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.