NUMBER 13-18-00544-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CAMERON COUNTY REGIONAL MOBILITY AUTHORITY, Appellant,
v.
DAVID GARZA AND DIANE GARZA, Appellees.
On appeal from the 444th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa Memorandum Opinion by Justice Hinojosa
Appellees David and Diane Garza (the Garzas) sued appellant, the Cameron
County Regional Mobility Authority (CCRMA), asserting claims for inverse condemnation
and breach of contract. 1 CCRMA appeals the trial court’s order denying its plea to the
1 The Garzas also sued HNTB Corporation and Pete Sepulveda Jr., asserting various claims. jurisdiction. In two issues, CCRMA argues the trial court erred in denying its plea
because CCRMA is protected by governmental immunity from the Garzas’ claims. We
reverse, render in part, and remand in part for further proceedings.
I. BACKGROUND 2
The West Rail Relocation Project, a joint project between CCRMA and other
governmental and private entities, called for the relocation of railroad lines in Brownsville,
Texas and Matamoros, Mexico. The United States Army Corps of Engineers (the COE)
determined that the new lines would result in permanent impact to .39 acres of United
States waters, including the Resaca del Rancho Viejo 3 and adjacent wetlands. As a
prerequisite to the new construction, the COE required CCRMA to sponsor environmental
mitigation activities to offset the project’s environmental impact.
Due to the narrow, linear nature of the project, on-site mitigation efforts were not
viable. Therefore, CCRMA pursued off-site mitigation opportunities through its retained
engineer, HNTB Corporation (HNTB), and with the assistance of the Valley Land Fund
(the VLF), a non-profit organization. CCRMA proposed to conduct mitigation activities
on 1.17 acres of property owned by the Garzas, who were seeking to protect and
safeguard the wetland ecosystem on their property. The proposed mitigation site was
located within a portion of the Resaca del Rancho Viejo. The Garzas donated a
However, those parties are not before us in this appeal.
2 The following factual allegations are taken from the Garzas’ live pleading and the exhibits attached thereto.
3 “Resacas are former channels of the Rio Grande found in the southern half of Cameron County.”
Charles M. Robinson III, “RESACAS,” HANDBOOK OF TEX. ONLINE, http://www.tshaonline.org/handbook /online/articles/rbrnp (last visited Sept. 9, 2019). “They are naturally cut off from the river, having no inlet or outlet.” Id.
2 “Permanent Conservation Easement” for the site to the VLF.
The COE approved CCRMA’s mitigation plan and issued a permit authorizing
construction of the new rail line. The mitigation plan stated that representatives of the
COE, the VLF, and HNTB previously visited the site and “verified sufficient water
availability and the presence of invasive species to merit enhancement activities.” The
required “enhancement activities” consisted of the “removal of invasive [plant] species
and planting of desirable native wetland vegetation to supplement the existing wetland
vegetation.” The plan provided for the following “success criteria”:
A plant survival survey will be completed 3 months following the completion of planting activities. Planting will have been considered successful if 50% of the plantings have survived after 3 months. If the target of 50% survival is not reached, then the mitigation site will be replanted to the original density.
The success criteria for the mitigation site are as follows: 1) 75% or greater areal cover of desirable wetland vegetation with an indicator status of facultative (FAC) or wetter, and 2) less than 25% areal cover of invasive plant species. The above stated success criteria will be monitored and maintained through the 5-year monitoring period as well as at the end of the 5-year period.
Following the initial survival survey, the mitigation site will be monitored semi-annually for a minimum of 5 years, with monitoring visits conducted during the spring and fall seasons. . . . [CCRMA] will submit monitoring reports within 30 days of the monitoring visit to the [COE]. . . .
The mitigation requirement will be considered to be complete when the site has met the success criteria 5 years after the initial planting. Should mitigation be determined to be unsuccessful by [COE] personnel at the end of the monitoring period, [CCRMA] will be required to take necessary corrective measures, as approved by the [COE]. Once the corrective measures are completed, [CCRMA] will notify the [COE] and a determination will be made regarding success of the mitigation.
3 CCRMA contracted with HNTB to carry out the work detailed in the mitigation plan and to
prepare the required status reports.
In their petition, the Garzas allege they were third-party beneficiaries to the
mitigation plan and CCRMA breached the plan by ignoring and failing to perform the
required enhancement activities—the removal of invasive plant species and planting of
native vegetation. They claim CCRMA’s failure in this regard resulted in damage to the
mitigation site and adjoining property, including the killing of fish, destruction of wildlife
habitats, and damage to wetland vegetation. The Garzas further allege that CCRMA did
not comply with the plan’s reporting requirements. The Garzas claim that CCRMA’s
actions constituted a taking of their property without adequate compensation in violation
of the Texas Constitution. Specifically, the Garzas allege that CCRMA failed to perform
a number of actions which would have ensured the success of the mitigation project. 4
CCRMA filed a plea to the jurisdiction, 5 challenging whether the Garzas’ pleadings
demonstrated the trial court’s subject matter jurisdiction. In particular, CCRMA argued
that the Garzas did not establish a valid inverse condemnation or breach of contract claim;
therefore, CCRMA’s governmental immunity remained intact. The Garzas filed a
4 In particular, the Garzas allege that CCRMA took their property by failing to: perform due diligence with respect to selecting the site; perform or ensure the performance of adequate hydrology studies; perform or ensure the performance of adequate soil and water studies; secure a water/hydrology plan; provide water to the mitigation site; retain reputable and qualified contractors; properly monitor the actions taken by HNTB and the contractors; properly monitor the project; ensure proper removal of invasive species both within and outside the mitigation site; control the spreading of the invasive species; monitor the property outside the mitigation site to ensure that it was not damaged; and remedy the destruction and damage caused to the mitigation site when the mitigation plan was unsuccessful.
5 CCRMA filed a pleading entitled “Cameron County Regional Mobility Authority’s Second
Amended Plea to the Jurisdiction, Motion to Dismiss, Special Exceptions, and Original Answer.” Only the trial court’s denial of the plea to the jurisdiction is at issue in this appeal.
4 response, CCRMA a reply, and the Garzas a sur-reply. Following a hearing, the trial
court denied CCRMA’s plea to the jurisdiction. This interlocutory appeal followed. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action
without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject
matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). CCRMA’s plea to the jurisdiction is based
on governmental immunity. 6 Governmental immunity deprives a trial court of jurisdiction
over lawsuits in which the State’s political subdivisions have been sued, unless their
immunity from suit is waived by the Legislature. Id.; Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 636 (Tex. 2012). Therefore, governmental immunity is properly
asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225–26. Whether the trial
court has subject matter jurisdiction is a question of law we review de novo. Id. at 226.
It is the plaintiff’s burden to plead facts affirmatively demonstrating the trial court’s
subject matter jurisdiction. Id. When a plea to the jurisdiction challenges the pleadings,
we determine if the plaintiff has alleged facts that affirmatively demonstrate the court's
jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
6 Governmental immunity is a common law doctrine protecting governmental entities from suit,
similar to sovereign immunity. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011). While sovereign immunity protects the State and its various agencies from suit, governmental immunity protects the State’s political subdivisions from suit. Id. As a political subdivision of the state, CCRMA is generally protected from suit by governmental immunity. See TEX. TRANSP. CODE ANN. § 370.032(a).
5 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings liberally in favor of the
plaintiffs and look to the pleaders’ intent. Id. If the pleadings do not contain sufficient
facts to affirmatively demonstrate jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff
should be afforded the opportunity to amend. Id. at 226–27. If the pleadings
affirmatively negate jurisdiction, then the plea may be granted without affording the
plaintiff this opportunity. Id. at 227.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider the relevant evidence submitted by the parties to determine if a fact issue exists.
Id. A defendant challenging a jurisdictional fact must satisfy the same initial burden as
in a “traditional” summary judgment, and judgment is proper in such instance only if the
plaintiff cannot present controverting evidence raising a genuine issue of material fact.
Id. at 227–28.
CCRMA’s plea to the jurisdiction exclusively challenged whether the Garzas
pleaded facts affirmatively demonstrating the trial court’s subject-matter jurisdiction. The
plea was not supported by evidence. However, CCRMA raises various evidentiary-
based arguments for the first time on appeal. 7 While jurisdictional issues generally can
be raised sua sponte or for the first time on appeal, a defendant appealing the denial of
a plea to the jurisdiction may not urge an evidentiary challenge for the first time on appeal.
See Hendee v. Dewhurst, 228 S.W.3d 354, 375 (Tex. App.—Austin 2007, pet. denied)
7 For instance, CCRMA argues that the Garzas “failed to establish that any action taken by
[CCRMA] caused any taking or damage to the property,” citing evidence indicating that external factors caused the mitigation site to dry up.
6 (explaining that permitting a challenge to jurisdictional evidence to be raised for the first
time on appeal would circumvent the procedural safeguards established by Miranda).
We also observe that CCRMA’s evidentiary arguments cite primarily to the record
associated with its no-evidence motion for summary judgment and the response thereto,
which remain pending below. A trial court’s subject-matter jurisdiction cannot be
challenged in a no-evidence summary judgment motion because this practice improperly
shifts the evidentiary burden to the plaintiff to fully marshal their evidence simply to
establish jurisdiction. Thornton v. Ne. Harris Cty. Mun. Util. Dist. 1, 447 S.W.3d 23, 40
(Tex. App.—Houston [14th Dist.] 2014, pet. denied). Other record references relate to
filings which are not relevant to the jurisdictional challenge, such as an exhibit attached
to a response to a motion to exclude expert testimony. For these reasons, we limit our
review to the adequacy of the Garzas’ pleadings.
III. INVERSE CONDEMNATION
By its first issue, CCRMA argues that the Garzas’ pleadings do not establish a
cognizable inverse condemnation claim. As a result, CCRMA maintains that the Garzas’
pleadings fail to affirmatively demonstrate a waiver of its immunity from suit.
A. Applicable Law
Article I, § 17 of the Texas Constitution waives governmental immunity for valid
inverse condemnation claims. Gen. Servs. Comm’n v. Little–Tex Insulation Co., 39
S.W.3d 591, 598 (Tex. 2001); City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex. App.—
Dallas 2006, no pet.). Inverse condemnation occurs when property is taken for public
use without proper condemnation proceedings and the property owner attempts to
7 recover compensation for that taking. Blanton, 200 S.W.3d at 271 (citing City of Abilene
v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971)). An inverse condemnation may
occur when a governmental entity physically appropriates or invades the property, or
when it unreasonably interferes with the landowner’s right to use and enjoy the property,
such as by restricting access or denying a permit for development. See Westgate, Ltd.
v. State, 843 S.W.2d 448, 452 (Tex. 1992).
To properly assert an inverse-condemnation claim against a governmental entity,
a party must plead facts establishing the following elements: (1) the governmental entity
intentionally performed an act in the exercise of its lawful authority; (2) that resulted in the
taking, damaging, or destruction of the party’s property; (3) for public use. Little–Tex, 39
S.W.3d at 598. Whether particular facts are sufficient to allege a constitutional taking is
a question of law. Id.; Blanton, 200 S.W.3d at 272. A plaintiff must allege a valid inverse
condemnation claim to demonstrate a waiver of a governmental entity’s immunity from
suit. Blanton, 200 S.W.3d at 272.
B. Analysis
CCRMA argues that the Garzas’ pleadings fail to establish that CCRMA intended
to take the Garzas’ property.
A governmental entity cannot be liable for a taking if it committed no intentional
acts. Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 800 (Tex. 2016). The
Garzas’ inverse-condemnation claim is premised entirely on allegations that CCRMA
failed to take certain actions. See supra note 5. Many of the alleged failures concern
actions required by the mitigation plan, such as removing invasive plant species or
8 planting native vegetation. Other allegations implicate CCRMA’s failure to take actions
that might have ensured the success of the mitigation project, but were not otherwise
required by the plan, such as ensuring adequate hydrology studies for the site. The
Garzas, however, allege no affirmative action by CCRMA that resulted in damage to their
property. “Only affirmative conduct by the government will support a takings claim.”
Kerr, 499 S.W.3d at 799. In other words, governmental inaction is not enough. City of
Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); City of Socorro v. Campos, 510 S.W.3d
121, 127 (Tex. App.—El Paso 2016, pet. denied).
The Texas Supreme Court analyzed an alleged taking by government inaction in
Kerr. 499 S.W.3d at 795. In that case, four hundred homeowners sued Harris County
and the Harris County Flood Control District asserting a takings claim. Id. The
homeowners alleged the flooding of their homes was caused by the County’s approval of
upstream development and its failure to fully implement a flood-control plan known as the
Pate Plan, which the County approved, and authorized the District to implement, over
fifteen years before the lawsuit was filed. Id. at 796–97. Regarding the County’s failure
to implement the Pate Plan, the Texas Supreme Court explained, “the law does not
recognize takings liability for a failure to complete the Pate Plan, despite the homeowners’
attempt to somehow bundle that inaction with the affirmative conduct of approving
development.” Id. at 800. The Court further stated, “Because inaction cannot give rise
to a taking, we cannot consider any alleged failure to take further steps to control flooding,
such as the failure to complete the Pate Plan.” Id. at 805.
9 In the present case, the Garzas’ inverse-condemnation claim rests entirely on
CCRMA’s alleged failure to do what was required by the mitigation plan or to take other
actions which would have ensured the plan’s success. 8 The Garzas do not allege an
intentional act by CCRMA, a necessary element for their inverse condemnation claim.
See id.; see also Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no
pet.) (concluding that the plaintiff’s allegation that property was damaged by the city’s
failure to maintain and repair faulty pipes did not demonstrate a valid takings claim
because it was based only on “negligent omissions”). Because an inverse-
condemnation claim cannot be premised on governmental inaction, we conclude that the
Garzas’ pleadings fail to affirmatively demonstrate the trial court’s jurisdiction. See
Miranda, 133 S.W.3d at 226. We sustain CCRMA’s first issue.
We must now decide whether the Garzas should be afforded an opportunity to
amend their pleadings as to the takings claim. Generally, “‘a plaintiff may stand on his
pleadings in the face of a plea to the jurisdiction unless and until a court determines that
the plea is meritorious.’” Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex.
2007) (quoting lower court’s opinion). Where, as here, a trial court denies a plea to the
jurisdiction, but an appellate court holds that the plaintiff’s pleadings are deficient, the
plaintiff is entitled to a remand if the defects are curable. Id. at 839–40. We have
concluded that the Garzas’ pleadings do not allege sufficient facts to demonstrate a valid
inverse-condemnation claim. However, the pleadings do not affirmatively demonstrate
8 The Garzas maintain on appeal that CCRMA acted affirmatively in abandoning the mitigation
project. However, such an allegation is simply another way of claiming that CCRMA failed to perform the actions required by the mitigation plan.
10 incurable defects in jurisdiction. Therefore, on remand, the trial court must afford the
Garzas the opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226–27.
IV. BREACH OF CONTRACT
By its second issue, CCRMA argues that the Garzas’ pleadings do not establish
the statutory waiver of immunity for breach-of-contract actions found in § 271.152 of the
Texas Local Government Code.
Texas Local Government Code § 271.152 provides:
A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.
TEX. LOC. GOV’T CODE ANN. § 271.152. A “[c]ontract subject to this subchapter” is
defined as: “a written contract stating the essential terms of the agreement for providing
goods or services to the local governmental entity that is properly executed on behalf of
the local governmental entity.” Id. § 271.151(2)(A). According to its plain terms, the
statute by clear and unambiguous language waives a governmental entity’s immunity
from suit for breach of a written contract. City of Houston v. Williams, 353 S.W.3d 128,
134 (Tex. 2011). For a contract to be subject to § 271.152’s waiver of immunity, the
contract must: (1) be in writing, (2) state the essential terms of the agreement, (3) be for
the provision of goods or services to the local governmental entity, and (4) be executed
on behalf of the local governmental entity. Id. at 135.
11 B. Analysis
We first address CCRMA’s contention that the mitigation plan does not constitute
a contract for “goods or services” as required to invoke the statutory waiver of immunity. 9
The Garzas respond that the mitigation plan was a contract for services because the plan
provided CCRMA “a means by which CCRMA could compensate [the Garzas] for its
disturbance of land in constructing its railroad.”
Chapter 271 does not define “services,” but the supreme court has interpreted the
term in this context as “broad enough to encompass a wide array of activities.” Kirby
Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010); City of
Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 566 (Tex. App.—Houston [14th Dist.]
2015, pet. denied). “The term ‘includes generally any act performed for the benefit of
another under some arrangement or agreement whereby such act was to have been
performed.’” Lubbock Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C.,
442 S.W.3d 297, 303 (Tex. 2014) (quoting Kirby Lake, 320 S.W.3d at 839). In other
words, “there must be some obligation to perform.” Kirby Lake, 320 S.W.3d at 839.
Further, the services must be provided directly to the governmental entity. See id. at
838. The waiver of immunity does not extend to contracts in which the governmental
entity received only an indirect, attenuated benefit. Church & Akin, 442 S.W.3d at 303
(citing Kirby Lake, 320 S.W.3d at 839).
9 We assume arguendo that the Garzas are third-party beneficiaries to the mitigation plan. See Galveston Indep. Sch. Dist. v. Clear Lake Rehabilitation Hosp., L.L.C., 324 S.W.3d 802, 810 (Tex. App.— Houston [14th Dist.] 2010, no pet.) (“[W]hen a governmental entity and a contracting party enter into a contract subject to subchapter I and denominate a third-party beneficiary of that contract, the third-party beneficiary’s claim for breach of contract falls within the waiver of immunity authorized under section 271.152.”).
12 Here, the purported contract for goods or services is the mitigation plan. The plan,
which is attached to the Garzas’ pleadings, see TEX. R. CIV. P. 59, details the
enhancement activities for which CCRMA is responsible. However, the plan
contemplates no services which are to be provided to CCRMA. Furthermore, the plan
contains no language supporting the Garzas’ contention that it was intended as “a means
by which CCRMA could compensate [the Garzas] for its disturbance of land in
constructing its railroad.” And even if the plan could be construed in such a way, the
contract would still not require the provision of goods or services to CCRMA. To qualify
as a contract under § 271.152, the plan must have given CCRMA a right to receive
services because otherwise the benefits incidentally accruing to it would be too “indirect”
and “attenuated” to bring the contract under the Act. See Church & Akin, 442 S.W.3d at
303; Kirby Lake, 320 S.W.3d at 839. Accordingly, we conclude that the mitigation plan
does not constitute a contract for goods or services as contemplated by Chapter 271 of
the local government code. See Church & Akin, 442 S.W.3d at 303 (holding that the
plaintiff’s operation of a marina on property leased from the county provided only an
indirect benefit to the water district); see also Partners Dewatering Int’l, L.C. v. City of Rio
Hondo, No. 13-13-00340-CV, 2015 WL 3637853, at *1–2 (Tex. App.—Corpus Christi–
Edinburg June 11, 2015, pet. denied) (mem. op.) (holding that, where the contract
allowing the plaintiff to operate a liquid dewatering facility on the premises of a city-owned
wastewater-treatment plant also required plaintiff to construct a road on the city’s
premises to permit plaintiff’s trucks to access facility, the road provided only an indirect
and attenuated benefit to the city and did not waive immunity).
13 Unlike the defects for the Garzas’ inverse-condemnation claim, the nature of the
contract presents an incurable defect, which affirmatively negates jurisdiction. See
Richardson Hosp. Auth. v. Duru, 387 S.W.3d 109, 113 (Tex. App.—Dallas 2012, no pet.)
(concluding that the plaintiff’s pleadings affirmatively negated jurisdiction where a breach
of contract action was premised on an agreement by which the plaintiff received services
from the governmental entity, but no services were provided to the governmental entity).
Therefore, the trial court erred in not granting CCRMA’s plea to the jurisdiction for this
claim. See Miranda, 133 S.W.3d at 227. We sustain CCRMA’s second issue.
V. CONCLUSION
We reverse the trial court’s order denying CCRMA’s plea to the jurisdiction, render
judgment dismissing the Garzas’ breach-of-contract claim for want of subject matter
jurisdiction, and remand the case to the trial court for further proceedings consistent with
this memorandum opinion.
LETICIA HINOJOSA Justice
Delivered and filed the 10th day of October, 2019.