Zoning amendment was not retroactive and property owner had no vested interest in perpetual use of his property for a specific purpose says Dallas Court of Appeals


Hinga Mbogo, et al. v. City of Dallas, et al. 05-17-00879-CV (Tex. App. – Dallas, June 19, 2018)

This is an appeal from an order granting the City Defendants’ plea to the jurisdiction in a constitutional challenge to zoning laws. The Dallas Court of Appeals affirmed the granting of the plea.

Hinga leased land and opened a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the City’s zoning ordinances allowed automobile-related businesses on Ross Avenue. After performing a study which found automobile-repair shops were a concern in the area based on the connected roads and services in the area, the City amended its zoning ordinance in 1988 prohibiting such uses. At that time, Hinga was fully aware that continuing his business became a “nonconforming use.” In 1991, Hinga purchased the property, expanded and upgraded knowing the property was nonconforming. In 2005 the City again amended the zoning ordinance and codified specific provisions related to non-conforming uses and provided deadlines. A property owner could appeal to the board of adjustment to extend deadlines to comply with the requirements. The BOA gave Hinga a new compliance date of April 13, 2013. Hinga then received a zoning change and SUP which expired in 2015. Hinga applied for a new SUP in February 2016, which was denied. The City filed suit seeking a permanent injunction to prevent operations and sought fines of $1,000 per day. Hinga counterclaimed and brought in various City officials. The City defendants filed a plea to the jurisdiction, which was granted. Hinga appealed.

Hinga argues the City’s ordinances, as applied to him, are unconstitutionally retroactive. A retroactive law is one that extends to matters that occurred in the past. Hinga asserted in 2005 and 2013 he had no notice the City would at some point make his use illegal. However, a law is not retroactive because it upsets expectations based in prior law.  Further, there are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses. In 2005 the City’s ordinance change allowed the owner of a nonconforming use to apply for a later compliance date if the owner would not be able to recover his investment in the use by the designated conformance date. The ordinance did not change any use but rather, it prospectively altered a property owner’s future use of the property. The 2013 ordinance likewise set a deadline for when it expired. As a result, the ordinances are not retroactive. Additionally, the court noted not all retroactive laws are unconstitutional. Here, any interest that Hinga had in the use of his property is not “firmly vested.” There is no bright-line rule and, generally speaking, an individual has no protected property interest in the continued use of his property for a particular purpose. The process provided likewise did not deprive Hinga of due process or single him out in any respect. The City allowed Hinga to run a business from 1991 through 2015 as either a nonconforming use or under a SUP; however, his use became illegal once his SUP expired. Hinga’s position under his takings argument appears to be that any restriction on his desired use of the property results in unconstitutional damage or destruction to his property. That is simply not the case as he had no vested right to perpetual, guaranteed use of his property in a specific way. As a result the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justice Bridges, Justice Myers and Justice Schenck. Memorandum Opinion by Justice Bridges. The docket page with attorney information can be found here.

Trial court had jurisdiction to determine if certain jobs should be classified as civil service, but not to award backpay


City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-17-00120-CV (Tex. App. Amarillo — March 21, 2018)

This is a civil service lawsuit where the Amarillo Court of Appeals reversed-in-part the denial of the City’s plea to the jurisdiction.

In Amarillo, firefighter positions have civil service protection and firefighters are contained within the Fire Supersession Department. However, positions in the Amarillo Fire Marshall’s Office (“FMO”) have traditionally been treated outside the protection. Nurek and Stennett were the highest scoring individuals on the promotional exams for positions of an Investigator I (equivalent rank of lieutenant) and Investigator II (equivalent rank of captain) within the FMO. When they were not offered the positions, they sued to declare the positions subject to civil service protection (and therefore eligible for placement via promotional exam). They also sought instatement in the positions and the backpay. The City and the officials sued, filed a plea to the jurisdiction which was denied. They appealed.

Immunity bars a declaratory judgment action seeking a declaration of the government’s liability for money damages.  However, that only addresses the Plaintiffs’ claim for backpay. The court held jurisdiction exists for the trial court to examine the City’s failure to classify firefighter positions within the FMO as civil service positions.  Under §180.006 of the Texas Local Government Code, immunity is waived “for claims to recover monetary benefits that are authorized by a provision of…” the Act. However, the claims asserted do not specify the sections which would authorize the payment in the Plaintiffs’ pleadings. “While appellees may prove to be right regarding appellants’ erroneous classification of FMO positions outside of the civil service, it is clear that appellees have not affirmatively pled facts demonstrating that their claims for monetary benefits are authorized by a provision of the Civil Service Act.”  Further, the pleadings do not differentiate between acts of the City and any alleged ultra vires acts of individual officials. Nothing indicates where the City Manager is responsible for civil service job classification. The failure to allege enough jurisdictional facts to demonstrate the trial court’s jurisdiction gives rise to a right to amend the pleadings unless the jurisdictional defect may not be cured by repleading. As a result, part of the plea should have been granted and part was proper to deny, but amended pleadings should be ordered.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Parker. Opinion by Judge Parker. The attorneys listed for the City Defendants are William M. McKamie, Bettye Lynn and Bryan McWilliams.  The attorney listed for the Plaintiffs is Matt Bachop

State immune from suit asserting failure to follow forfeiture procedures


The State of Texas v. Antonio Menchaca Jr. and Perla Nevarez 13-16-00602-CV (Tex. App– Corpus Christi February 15, 2018)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the 13th Court of Appeals reversed the denial and rendered in favor of the State.

A Cameron County District Attorney’s Office investigator sent notices to two banks that it was investigating potential money laundering by Menchaca  so the banks froze his accounts. Later, the State filed a civil forfeiture action against Menchaca seeking to seize one of Menchaca’s bank accounts. Menchaca subsequently answered and counterclaimed for declaratory judgment relief. Prior to answering Menchaca’s counterclaim, the State nonsuited its civil forfeiture action. The State then answered Menchaca’s counterclaim and filed a plea to the jurisdiction which the trial court denied. The State appealed.

Menchaca actually seeks ultra vires declaratory relief against the State of Texas for failing to comply with the law related to civil forfeitures. However, these types of suits cannot be brought against the State because the State retains its immunity. They must be brought against officials. “Menchaca’s action is defeated by sovereign immunity.”

If you would like to read this opinion click here. Panel consists of Justice Contreras, Benavides and Longoria. Justice Benavides delivered the opinion of the court. The attorney listed for Nevarez is Hon. Eduardo Lucio and Hon. Dennis Sanchez. The attorney listed for Menchaca is Hon. Dennis Sanchez and Hon. Eduardo Lucio. The attorney listed for The State of Texas is Hon. Luis V. Saenz, Hon. Matthew Kendall and Hon. Lena Chaisson-Munoz.

City did not act in bad faith under PIA in cost estimate calculation; City established it produced all records discovered


Mark Rines v. City of Carrollton 05-15-01321-CV (Tex. App—Dallas, February 13, 2018)

This is a Texas Public Information Act (“PIA”) case where the Dallas Court of Appeals affirmed the trial courts order dismissing the Requestor’s lawsuit. [Comment: this case is a rare one which also deals with cost estimates and allegations of overcharging.]

Rines, the Requestor, filed a PIA request for the civil service files of fourteen specified police officers. The City requested an Attorney General (“AG”) opinion for some documents, and issued a cost estimate letter for the remainder. After production of the uncontested documents, the City refunded some of the costs paid bythe Requestor. After receipt of the AG opinions, Rines filed suit asserting the City acted in bad faith in providing a cost estimate letter and that the City did not comply with his request. The City filed a plea to the jurisdiction which included an evidentiary hearing with testimony. The trial court granted the City’s plea and issued findings of fact and conclusions of law. Rines appealed.

The City’s testimony included how specific City employees conducted searches for records and the results. The City established it produce all records it located which were not contested under the AG opinion request. Rines asserts documents still exist and are missing which must be produced. He also objected to the testimony of record officials who did not have personal knowledge of the records being searched. However, the testimony established the record retention individuals’ job duties entailed custodial functions of the records. Further, Rine’s objection during the hearing was not ruled upon, so provides the appeals court nothing to review. In general, the City’s jurisdictional evidence demonstrates it searched for the requested information, officially requested responsive documents from relevant individuals, and produced to appellant all responsive information it was able to locate and obtain. Rines produced no evidence as to what was missing or that it was within the City’s records. The City conclusively established it complied with release under the Act.  Rines further did not provide evidence the City’s initial computation for the cost estimate was inaccurate based on the information available at the time. He provided no evidence of how the computation occurred and what was considered. After release, the City refunded monies based on the actual numbers released, but such factored in the non-release of information discovered but subject to the AG opinion.  Nothing indicates the City did not act in good faith in its initial calculation. Simply because the end cost is different does not equate to bad faith.

If you would like to read this opinion click here. Panel consists of Justices Lang, Brown and Whitehill. Justice Lang delivered the opinion of the court. Mark Rines appeared pro se. The attorneys listed for the City are Darrell G-M Noga and Christopher Klement.

Dallas Court of Appeals disagrees with El Paso Court of Appeals and holds civil service commission dismissal of grievance is still subject to appeal to district court


Rodney D. Bailey v. Dallas County, et al.,  05-16-00789-CV (Tex. App. – Dallas, December 21, 2017)

This is a county civil service case where the Dallas Court of Appeals affirmed-in-part and reversed-in-part the County Defendants’ plea to the jurisdiction filed in a district court case challenging his termination.

Bailey was a Dallas County Deputy Sheriff who was indicted for sexual assault and suspended from active duty.  Bailey timely filed a grievance challenging his termination.  Before the Civil Service Commission (“Commission”) held a hearing, the County dismissed the charges against Bailey.  Once the hearing was set, the County requested that the Commissioners dismiss Bailey’s grievance because he did not request a hearing within thirty days of the dismissal of the indictment, which the County asserted was required by §5.02(2) of the Dallas County Sheriff’s Department Civil Service Rules.  The Commission granted the motion. Bailey then filed suit in district court under §158.037 of the Texas Local Government Code, which allows for an appeal from a  Commission order removing him or demoting him. He also brought declaratory judgment claims asserting the Commission’s rules were void and the Commission acted in an ultra vires manner.  The County Defendants filed a plea to the jurisdiction, which the trial court granted. Bailey appealed.

The County Defendants asserted the Commission’s order did not demote or remove him but was simply a dismissal of the appeal. However, this has the effect of leaving the Sheriff’s removal in place. The court noted County of El Paso v. Zapata, 338 S.W.3d 78 (Tex. App.—El Paso 2011, no pet.) expressly supported the County Defendants’ position. However, the court disagreed with the El Paso Court of Appeals, thereby causing a split in the districts. The Commission’s dismissal supported the Sheriff’s removal and therefore §158.037 was applicable. Next, the court analyzed the UDJA claims. Ultra vires claims under the UDJA are prospective only. Bailey clearly is seeking retrospective relief under the UDJA, which is not permitted. Bailey’s request for a prospective hearing would require the retrospective setting aside of the prior order of dismissal. Bailey’s pleadings also do not actually seek the invalidity of a Commission rule or state statute. He asserts the Commission injected provisions which are not contained within the state statutes. These are complaints about the applicability and construction of the sections, not that they are invalid.  Bailey sought a writ of mandamus ordering the County to provide him a Commission hearing. The court disagreed the Commission had the discretion to provide Bailey a hearing. Officials have no discretion to misapply the law. As a result, the court had jurisdiction to hear Bailey’s mandamus claim to a hearing, even though it has a retrospective effect. Finally, the County asserted the Commission was not a separate jural entity subject to suit. Whether the Commission has a separate and distinct legal existence is a jurisdictional fact question. The County has the burden in a plea.  It presented no evidence the Commission does not have a separate and distinct legal existence.  The court, in a footnote, stated it expressed no opinion as to what the ultimate result of the analysis would be once evidence is submitted, only that the trial court had jurisdiction to consider the issue.

If you would like to read this opinion click here. Panel includes Justice Bridges, Justice Myers and Justice Schenck.  Memorandum Opinion by Justice Myers. The attorney listed for Bailey is Lance Franklin Wyatt.  The attorney listed for the County Defendants is Tammy Jean Ardolf.

El Paso Court of Appeals holds non-appearance jurors failed to show waiver of immunity in contempt/fee challenge case but should be allowed to amend.


Joshua Luttrell, et al v. El Paso County, et al., 08-16-00090-CV (Tex. App. – El Paso, December 20, 2017).

There is no way to categorize this case in a single sentence. In the thirty-nine page opinion, the El Paso Court of Appeals addressed a challenge to El Paso County’s use of a special assignment judge who would issue and handle all contempt proceedings when a juror would fail to appear for duty. Long opinion means long summary — sorry.  The Court held the County retained immunity based on the pleadings, but the Plaintiff should be afforded the opportunity to amend. The case was remanded.  For government attorneys or those suing governments, this opinion provides a good basis and starting point for various immunity issues and Uniform Declaratory Judgment Act (“UDJA”) claims.

Appellants filed a lawsuit on behalf of themselves and others, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction and that Judge Woodard imposed court costs and fees in an “illegal” manner.  Apparently, when a juror failed to respond to a jury summons in a particular court in El Paso County, that court would either “refer” or “transfer” the matter to Judge Woodard for the purpose of allowing him to conduct contempt proceedings against the recalcitrant juror.  The collective jurors sought to have their court costs and fees removed and the process stopped.  The case has many implications and court performed various analyses of statutes discussing the power of the courts and the counties. By the time the case hit the Court of Appeals, Judge Woodard had been dismissed under judicial immunity and the only issue was the immunity of the County. The County filed a plea to the jurisdiction, which the trial court granted. The collective jurors appealed.

The court began with a history of governmental immunity and transitioned into immunity in declaratory judgment proceedings. The court cited various cases noting the UDJA only waives immunity if the validity of a statute (or ordinance) is in play. The Appellants failed to identify a statute being challenged. Their pleadings “reveal that the true nature of their claims center on their belief that the actions of Judge Woodard and/or the County violated existing law, i.e., that they were held in contempt in violation of their due process rights, and that they were accessed illegal court costs and fees…”  Such claims cannot be brought under the UDJA. Additionally, the UDJA may not typically be used to collaterally attack, modify, or interpret a prior court judgment. The contempt proceedings were declared to be criminal in nature, not civil. Civil courts may only exercise “equity jurisdiction” in cases involving criminal proceedings in a “narrow” set of circumstances, which are not present here. The UDJA is the wrong vehicle for making a challenge to the validity of a criminal contempt judgment.   There is a line of cases stating the UDJA can be used to collaterally attack void judgments. The proper method to collaterally attack a criminal contempt judgment as being void is through either a petition for a writ of habeas corpus when the contemnor has been subjected to jail time, or a petition for a writ of mandamus when, as here, the contemnor is subjected only to a fine. Such are exclusive mechanisms.

Appellants also sought the recovery of the fines, fees and costs, which they believe Judge Woodard wrongfully imposed.  However, Appellants’ request for a “refund” cannot be brought in a UDJA proceeding in the absence of legislative permission. When fees are paid in the context of a judicial proceeding, the aggrieved party may challenge the imposition of those fees (illegal or otherwise) in the context of those proceedings, thus satisfying the requirements of due process.  When a party pays an illegal tax or fee “under duress” in an administrative matter they may challenge it, but these were judicial proceedings. In a judicial proceeding, once a defendant pays the fee, it is voluntarily given. To avoid paying the fee, the defendant must challenge it in the proceedings or utilize another system established for the challenge.  Appellants had other means of challenging the validity of the costs and fees imposed on them. They could have challenged it in the proceedings, filed a mandamus or brought claims under Article 103.008 of the Texas Code of Criminal Procedure, which provides a separate statutory remedy to correct erroneous or unsupportable court costs.  They failed to do so.  As to Appellants attempted ultra vires claim, they only named the County. Such claims must be brought against an official.    Additionally, claims of judicial court action versus county administrative action, falls outside the scope of any takings claims under the Texas Constitution. As to the Appellants §1983 claims, a judge has judicial immunity from a lawsuit brought under §1983, and therefore cannot be named as the “person” who violated the plaintiff’s constitutional rights, when the lawsuit is based on the judge’s judicial actions.  A county may only be held liable in a §1983 case if the plaintiffs are able to demonstrate that the county had an “official policy or custom” that caused them to be subjected to a denial of a constitutional right.  Appellants have not alleged in their current pleadings that the County had any policy or custom that deprived them of their federal constitutional rights and only allege Judge Woodard acted without authority. There is nothing in the pleadings or the record to suggest that Judge Woodard was executing any county policies and, to the contrary, everything points to him acting in his judicial capacity (for which he is immune from suit).  Finally, the  court noted that while the panel “expresses no opinion” as to whether the Appellants can successfully amend, they recognized the should be given the opportunity. The court ends by stating “[w]e do caution Appellants, however, that any amendment to their pleadings must focus on the liability of the County as the only remaining party in the proceeding, with the recognition that Judge Woodard is no longer a party to the proceedings, and expressly explain what actions the County took that would render them liable to Appellants.”   The case was then remanded.

If you would like to read this opinion click here. Panel includes Chief Justice McClure, Justice Rodriguez and Senior Judge Larsen. Opinion by Justice Rodriguez.  The docket page with attorney information is found here.

Plaintiff failed to timely appeal administrative order so court has no jurisdiction to hear his constitutional claims


Jose A. Perez v. Physician Assistant Board and Margaret K Bentley, In her Individual and Official Capacities 03-16-00732-CV (Tex.App—- Austin, Texas October 31, 2017)

This is an appeal from the granting of a plea to the jurisdiction where the Austin Court of Appeals affirmed the order.

Perez was a physician’s assistant whose license was revoked by the Physician Assistant Board (“PAB”). Perez sued for a variety of convoluted claims (constitutional and common law) which the Austin Court of Appeals held equated to claims challenging the revocation. At the administrative level, Perez failed to appear at the contested case hearing after receiving notice. The ALJ issued an order against Perez. The PAB found the order meritorious and deemed the assertions in the order as true. Perez sued the PAB and its director, Bentley. The PAB defendants filed a plea to the jurisdiction which the trial court granted. Perez appealed.

Perez listed 36 issues on appeal, but the court considered only the uncontested facts asserted in the record and Perez’ pleadings. The substance of Perez’s pleaded claims against the Board—that the Board violated the United States and Texas constitutions and the APA—challenges and seeks relief from the 2014 revocation order. However, there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.  Perez had the potential for appeal, but a petition seeking judicial review in a contested case must be filed “not later than the 30th day after the date the decision. The record conclusively established Perez did not bring suit until 2016, well after the thirty-day deadline.  Further, the order is not subject to collateral attack as the PAB was acting within its authority. Factually, the substance of Perez’s claims against Bentley were limited to claims against Bentley in her official capacity, even though he asserts they are individual claims. Given that the 2014 order is final and not subject to judicial review, Bentley cannot be acting ultra vires and no prospective relief is available at this juncture. As a result, the trial court properly granted the plea.

If you want to read this opinion, click here. The panel consists of Justice Puryear Justices, Pemberton, and Goodwin. Justice Melissa Goodwin delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

Texarkana Court of Appeals holds the vote and decision not to vote on District business cannot be an ultra vires claim


Kilgore Independent School District, et al. v. Darlene Axberg, John Claude Axberg, Sheila Anderson, and the State of Texas 06-17-00060-CV (Tex.App— Texarkana, October 12, 2017)

This is an appeal from the denial of a plea to the jurisdiction where property owners brought ultra vires and invalidity claims arising from the school district’s repeal of a homestead exemption. The Texarkana Court of Appeals reversed-in-part and affirmed-in-part.

Kilgore Independent School District (“KISD”) voted to repeal KISD’s local option homestead exemption (“LOHE”). That repeal came just fourteen days after Governor Greg Abbott signed Senate Bill No. 1 (“SB1”), which could potentially increase the statewide homestead exemption and forbid a local taxing authority from repealing existing LOHEs. SB1 raised the level of property values on which a school district is not allowed to tax from the first $15,000 to the first $25,000. Property owners sued alleging KISD’s repeal was invalid because it violated state law, that taxes subject to the LOHE had been illegally collected, and that KISD officials committed various ultra vires actions. KISD and the officials filed a plea to the jurisdiction, which the trial court denied. The KISD Defendants appealed.

It is not an ultra vires act for an official to make an erroneous decision while staying within its authority.  When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous. It is only when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.  If the conduct is based on the misinterpretation of the boundaries of his authority, it can give rise to an ultra vires claim.  As to the superintendent of schools, the Plaintiff failed to plead and support an ultra vires claim.  The superintendent could not and did not vote on the repeal and was improperly included merely because she was the head of the district.  Additionally, the Plaintiff failed to plead proper ultra vires claims against the Trustees. The vote or nonvote of an individual Trustee, by definition, cannot be an ultra vires act since their entire authority is to vote on district business.  But the Board is the body which makes the determination and it is the collective decision which is the act of KISD. Without the authorization of the Board, a single Trustee lacks the authority to repeal or reinstate the LOHE. The act of voting, or refraining from voting, by the Trustees as a collective body, was not outside the Trustee’s authority in this case.  However, as to KISD, the court held it was not immune from the Plaintiff’s suit. Sovereign immunity does not apply when a suit challenges the constitutionality or validity of a statute or other government enactment and seeks only equitable and/or injunctive relief.  And while a party cannot circumvent immunity by disguising a claim for money damages as a declaratory judgment action, immunity will not defeat a claim seeking the refund of illegally collected taxes or fees paid under duress. Further, the Plaintiff was not required to exhaust administrative remedies under the Tax Code because all questions in the lawsuit are questions of law. Finally, the Plaintiff was not barred by an election of remedies because the ultra vires claims against the officials and the claims against KISD are distinguishable and separate from one another.  As a result, the plea should have been granted as to the officials and denied as to KISD.

If you would like to read this opinion click here. The panel consists of Chief Justice III Morris and Justices Moseley and Burgess. Chief Justice III Morriss delivered the opinion of the court.  To see the attorneys listed for the Appellant and Appellee’s click here .

District immune from suit challenging the validity of district actions, but Plaintiff entitled to replead as ultra vires claim


 Bexar-Medina-Atascosa Counties Water Control and Improvement District No. 1 (Cross-Appellee) v. Bandera County River Authority and Groundwater District (Cross-Appellant) 04-16-00536-CV (Tex.App— San Antonio, September 13, 2017)

This is a declaratory judgment case between two local governmental entities. The San Antonio Court of Appeals held no jurisdiction was present in the pleadings but remanded to allow Appellant the opportunity to amend as an ultra vires case.

Bandera County River Authority and Groundwater District (“Bandera Water District”) sued Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1’s (“BMA”) seeking a declaratory judgment that BMA has no jurisdiction in Bandera County to perform water well and surface water regulatory acts such as well inspections, well investigations, and enforcement of water regulations. BMA filed a plea to the jurisdiction which the trial court denied. The parties filed competing summary judgment motions. The trial court granted Bandera Water District’s motion and denied BMA’s motion. After a hearing on attorney’s fees, both parties appealed.

BMA asserts the trial court lacks declaratory judgment jurisdiction since Bandera Water District is not challenging the validity of a law. Bandera Water District responds that it challenges “the validity of [BMA’s] exercise of its authority.”  Citing to Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011), the court held immunity is not waived unless the validity of an ordinance or rule is being challenged. Bandera Water District challenges BMA’s ability “to do” specific acts, not the validity of an ordinance or statute. “It is not enough for a litigant to challenge the actions of a governmental entity under a statute, ordinance, contract, or franchise; the validity of the statute, ordinance, contract, or franchise itself must be challenged for governmental immunity to be waived.”  So no jurisdiction exists against the entity of BMA. However, Bandara Water District requested the ability to amend its pleadings to allege an ultra vires claim. The court felt that was the proper mechanism for a suit challenging the legal authority to act so granted the remand.

If you would like to read this opinion click here. The panel consists of Chief Justice Marion, Justice Angelini, and Justice Alvarez. Chief Justice Marion delivered the opinion of the court. Attorneys listed for the Appellant are Peter B. Gostomski, Shawn Kevin Fitzpatrick, and Edward T. Hecker. Attorneys listed for the Appellee are Gregory M. Ellis, Mark N. Osborn and Andrew S. Miller.


Town immune from claims to invalidate vote where no ordinance was actually adopted says Fort Worth Court of Appeals


Peter Schmitz, et al  v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, August 31, 2017).

This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners. The Fort Worth Court of Appeals affirmed the dismissal of the Town. However, the court reversed the dismissal of the other property owner.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations.   At this time the Town voted to amend the zoning code and issued a SUP to the Church, but did not pass an ordinance. The Town (and Church) filed a plea to the jurisdiction, which the trial court granted. The Plaintiffs appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity. The proper defendant in an ultra vires action is the official who allegedly acted without authority, not the governmental entity itself. The Plaintiffs did not sue any officials. The UDJA waives governmental immunity against claims that an ordinance, or an amendment to an ordinance, is invalid.  Plaintiffs claim they are challenging the amended ordinance so have jurisdiction. However, the record shows Ponder did not amend its zoning ordinance, it merely voted on motions to change the zoning classification. Open motions and votes are not ordinances and here the zoning ordinance was not changed. The Town’s vote to grant an SUP was not made by ordinance but did not have to be. Plaintiffs, therefore, are not able to challenge a non-existent ordinance and cannot show a waiver of immunity. The court also held that since the Texas Open Meetings Act and notice allegations also stem from the challenge to a non-existent ordinance, they likewise were properly dismissed. The Plaintiffs next assert the Town waived immunity by its own ordinance.  However, the court held that even if the Town had the authority to waive its own immunity, the language in their ordinance is not a clear and unambiguous waiver of immunity. It authorized a property owner to sue an offending property owner, not the Town. As to the §1983 analysis, claims based upon a government entity’s refusal or failure to enforce its own regulations do not equate to such claims.  The court held repleading would not change the lack of jurisdiction. The Town’s plea was properly granted.  The court errored by dismissing the Church.

If you would like to read the opinion click here. Panel includes Chief Justice Livingston, Justice Gabriel, and Justice Pittman.  The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.

Interlocutory appeal mooted by Plaintiff’s non-suit, even though Plaintiff refiled similar suit directly after dismissal


City of Sealy, et al.  v. Town Park Center, 01-17-00127-CV (Tex. App. – Houston [1st Dist.], August 24, 2017).

This is an opinion where the court held the appeal is moot, but where the City asserted mootness was not applicable due to a refiling.

Town Park Center sued the City of Sealy in the first lawsuit, but such claims ultimately were dismissed, without prejudice. Town Park then filed a second lawsuit against the City and the City’s mayor, manager, and engineer. While the claims are not in this opinion, the appeal records indicate the claims were for breach of contract, declaratory relief, and injunctive relief regarding an economic development agreement (the same agreement in the first lawsuit).  The City defendants filed a plea to the jurisdiction. The trial court granted the plea as to the City, but denied as to the officials. The mayor and city manager filed an interlocutory appeal staying all lower court proceedings, but Town Park requested it be lifted in order to non-suit. After a non-suit, without prejudice, was filed, Town Park filed a third lawsuit against the City, mayor, city manager, and finance director regarding the same agreement. Town Park then filed a motion in this appeal to declare the appeal moot. The City defendants opposed the dismissal arguing the claims were not moot given the live controversy upon which Town Park filed its third suit.

The City asserted the order granting the plea as to the City in the second lawsuit, which Town Park did not appeal, precludes joining the City in the third lawsuit. However, Town Park was not required to appeal the interlocutory order dismissing the City in the second lawsuit (the current appeal) since it had the option to wait until a final judgment was entered. Utilizing this process does not extend the appellant court’s jurisdiction to hear a moot claim.  Plaintiffs have a general right to nonsuit their claims even if interlocutory appeals are pending. As a result, the interlocutory appeal in the second lawsuit has become moot and is dismissed.  [Comment: the court noted in footnote #2, that the final judgment for the second lawsuit may become final due to the non-suit and such is a dismissal with prejudice for claims dismissed prior to the non-suit. However, that argument was not before them and is properly raised in the third lawsuit as to the City.]

If you would like to read this opinion click here.  Panel includes Justice Higley, Justice Bland and Justice Brown. Per curiam. The attorneys listed for the City are Pannal Alan Sanders and William S. Helfand.  The attorneys listed for Town Park Center are Andy Taylor and Gregg Alan Clements,



Inmate’s ultra vires suit against DA, courts, and county dismissed due to claim for retrospective relief


Smith v. District Attorney’s Office for Smith County, et al.  03-16-00828-CV (Tex. App. – Austin, August 23, 2017)

This is an inmate declaratory judgment case relating to the inmate’s conviction in which the Austin Court of Appeals affirmed the dismissal of the case by a plea to the jurisdiction.

Plaintiff Smith sued Smith County and Smith DA, who were represented by Mr. Phillip Smith.  For ease of reference, I’ll refer to Plaintiff, County, and DA. The Plaintiff was convicted of robbery in 2000. He brought suit for declaratory and injunctive relief in order to “redress the deprivation under color of state law of rights secured by the due course of law of the land in conjunction with the Constitution of the United States.” The DA and County filed a plea to the jurisdiction which the trial court granted. Plaintiff appealed.

Plaintiff named the District Offices (along with the District Courts) as defendants; however, his claims concern actions taken by certain unnamed persons employed by these offices in the performance of their official duties. Since Plaintiff named the offices, his claims implicate sovereign immunity. The Plaintiff claims “a private party may seek declaratory relief against a state entity or official who allegedly acted without legal or statutory authority.” This Court rejected this same argument when considering Plaintiff’s 3 prior cases against the District Courts and District Attorney.  Compelling an official to follow the law is an ultra vires action and immunity is not implicated. However, such claims are available for prospective relief only. Plaintiff seeks retrospective relief regarding his conviction. As a result, the trial court did not err in granting the plea.

If you would like to read this opinion click here.  Panel includes Justice Puryear, Justice Field and Justice Bourland. Memorandum Opinion by Justice Field. The attorney for the DA’s office is listed as Phillip J. Smith. Mr. Trent Smith appeared pro se.

14th Court of Appeals holds taxpayers have standing to challenge ballot propositions and bring ultra vires claims


Slvester Turner,  in his official capacity as mayor of the City of Houston, and the City of Houston v. Carroll G. Robinson, Bruce R. Hotze and Jefferey N. Daily, No.14-16-00393-CV ( Houston [ 14th Dist.] August 17, 2017)

The Fourteenth Court of Appeals in Houston determined the Plaintiffs had taxpayer standing to challenge two propositions filed in the 2004 elections and for ultra vires claims against the Mayor’s office.

This opinion is one in a long series of opinions and cases involving the same or similar parties. Plaintiffs sued the City of Houston and the Mayor, in his official capacity, for declaratory and injunctive relief (including ultra vires claims) involving Prop 1 (limiting annual increases in property taxes and utility rates) and Prop 1 (amending the City Charter and requiring voter approval for increase which go beyond inflation and population rates).  In the 2004 election, both propositions passed. After the election, for two independent reasons, the City determined Prop. 1 is legally binding and Prop. 2 would not be enforced. Prop. 1 had a supremecy clause over any other propositions if it received more popular votes.  Further, the Charter stated any proposition which receives the higher votes prevails. Various suits followed resulting in several appellate opinions already. In this matter, the Plaintiffs filed actions regarding the validity of Prop. 2 and the City’s future compliance with both Prop. 1 and Prop. 2.   The City filed a plea to the jurisdiction which was denied. The City appealed.

Standing is a constitutional prerequisite to maintaining suit.  Taxpayer standing requires (1) that the plaintiff is a taxpayer; and (2) that public funds are being expended on the allegedly illegal activity. Plaintiffs did not sue to recoup funds but to prevent future expenditures on alleged unauthorized activities. As a result, they have taxpayer standing. The Plaintiffs do not allege the Mayor failed to perform a ministerial act, but instead assert he acted without legal authority. Such is a proper ultra vires claim. And while the Plaintiffs focus on the legal authority of the propositions, their pleadings also seek a declaration as to their validity. As a result, they are proper for declaratory judgment.

Justice Busby’s concurrence focused on  “a clash among fundamental principles of government.” Specifically, he notes immunity/standing vs requiring officials to follow the rule of law.  He writes separately to “to explain how the structural principles of government at stake” intertwine because immunity and standing are notoriously complex.  He does a good job of explaining the competing interests and ultimately agrees that the taxpayers have standing in order to require a governmental official follow the law.

If you would like to read this opinion click here. The panel includes Justice Busby, Justice Donovan, and Justice Brown. Justice Donovan delivered the opinion of the court. To see Justice Busby’s concurring opinion click here. Attorney listed for the City is Ms. Kathleen Hopkins Alsina. Attorneys listed for Ms. Robinson, Mr. Hotze and Mr. Daily are Andy Taylor and Amanda Eileen Staine Peterson.

Dallas Court of Appeals dismisses referendum/mandamus claims against council but allows mandamus claims to go forward to trial against City Secretary


City of Plano, Texas, et al. v. Elizabeth Carruth, et al.  05-16-00573-CV (Tex. App— Dallas, February 23, 2017)

This is a referendum case where the Dallas Court of Appeals dismissed all but one of the Plaintiffs’ claims under a plea to the jurisdiction.  It held the trial court had jurisdiction to consider the merits of the remaining mandamus/ultra-vires claim against the City Secretary.

The City adopted a comprehensive plan and zoning ordinance. The City Charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance. Citizens submitted a referendum petition to change the ordinance adopting a change in the comprehensive plan to the City Secretary. The City Secretary did not act on the referendum petition.  The City took the position that zoning and comprehensive plans have been removed from the referendum scope by state law. So no action is required.  The citizens filed a writ of mandamus seeking a court order directing the City Secretary to present the petition to the City Council and directing the City Council to reconsider the Plan and submit it to popular vote if the council did not entirely repeal it. In addition, they sought a declaratory judgment that pending approval by the voters in a referendum the Plan is suspended. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The Court of Appeals first held the Plaintiffs properly plead jurisdiction against the City Secretary. The court held there is a difference between the merits of whether mandamus should be issued with whether the trial court has jurisdiction to hear those merits. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before [the court]. “ Based on the language in the pleadings, the trial court has jurisdiction to hear the merits of the mandamus claim. However, no mandamus can be issued against the remaining officials since the City Secretary has not submitted the petition to the Council. Their duty is not triggered unless and until the petition is submitted, therefore the claims are not ripe. Finally, the court dismissed the declaratory judgment claims noting the charter does not provide that an ordinance is suspended immediately upon the filing of a referendum petition.  The Charter is clear that a suspension applies only upon the subject being submitted to popular vote. Until the Council is presented with the petition and acts on it, any declaration about the effect of that action would be advisory. The trial court’s order was affirmed in part and reversed in part.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers, Justice Stoddart, and Retired Justice O’Neill. Justice Stoddart delivered the opinion of the court. Attorneys for the Appellants: Robert J. Davis, William A. Taylor, and Timothy Dunn.  Attorney for the Appellees: Jack George Ternan.

State immune from suit for mineral interest relating back to Spanish land grant


Galan Family Trust v. State of Texas, et al, 03-15-00816-CV (Tex.App— Austin, February 24, 2017)

This is an inverse-condemnation/trespass-to-try-title case where the Austin Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

The Galan Family Trust (“Trust” or “Plaintiff”) sued the State of Texas for mineral interests the Trust asserts they own due to a 1767 Spanish land grant. A patent in favor of the Galan heirs was issued in 1852 by the Texas Legislature, but the patent was cancelled by the State of Texas in 1874. In this context, “patent” is an instrument by which the State conveys land to a private person. The State filed a plea to the jurisdiction and a Rule 91a motion to dismiss, asserting that the State is immune to trespass-to-try-title claims and, further, that the Trust’s claims are barred by limitations. The trial court dismissed the Trust’s suit and the Trust appealed.

The court first reaffirmed long-standing case law that governmental entities are immune from trespass-to-try-title claims. Additionally, while individual officials in their official capacities may not be immune from trespass-to-try-title claims, the Trust’s pleadings negate the right of possession.  This right is necessary to establish a trespass-to-try-title claim against an official. Once the State canceled the patent, the State became the titleholder. Further, the Trust did not sue for a takings claim until more than 140 years after the cancellation. This delay in filing far exceeds the ten-year limitations period established for takings claims. The State was only required to establish when the cause of action accrued to establish limitations, not to provide uncontroverted evidence of every element of the defense.  Given the elements for the statute of limitations defense are contained within the pleadings. And, when taken as true for purposes of the Rule 91a motion, the State established it is entitled to dismissal. The trial court’s order is affirmed.

If you would like to read this opinion click here. The Panel includes Chief Justice Rose, Justice Goodwin, and Justice Bourland. Chief Justice delivered the opinion of the court. To see the Representatives for the Appellant and Appellees click here.