). Thus, the question before this Court is whether Linebarger, engaged by the governmental units for the purpose of performing the governmental function of collecting taxes, has established its immunity from suit as a governmental agent for its actions taken while collecting the taxes. See Miranda, 133 S.W.3d at 228 (holding that governmental unit must meet summary judgment standard of proof for its assertion that trial court lacks jurisdiction).
In City of Houston v. First City National Bank, this Court addressed the issue of whether counsel for various taxing units was liable for attorney fees incurred by a taxpayer in a suit to force the taxing units to comply with terms of an agreement. 827 S.W.2d 462, 479 (Tex.App.-Houston [1st Dist.] 1992, writ denied). We held that tax collection activity by a city or school district is a governmental, and not a proprietary, function, "and the mere fact that the tax collection function has been assigned to a private law firm does not change the nature of the function from governmental to proprietary." Id. at 480. We also observed that section 101.055 of the Texas Tort Claims Act (TTCA) was intended "to insure immunity to the taxing unit while performing the governmental function of collecting revenue." Id. at 481. Therefore, "imposing personal liability upon [the taxing unit's] agent while performing this governmental function would be contrary to public policy." Id.
In First City Bank, we also addressed the nature of the liability of an agent. We discussed the established rule "that where an agent acts on behalf of a disclosed principal . . . within the scope of the authority conferred on him, it will not ordinarily be personally liable to the other party to the contract, in the absence of an agreement to the contrary or other circumstances showing that he has, either expressly or impliedly, assumed such liability." Id. at 480. We stated that the only exceptions to the general rule that "[i]n a legitimate transaction, an agent is ordinarily liable only to his principal" occur when (1) the agent contracts in his own name, (2) the principal is undisclosed, (3) the agent is authorized to act as the owner of the property, or (4) the agent has an interest in the subject matter of the contract. Id.
Here, as we have already discussed, Ross's own pleadings allege that the Linebarger defendants were agents of the taxing entities. In her live petition, Ross alleged a cause of action "against County, ISD, City, Schultz, Linebarger, Oyugi, Edwards, and Blair" for breach of contract based on the November 2005 installment payment agreement. Ross also alleged negligent misrepresentation, wrongful foreclosure, and procedural due process claims against the taxing entities and Linebarger based on her allegations that no one gave her proper notice of the actions being taken against her, that "[n]obody at or for the County could count from July 14, 2006, up 180 days to January 10, 2007 in order to determine the critical deadline for redemption of the Property," that various people, including a county official and Linebarger employees, misinformed her of the deadline for redeeming the property, and that Schultz and Linebarger employees had given her conflicting information regarding whether she had successfully redeemed the property.
Every allegation in Ross's petition relates to actions taken by Linebarger in the process of collecting taxes on behalf of the taxing entities. She does not allege any claims or actions taken by the law firm or any of its employees that were not a part of the delegated governmental function of collecting Ross's delinquent taxes.
Ross argues that "[t]he application of [sovereign immunity] and [governmental immunity] to law firms collecting taxes has been rejected," relying on Gonzalez v. Heard, Goggan, Blair Williams, 923 S.W.2d 764 (Tex.App.-Corpus Christi 1996, writ denied) and Zuniga v. Navarro Assocs., P.C., 158 S.W.3d 663 (Tex.App.-Corpus Christi 2005, pet. denied). However, Ross misreads the holdings in Gonzalez and Zuniga, both of which are distinguishable from the present case.
In Gonzalez, the Corpus Christi Court of Appeals reversed the trial court's rendition of summary judgment in favor of a law firm on the ground of sovereign immunity because it determined that the law firm had not presented adequate evidence to establish whether it was "an independent contractor or an agent/employee" of the taxing units. 923 S.W.2d at 766. In Gonzalez, the court also noted that the firm was "sued for its own actions involving foreclosure on the Gonzalez' property, not the actions of the taxing entities." Id. at 767. In Zuniga, the court relied on Gonzalez in reversing the trial court's summary judgment in favor of the law firm on the grounds of sovereign and official immunity, again because the firm had failed to produce adequate summary judgment evidence to establish that it was an agent-employee of the governmental entity acting in good faith. 158 S.W.3d at 673. As in Gonzalez, the plaintiffs did not sue the law firm for acts in foreclosing on or selling the property. Id. at 668. Instead, the plaintiffs in Zuniga, who were not the original owners of the property, but were the purchasers of the property at the foreclosure sale, based their claims on "misrepresentations made outside the foreclosure or tax collection process." Id.
Ross, by contrast, alleged all of her causes of action against both the taxing entities and Linebarger. Her pleadings make it clear that, just as in First City Bank, she is suing Linebarger for its actions taken in the course of accomplishing the governmental act delegated to it by the taxing entities that enjoy immunity for the very same act. See First City Bank, 827 S.W.2d at 480-81. Thus, we conclude that imposing personal liability on Linebarger for actions taken while performing the governmental function of collecting taxes would be contrary to public policy. See id. at 481.
We conclude that the trial court correctly granted Linebarger's plea to the jurisdiction and dismissed all of Ross's claims against the law firm and its employees.
Ross's petition also asserts waiver of immunity by the defendants, including Linebarger, by breach of contract and waiver by conduct. These grounds for waiver of immunity are not addressed in Ross's appellate brief, and are therefore waived for failure to brief. See TEX. R.APP. P. 38.1(i).
We overrule Ross's first issue.
Evidentiary Rulings
In her second and third issues, Ross complains about the evidentiary rulings of the trial court. Ross filed a motion to strike and various objections to portions of the evidence that Linebarger attached to its plea to the jurisdiction, motion for summary judgment, and motion to sever. The trial court denied the motion to strike and overruled all of the objections.
To obtain reversal of a judgment based upon the improper admission of evidence, Ross must show that the trial court committed error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See TEX.R.APP. P. 44.1(a). Error based on the admission of evidence is generally not reversible unless the appellant can demonstrate that the judgment turns on the particular evidence excluded or admitted. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
Ross cannot demonstrate that the trial court's judgment turned on any particular evidence admitted by the trial court. As we have already discussed, the facts as alleged in her own pleadings are sufficient to support the trial court's determination that all of her claims against Linebarger are barred by immunity. Thus, any extraneous evidence attached to Linebarger's plea to the jurisdiction, motion for summary judgment, and motion to sever is irrelevant to the disposition of this case. See id.
We overrule Ross's second and third issues.
Conclusion
We affirm the order of the trial court granting the plea to the jurisdiction of appellees Linebarger, Goggan, Blair Sampson, LLP, Mandy Oyugi, Damon D. Edwards, and Maris A. Blair.