City of Dallas v. Reggie Ruffin

• Court: Court of Appeals of Texas
• Decided: July 28, 2021
• Docket: 05-20-00646-CV
• Status: Published

Opinion

Reversed and Rendered, and Opinion Filed July 28, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00646-CV

CITY OF DALLAS, Appellant V. REGGIE RUFFIN, Appellee

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-19-11133

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Goldstein Opinion by Justice Partida-Kipness The underlying proceeding arose from the July 4, 2019, towing, impounding,

and subsequent sale by the City of Dallas of two vehicles owned by appellee Reggie

Ruffin. In this interlocutory appeal, the City appeals the trial court’s denial of its

plea to the jurisdiction. We reverse the trial court’s order and render judgment

dismissing all claims against the City for lack of jurisdiction.

BACKGROUND

In 2019, Ruffin owned two vehicles: a 1988 Mercury Cougar and a 2005

Suzuki Forenza. On May 30, 2019, Dallas Police Department Officer Kashonda

Copeland saw both vehicles parked on Exeter Avenue in Dallas. She tagged both vehicles with a notice sticker, which stated “WARNING This vehicle may be

impounded if it is not removed within 24 hours.” Officer Copeland did not have

the vehicles towed and closed that incident report, however, because when she

returned after twenty-four hours, she found the vehicles had been moved. Officer

Copeland and her partner noted on several occasions during the officers’ regular

patrol duties in June 2019 that the vehicles were parked at the same location on

Exeter Avenue. On July 1, 2019, the City received a report from a citizen that the

vehicles had been parked in front of her house for over a month without being

moved. Based on that report and her own experience seeing the vehicles parked on

Exeter Avenue, Officer Copeland tagged the vehicles with notice stickers on July 3,

2019. After twenty-four hours passed, Officer Copeland returned to Exeter Avenue

and saw the vehicles were still parked on the street, directly in front of the same

house, and facing the same direction as they had been parked the day before.

According to Officer Copeland’s affidavit testimony, she had the vehicles towed

because they had been left on Exeter Avenue for more than twenty-fours without

being moved in violation of Dallas City Code section 28–84.

The City impounded the vehicles and held them until August 12, 2019, when

they were sold at auction. Before auctioning the vehicles, the City sent two certified

letters to Ruffin informing him of the August 12, 2019 auction date. Ruffin received

one of the certified letters on July 12, 2019, but the second certified letter was

returned to the City unclaimed. Ruffin did not seek to recover his vehicles, and they

–2– were sold at the August 12, 2019 auction. The City no longer has possession of the

vehicles.

Ruffin filed the underlying lawsuit on August 7, 2019, but did not serve the

City until August 13, 2019, the day after the City sold the vehicles. In his original

petition, Ruffin asserted that his vehicles were not abandoned, and the City

committed a “breach” by towing and impounding the vehicles. He sought an

injunction to prevent the City from selling the vehicles at the August 12, 2019

auction, and asked for the return of his vehicles and damages. The City filed its

original answer, which contained a plea to the jurisdiction, special exceptions, and a

general denial, on August 30, 2019. The City specially excepted to Ruffin’s failure

to allege a waiver of governmental immunity for any of his claims and failure to

plead facts supporting a waiver of immunity for any of his claims. The City further

specially excepted to Ruffin’s inclusion of the Dallas Police Department as a party

to the lawsuit. The City set its special exceptions for hearing on October 29, 2019.

Ruffin filed his first amended petition on October 24, 2019. That petition, like his

first, did not identify a waiver of the City’s immunity from suit.

The trial court heard the City’s special exceptions on October 29, 2019. The

trial court granted the City’s first special exception, finding that Ruffin failed to

“plead a valid legislative or constitutional waiver of the City’s governmental

immunity and facts making the waiver applicable under Texas law.” The trial court

ordered Ruffin to amend his petition within twenty days.

–3– Ruffin filed his second amended petition, the live pleading, on November 25,

2019. In it, Ruffin asserted three causes of action against the City. First, he asserted

the City’s seizure of his vehicle was unauthorized by law because the vehicles were

purportedly not tagged by the City, the Mercury Cougar was not abandoned because

it was operable, not left unattended, and not illegally parked, and the Suzuki Forenza

was not abandoned, though its registration was lapsed. Ruffin next asserted an

inverse condemnation claim. He maintained that the seizure constituted an

unconstitutional taking because the seizure was committed “in violation of the city’s

[sic] own statute and without any statutory authority.” Finally, Ruffin asserted a

Section 1983 claim, arguing that the seizure violated his right to due process under

the Fourteenth Amendment of the United States Constitution. Ruffin prayed for

economic damages, punitive damages, and reasonable attorney’s fees and costs.

In response to the second amended petition, the City filed an amended plea to

the jurisdiction. In it, the City requested that Ruffin’s claims be dismissed with

prejudice for want of jurisdiction. The trial court heard arguments but received no

additional evidence on the City’s plea on May 22, 2020. The trial court denied the

City’s plea on June 10, 2020. This appeal followed.

STANDARD OF REVIEW

“Governmental immunity generally protects municipalities and other state

subdivisions from suit unless the immunity has been waived by the constitution or

state law.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506,

–4– 512 (Tex. 2019) (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex.

2014)). The purpose of a plea to the jurisdiction “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). Governmental immunity defeats a trial

court’s subject matter jurisdiction and is properly asserted in a plea to the

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004); Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 467 (Tex.

App.—Dallas 2009, no pet.).

The existence of subject-matter jurisdiction is a question of law, and we

review the trial court’s ruling on a plea to the jurisdiction de novo. City of Dallas v.

Prado, 373 S.W.3d 848, 852 (Tex. App.—Dallas 2012, no pet.). The plaintiff bears

the burden to plead facts affirmatively demonstrating that governmental immunity

has been waived and that the court has subject matter jurisdiction. Id. (citing State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007)). A governmental entity’s plea to the

jurisdiction can be based on the pleadings or on evidence. Miranda, 133 S.W.3d at

226.

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to

hear the cause. Miranda, 133 S.W.3d at 226–227. We construe the pleadings

liberally in favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings

do not contain sufficient facts to affirmatively demonstrate the trial court’s

–5– jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiffs should be afforded the

opportunity to amend. Id. If the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiff an opportunity to amend. Id.

When a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties to determine if a fact issue

exists. Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea

based on evidence “generally mirrors that of a summary judgment under Texas Rule

of Civil Procedure 166a(c).” Prado, 373 S.W.3d at 852 (quoting Miranda, 133

S.W.3d at 228). That is, we take as true all evidence favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts in the nonmovant’s

favor. Prado, 373 S.W.3d at 853. The burden is on the governmental unit as movant

to meet the standard of proof. Id. If the evidence creates a fact question regarding

the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction,

and the fact issue will be resolved by the fact finder. Id. at 852–53. 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 to the jurisdiction as a matter of law. Id. at 853.

–6– ANALYSIS

In five issues, the City asserts its plea to the jurisdiction should have been

granted. Ruffin did not file a brief in this Court. We address each issue raised by the

City in turn.

I. The Unlawful Seizure Claim

In its first issue, the City contends it is immune from suit on Ruffin’s claim

that the seizure and auction of his vehicles were unauthorized by law. The City

argues its plea to the jurisdiction should have been granted because Ruffin’s live

pleading did not identify a waiver of the City’s immunity for this claim, Ruffin’s

claim is a conversion claim for which there is no waiver of the City’s immunity from

suit, and the evidence established that the City complied with the Transportation

Code. We conclude the City’s plea should have been granted as to the unlawful

seizure claim.

First, Ruffin’s second amended petition fails to identify a waiver of immunity.

Ruffin bore the burden of demonstrating a waiver of the City’s immunity by

identifying a “statute or . . . express legislative permission” authorizing his claim.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (a party suing a

governmental entity must establish the State’s consent to suit). When he failed to

meet this burden in his original petition, the City filed special exceptions. After

Ruffin filed his first amended petition, the trial court granted the City’s special

exception that Ruffin failed “to plead a valid legislative or constitutional waiver of

–7– the City’s governmental immunity and facts making the waiver applicable under

Texas law” and ordered Ruffin to replead within twenty days. After being given an

opportunity to amend his petition to identify a waiver of the City’s immunity,

Ruffin’s second amended petition failed to identify an immunity waiver under the

Transportation Code or other law and should, therefore be dismissed with prejudice.

Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has been

provided a reasonable opportunity to amend after a governmental entity files its plea

to the jurisdiction, and the plaintiff’s amended pleading still does not allege facts

that would constitute a waiver of immunity, then the trial court should dismiss the

plaintiff’s action” and [s]uch a dismissal is with prejudice . . . .”). Moreover, no such

statutory authority exists here because the Transportation Code lacks such an

immunity waiver. See TEX. TRANSP. CODE §§ 683.001–.078.

Further, the pleadings affirmatively negate the trial court’s jurisdiction here.

Municipal corporations, such as the City, “exercise their broad powers through two

different roles; governmental and proprietary.” Wasson Interests, Ltd. v. City of

Jacksonville (Wasson II), 559 S.W.3d 142, 146 (Tex. 2018) (quoting Gates v. City

of Dallas, 704 S.W.3d 737, 738 (Tex. 1986)). Immunity protects municipalities from

suit based on the performance of a governmental function unless there is an express

statutory waiver of immunity. Id.; Tex. Nat. Res. Conservation Comm’n v. IT-Davy,

74 S.W.3d 849, 853 (Tex. 2002). In contrast, when a municipality performs a

proprietary function, it is subject “to the same duties and liabilities as those incurred

–8– by private persons and corporations.” Wasson II, 559 S.W.3d at 146. Governmental

functions are enjoined on a municipality by law and are given to it by the state, as

part of the state’s sovereignty, to be exercised in the interest of the general public.

Wasson Interests, Ltd. v. City of Jacksonville (Wasson I), 489 S.W.3d 427, 439 (Tex.

2016) (citing TEX. CIV. PRAC. & REM. CODE § 101.0215(a)). Proprietary functions

are functions that a municipality may, in its discretion, perform in the interest of the

inhabitants of the municipality. Wasson I, 489 S.W.3d at 439 (citing TEX. CIV. PRAC.

& REM. CODE § 101.0215(b)).

Section 101.0215(a) of the Texas Civil Practice and Remedies Code contains

a non-exclusive list of thirty-six governmental functions. TEX. CIV. PRAC. & REM.

CODE § 101.0215(a). If a function is designated as governmental, we have no

discretion to determine that the function is proprietary. City of Houston v.

Downstream Envtl., L.L.C., 444 S.W.3d 24, 33 (Tex. App.—Houston [1st Dist.]

2014, pet. denied); Santander Consumer USA, Inc. v. City of San Antonio, No. 04-

20-00341-CV, 2020 WL 7753730, at *9 (Tex. App.—San Antonio Dec. 30, 2020,

no pet.) (mem. op.). Although section 101.0215(a) designates functions as

governmental for purposes of the Texas Tort Claims Act (TTCA), the list is equally

dispositive with respect to claims against a governmental entity for breach of

contract. Wasson I, 489 S.W.3d at 439 (“the common-law distinction between

governmental and proprietary acts—known as the proprietary-governmental

–9– dichotomy—applies in the contract-claims context just as it does in the tort-claims

context.”).

Here, Ruffin alleges in his live pleading that the City violated the Texas

Transportation Code when it impounded and sold vehicles that were not

“abandoned” as defined by the transportation code. The pleadings and jurisdictional

evidence submitted by Ruffin and the City show that the vehicles in question were

towed and impounded by the City based on Officer Copeland’s determination that

the vehicles were parked in violation of Dallas City Code § 28-84, which provides

that:

A person commits an offense if he leaves standing or parked in a public street, alley, or other public place, an unattended vehicle or other private property for a continuous period of time longer than 24 hours.

DALLAS, TEX., DALLAS CITY CODE § 28-84. Section 28-4 of the Dallas City Code

gives police officers the authority “to remove or cause the removal of a

vehicle . . . from a street to a place designated by the chief of police” under certain

circumstances, including when “(4) the officer has reasonable grounds to believe

that the vehicle has been abandoned;” or when “(9) the vehicle is standing, parked,

or stopped in violation of any provision of this chapter; . . . ” DALLAS, TEX., DALLAS

CITY CODE §§ 28-4(a)(4), 28-4(a)(9). The City provided Ruffin with notice that the

vehicles had been impounded and they would be sold at auction at a date and time

certain.

–10– Among the governmental functions listed in section 101.0215(a) are police

protection and control, and regulation of traffic. TEX. CIV. PRAC. & REM. CODE §§

101.0215(a)(1), 101.0215(a)(21). A city’s impounding and auctioning of vehicles by

law enforcement are governmental functions. See Santander, 2020 WL 7753730, at

*9–10 (City’s actions of operating an impound lot, impounding vehicles, and selling

the vehicles at auction were governmental functions); City of El Paso v. Gomez-

Parra, 198 S.W.3d 364, 369 (Tex. App.—El Paso 2006, no pet) (“In this case, we

find that the activity of auctioning a seized vehicle is so well aligned with the police

and fire protection and control function that the legislature has designated it as a

governmental function.”). Here, Ruffin’s unauthorized seizure claim is based on the

City’s impounding and sale of the vehicles at auction. Those acts were an extension

of the City’s police and fire protection and control function and regulation of traffic

function. As such, the City engaged in activities designated as governmental

functions in section 101.0215(a). See TEX. CIV. PRAC. & REM. CODE §§

101.0215(a)(1), 101.0215(a)(21); see also Gomez-Parra, 198 S.W.3d at 369.

Because Ruffin’s pleadings allege a claim against the City based on its performance

of functions specifically designated as governmental in section 101.0215(a), the trial

court has jurisdiction over his claim only if there is a valid waiver of immunity under

the Act. See Rogers v. City of Houston, No. 14-19-00196-CV, – S.W.3d –, 2021 WL

2325193, at *13 (Tex. App.—Houston [14th Dist.] June 8, 2021, no pet. h.) (“Rogers

has not and does not assert any waiver of governmental immunity for these claims.

–11– Accordingly, the trial court properly dismissed these claims against the City.”); City

of Dallas v. Asemota, No. 05-20-00664-CV, 2021 WL 777089, at *3 (Tex. App.—

Dallas Mar. 1, 2021, no pet.) (mem. op.) (“Immunity protects municipalities from

suit based on the performance of a governmental function unless there is an express

statutory waiver of immunity.”).

A municipality has immunity for activities that the legislature has defined as

governmental, except to the extent immunity is waived by acts, omissions, and

conditions as set out in the TTCA. Gomez-Parra, 198 S.W.3d at 367-68; Smith v.

City of Galveston, No. 14-05-00926-CV, 2007 WL 1152506, at *4 (Tex. App.—

Houston [14th Dist.] Apr. 19, 2007, pet. denied) (mem. op.) (for a municipality to

be liable for a governmental function, liability must arise out of one of the specific

areas of waiver listed under section 101.021 of the TTCA) (citing City of Kemah v.

Vela, 149 S.W.3d 199, 204. n. 1 (Tex. App.—Houston [14th Dist.] 2004, pet.

denied)).

The TTCA waives immunity from suit on all claims for which it waives

immunity from liability. TEX. CIV. PRAC. & REM. CODE § 101.025. The TTCA

waives immunity from liability in three general areas: “use of publicly owned

automobiles, premises defects, and injuries arising out of conditions or use of

property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting

Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)); TEX. CIV. PRAC. &

REM. CODE § 101.021. The TTCA does not waive immunity for claims based on

–12– “assault, battery, false imprisonment, or any other intentional tort. . . . ” TEX. CIV.

PRAC. & REM. CODE § 101.057(2). Further, the TTCA does not waive immunity for

the failure to provide, or the method of providing, police or fire protection. TEX. CIV.

PRAC. & REM. CODE § 101.055(3).

Ruffin’s unauthorized seizure claim does not fall into any of the categories for

which governmental immunity is waived and not excepted under the TTCA. Ruffin’s

pleadings, therefore, affirmatively negate any allegation that the City’s immunity for

performance of its governmental functions is waived and shows that the trial court

lacks subject matter jurisdiction. See Gomez-Parra, 198 S.W.3d at 369 (city immune

from suit arising from sale of vehicle at auction and plea to the jurisdiction should

have been granted); City of Dallas v. Asemota, No. 05-20-00664-CV, 2021 WL

777089, at *1–3 (Tex. App.—Dallas Mar. 1, 2021, no pet.) (mem. op.) (factual

allegations “affirmatively negate the applicability of the waiver provision” found in

government code); see also McLennan Cty. Water Control & Improvement Dist. #2

v. Geer, No. 10-17-00399-CV, 2020 WL 4218085, at *4 (Tex. App.—Waco July 22,

2020, no pet.) (mem. op.) (error to deny plea to the jurisdiction as to intentional tort

claims of trespass and invasion of privacy). We conclude the trial court erred in

denying the City’s plea to the jurisdiction as to Ruffin’s claim for unauthorized

seizure of his vehicles.

A plaintiff is permitted to amend his pleadings to cure insufficiently pled

jurisdictional allegations. Miranda, 133 S.W.3d at 226–27. However, this right has

–13– its limits. “If a plaintiff has been provided a reasonable opportunity to amend after a

governmental entity files its plea to the jurisdiction, and the plaintiff's amended

pleading still does not allege facts that would constitute a waiver of immunity, then

the trial court should dismiss the plaintiff's action.” Harris Cty. v. Sykes, 136 S.W.3d

635, 639 (Tex. 2004). Such is the case here.

Ruffin’s second amended petition failed to demonstrate a waiver of immunity

for his unauthorized seizure claim after the trial court sustained the City’s challenge

to the jurisdictional allegations supporting that claim and gave Ruffin an opportunity

to replead. We conclude Ruffin should not be permitted to again amend his petition

to cure this defect because he already had an opportunity to do so. Sykes, 136 S.W.3d

at 639. Accordingly, we dismiss the unauthorized seizure claim with prejudice. Id.

(“dismissal is with prejudice” where plaintiff has been provided an opportunity to

amend and amended pleading fails to allege facts that would constitute waiver of

immunity); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex. 2006)

(no opportunity to replead where live pleading still failed to demonstrate a waiver of

immunity following two prior amendments to petition).

II. The Takings Claim

Ruffin’s second claim is for inverse condemnation in which he contends the

City took his property without just compensation. Governmental immunity does not

shield the City from a properly-pled takings claim. City of Houston v. Carlson, 451

S.W.3d 828, 830 (Tex. 2014). But if a plaintiff “cannot establish a viable takings

–14– claim,” the government retains immunity, and the court lacks jurisdiction over the

dispute. Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166

(Tex. 2013).

To plead a viable inverse condemnation claim, “a plaintiff must allege an

intentional government act that resulted in the uncompensated taking of private

property.” Carlson, 451 S.W.3d at 831. A taking “cannot be established by proof of

mere negligent conduct by the government.” Harris Cty. Flood Control Dist. v. Kerr,

499 S.W.3d 793, 799 (Tex. 2016). In the context of an inverse condemnation claim,

“the requisite intent is present when a governmental entity knows that a specific act

is causing identifiable harm or knows that the harm is substantially certain to result.”

Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).

“A taking is the acquisition, damage, or destruction of property via physical

or regulatory means.” Carlson, 451 S.W.3d at 831. The Texas Supreme Court

explained in Carlson, however, that a taking does not occur merely because a

governmental entity takes a citizen’s property. Id. at 832–33. As the Carlson court

noted, “nearly every civil-enforcement action results in a property loss of some kind”

but “that property is not ‘taken for public use’ within the meaning of the

Constitution.” Id. The court then held that a party does not allege a taking when the

party objects only to “infirmity of the process.” Id. at 833.

Here, Ruffin merely objects to the “infirmity of the process.” Ruffin does not

contest the validity or constitutionality of the city ordinances or transportation code

–15– provisions permitting the impoundment and sale of abandoned or unattended

vehicles. Rather, he complains about the City’s purported misapplication of those

ordinances and code provisions as to his vehicles. Such pleadings fail to allege a

taking as a matter of law and, as such, the trial court erred by denying the City’s

plea. See CPM Trust v. City of Plano, 461 S.W.3d 661, 673 (Tex. App.—Dallas

2015, no pet.) (appellants did not allege a taking where they “do not contest the sign

regulations in the City’s zoning ordinance, but rather complain about the City’s

misapplication of certain regulations as to their property.”); see also Carlson, 451

S.W.3d at 832–33 (city retained immunity from suit because the plaintiff objected

only to “the infirmity of the process” and “it is immaterial that the city may have

been mistaken regarding the actual safety of the complex”). Because Ruffin failed

to allege a viable takings claim, the City retains immunity from suit. See Triple BB,

LLC v. Vill. of Briarcliff, 566 S.W.3d 385, 397 (Tex. App.—Austin 2018, pet.

denied).

III. The Section 1983 Due Process Claim

Ruffin’s final claim in his second amended petition is titled “Section 1983

Action” under which he generally contends that the City’s “actions” deprived him

“of the rights and privileges secured to Plaintiff by the Constitution and laws of the

United States, including the due process clause of the Fourteenth Amended [sic] of

the Constitution of the United States.” He goes on to state that “the City, its agents,

servants, employees, and other representatives” willfully committed “these actions”

–16– and “[o]thers [sic] said representatives acted negligently in failing to prevent the

violation.”

This pleading is inadequate to state a valid due process claim against the City

for two reasons. First, it does not set out whether Ruffin is alleging a substantive or

procedural due process claim and fails to cite a statutory or other basis for waiving

the City’s immunity from suit. City of Dallas v. Saucedo-Falls, 268 S.W.3d 653,

663–64 (Tex. App.—Dallas 2008, pet. denied).

Second, construing the petition broadly as we must, the only “actions” alleged

in the petition were taken by police officers, and the City may not be held liable

under section 1983 on a respondeat superior theory. See Monell v. Dep’t of Soc.

Servs. of the City of New York, 436 U.S. 658, 694 (1978); City of Houston v.

Aspenwood Apartment Corp., No. 01-97-01378-CV, 1999 WL 681939, at *5–6

(Tex. App.—Houston [1st Dist.] Aug. 27, 1999), opinion supplemented on denial of

reh’g, No. 01-97-01378-CV, 2002 WL 89650 (Tex. App.—Houston [1st Dist.] Jan.

24, 2002, no pet.) (mem. op.). Rather, a city may be held liable only when an injury

was inflicted pursuant to governmental policy or custom. City of St. Louis v.

Praprotnik, 485 U.S. 112, 121-22, 128 (1988) (plurality); Monell, 436 U.S. at 694.

Here, Ruffin has not alleged that any official policy or custom existed that caused

him to be deprived of his due process rights.

In his responses to the City’s plea, Ruffin alleged that Office Copeland filed

a false report and acted maliciously against him and his family. He also implied that

–17– the City was complicit in the alleged cover-up of Officer Copeland’s actions by

“treating this as an unfortunate towing incident instead of a criminal act, an abuse of

a system of poverty, and the city [sic] of Dallas police department belittling,

downplaying, covering up, and trying to discredit the truthful facts.” His response

includes only conclusory and speculative allegations that are insufficient to state a

valid claim and establish jurisdiction over the City. See Stephen F. Austin State Univ.

v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007) (holding that conclusory allegations of

gross negligence are insufficient to meet the recreational use statute standard and

dismissal on a plea to the jurisdiction is appropriate); PermiaCare v. L.R.H., 600

S.W.3d 431, 444 (Tex. App.—El Paso 2020, no pet.) (“conclusory allegations in a

pleading are insufficient to meet a plaintiff’s burden of establishing jurisdiction;

instead, a plaintiff must allege specific facts that, if true, would affirmatively

demonstrate the court’s jurisdiction to hear the case.”) (citing State v. Lueck, 290

S.W.3d 876, 884-885 (Tex. 2009) (recognizing that a plaintiff’s pleadings must do

more than make bare allegations to survive a plea to the jurisdiction)). As such, the

pleadings and evidence presented do not show a valid due process claim that could

waive the City’s immunity here. We, therefore, conclude the trial court erred by

denying the City’s plea to the jurisdiction as to the section 1983 claim.

–18– IV. The Injunction Claim

Finally, the City argues that to the extent Ruffin asks the trial court to order

the City to return the vehicles to him, that request is moot because the City sold the

vehicles at auction. We agree.

The mootness doctrine dictates that courts avoid rendering advisory opinions

by only deciding issues that present a “live” controversy at the time of the decision.

Camarena v. Tex. Emp. Comm’n, 754 S.W.2d 149, 151 (Tex. 1988). An issue

becomes moot when: (1) it appears that one seeks to obtain a judgment on some

controversy, when in reality none exists; or (2) when one seeks a judgment on some

matter which, when rendered for any reason, cannot have any practical legal effect

on a then-existing controversy. Tex. Health Care Info. Council v. Seton Health Plan,

Inc., 94 S.W.3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied). Ruffin’s

request for return of the vehicles to him is no longer a live controversy because it is

undisputed the City sold the vehicles at auction and no longer have custody or

control of the vehicles. See, e.g., Young v. Young, 168 S.W.3d 276, 287 (Tex. App.—

Dallas 2005, no pet.) (husband’s request for payment within thirty days would have

no legal effect because that time period had passed). Here, it is undisputed the City

sold the vehicles at auction and no longer has custody or control of the vehicles. As

such, no live controversy remains as to Ruffin’s request, if any, that the City return

the vehicle to him. Allowing the case to proceed to judgment on the injunction

would, therefore, have no practical legal effect. See id. We conclude this issue is

–19– moot and the trial court should have dismissed any claim for injunctive relief

accordingly.

CONCLUSION

Ruffin’s second amended petition identifies no statutory or other legal basis

for a waiver of the City’s immunity for any of his claims, and the facts alleged

affirmatively negated jurisdiction. Further, the facts pleaded do not support a valid

takings claims or due process claim. Accordingly, we reverse the trial court’s order

denying the City’s plea to the jurisdiction and render judgment granting the City’s

plea. Because Ruffin was given the opportunity to amend his pleading after the City

filed its plea, and his amended pleading still does not allege facts constituting a

waiver of immunity, we dismiss Ruffin’s lawsuit with prejudice.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE

200646F.P05

–20– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CITY OF DALLAS, Appellant On Appeal from the 95th District Court, Dallas County, Texas No. 05-20-00646-CV V. Trial Court Cause No. DC-19-11133. Opinion delivered by Justice Partida- REGGIE RUFFIN, Appellee Kipness. Justices Pedersen, III and Goldstein participating.

In accordance with this Court’s opinion of this date, the trial court’s order denying the City’s plea to the jurisdiction is REVERSED and judgment is RENDERED that Reggie Ruffin’s claims against the City of Dallas are DISMISSED WITH PREJUDICE.

It is ORDERED that appellant CITY OF DALLAS recover its costs of this appeal from appellee REGGIE RUFFIN.

Judgment entered this 28th day of July 2021.

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