in Re Alan J. Atkinson, Sophia Martinez East End on the Bayou Community Association Reserve at East End Property Owners' Association

• Court: Court of Appeals of Texas
• Decided: January 12, 2023
• Docket: 01-22-00811-CV
• Status: Published

Opinion

Opinion issued January 12, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00435-CV ——————————— SOPHIA MARTINEZ, EAST END ON THE BAYOU COMMUNITY ASSOCIATION, AND RESERVE AT EAST END PROPERTY OWNERS ASSOCIATION, Appellants V. DAVID A. NORTHERN, SR., IN HIS CAPACITY AS PRESIDENT AND CEO OF HOUSTON HOUSING AUTHORITY; HOUSTON HOUSING AUTHORITY; MARGARET WALLACE BROWN, IN HER OFFICIAL CAPACITY AS DIRECTOR OF CITY OF HOUSTON’S PLANNING AND DEVELOPMENT DEPARMENT; CITY OF HOUSTON’S PLANNING AND DEVELOPMENT DEPARMENT; MARTHA STEIN, IN HER OFFICIAL CAPACITY AS CHAIR OF HOUSTON PLANNING COMMISSION; CITY OF HOUSTON’S PLANNING COMMISSION; and CITY OF HOUSTON, Appellees

On Appeal from the 113th District Court Harris County, Texas Trial Court Case No. 2022-22238 ****

———————————— NO. 01-22-00811-CV ——————————— IN RE ALAN J. ATKINSON, SOPHIA MARTINEZ EAST END ON THE BAYOU COMMUNITY ASSOCIATION RESERVE AT EAST END PROPERTY OWNERS’ ASSOCIATION, Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

This appeal and original proceeding arise from a suit filed by Appellants

(1) Sophia Martinez, (2) East End on the Bayou Community Association (East End

on the Bayou), and (3) Reserve at East End Property Owners Association (Reserve

at East End) against Appellees, who are local governmental entities and officials.1

In the trial court, Appellants sought declaratory and injunctive relief to stop the

approval of a subdivision plat with variances submitted by the Houston Housing

Authority in connection with the construction of an affordable housing development.

1 Appellees are (1) the Houston Housing Authority, (2) David A. Northern, Sr., in his official capacity as President and CEO of the Houston Housing Authority, (3) the City of Houston’s Planning and Development Department; (4) Margaret Wallace Brown, in her official capacity as Director of the City of Houston’s Planning and Development Department; (5) the City of Houston’s Planning Commission; (6) Martha Stein, in her official capacity as Chair of the City of Houston’s Planning Commission; and (7) the City of Houston. 2 In response, Appellees filed pleas to the jurisdiction, which the trial court

granted, resulting in a judgment of dismissal. On appeal, Appellants assert that the

trial court erred in granting the jurisdictional pleas. Because it lacked subject-matter

jurisdiction, we hold that the trial court did not err in granting the pleas to the

jurisdiction, and we affirm the trial court’s judgment.

After the appeal was filed, (1) Martinez, (2) East End on the Bayou,

(3) Reserve at East End, and (4) Alan J. Atkinson, an individual not a party to the

appeal or the underlying action, filed a petition for writ of mandamus in this Court.2

We dismiss the mandamus petition for lack of jurisdiction.

Background

The Houston Housing Authority (HHA) owned Clayton Homes, an

affordable, multifamily housing complex in the City of Houston (the City) east of

downtown. During Hurricane Harvey, a portion of Clayton Homes’s housing units

flooded, rendering them uninhabitable.

In 2019, HHA entered into an agreement with the Texas Department of

Transportation (TxDOT) to sell Clayton Homes for the construction of a planned

freeway expansion. TxDOT agreed to pay $90,000,000 to HHA for Clayton Homes.

2 The underlying case is Sophia Martinez, et al. v. David A. Northern, Sr., in his official capacity as President and CEO of Houston Housing Authority, et al., cause number 2022-22238, pending in the 113th District Court of Harris County, Texas the Hon. Rabeea Sultan Collier presiding. 3 Under the terms of the agreement, HHA was required to relocate 80 percent of the

Clayton Homes housing units to new units located within a two-mile radius of

Clayton Homes.

HHA used a portion of the TxDOT funds to buy two adjoining tracts of vacant

land east of downtown Houston, totaling approximately 26 acres. The property,

located less than a half mile from Clayton Homes, is where HHA planned to

construct an affordable multifamily housing development for Clayton Homes

residents to relocate. The property lies (1) along the east side of Middle Street (a

north-south street that dead-ends near Buffalo Bayou), (2) west of and contiguous

with a piece of property owned by a business, (3) north of Navigation Boulevard,

and (4) immediately south of the bayou. HHA refers to the planned housing

development as 800 Middle because its address will be 800 Middle Street.

The construction of 800 Middle will be completed in two phases. The first

phase will include the construction of 400 affordable housing units and a five-story

parking garage. The second phase will add 525 housing units. The development will

also include public green space and connections to the hike and bike trail along

Buffalo Bayou.

Before construction of 800 Middle could begin, the City’s Code of Ordinances

(Code) required HHA to obtain approval of a subdivision plat from the City’s

Planning Commission. See HOUS., TEX., CODE OF ORDINANCES, ch. 42, art. II, § 42-

4 20(a) (“[A]ny subdivision of property in the city . . . shall require a subdivision plat

approved pursuant to this article.”)3; see also id. § 42-71(b) (“The [Planning

Commission] shall approve each subdivision plat that complies with the provisions

of this chapter and other applicable laws and requirements.”).

Chapter 42 of the Code “establishes the general rules and regulations

governing plats, subdivisions and development of land within the city . . . to promote

the health, safety, morals and general welfare of the city and the safe, orderly and

healthful development of the city.” Id. art. I, § 42-2. Code section 42-81(a), entitled

“Variances,”4 authorizes the Planning Commission

to consider and grant variances from the requirements of [Chapter 42] by majority vote of those members present and voting . . . when the commission finds that each of the following conditions exist:

(1) Either:

a. The imposition of the terms, rules, conditions, policies and standards of [Chapter 42] would create an undue hardship by depriving the applicant of the reasonable use of the land; or

b. Strict application of the requirements of [Chapter 42] would make a project infeasible due to the existence of unusual physical characteristics that affect the property in

3 See HOUS., TEX., CODE OF ORDINANCES, ch. 42, art. I, § 42-1 (defining “subdivision” to mean “the division of a tract of land, including a lot, into two or more parts to lay out a subdivision of the tract, . . . or to lay out streets, . . . parks or other parts of the tract intended to be dedicated to public use. . ..”). 4 See id. (defining “variance” as “a commission-approved deviation from the requirements of [chapter 42] issued under section 42-81 of this Code”). 5 question, or would create an impractical development or one otherwise contrary to sound public policy;

(2) The circumstances supporting the granting of the variance are not the result of a hardship created or imposed by the applicant;

(3) The intent and general purposes of [Chapter 42] will be preserved and maintained;

(4) The granting of the variance will not be injurious to the public health, safety or welfare; and

(5) Economic hardship is not the sole justification for the variance.

Id. § 42-81(a).

HHA submitted a plat application for 800 Middle to the City’s Planning and

Development Department along with two variance requests.5 The variances

pertained to the construction of two east-west public streets—Kennedy Street and

Ball Street—that would be constructed as part of the 800 Middle development.

Kennedy Street already existed as a public street west of, and intersecting

with, Middle Street where Kennedy Street dead-ended. The proposed plat showed

Kennedy Street extending east from Middle Street through 800 Middle to the

development’s eastern boundary. The proposed Kennedy Street extension through

the development aligned with the already-existing Kennedy Street on the west side

of Middle Street.

5 The application was filed on behalf of HHA by Ally General Solution. 6 Unlike Kennedy Street, Ball Street did not already exist west of Middle Street.

The proposed plat showed Ball Street beginning on the east side of Middle Street

and extending through the 800 Middle development to its eastern boundary.

A company owns the property adjacent to and east of the 800 Middle property.

The backside of the adjacent property shares a boundary with the backside of the

800 Middle property.

The street fronting the adjacent property, and providing access to it, is North

Velasco Street, a north-south street. The proposed plat for the development showed

Kennedy Street and Ball Street dead-ending on the eastern side of 800 Middle’s

property near the property line with the adjacent property. Neither Kennedy nor Ball

Street would extend through the adjacent property to connect with North Velasco

Street.

In its variance application, dated February 21, 2022, HHA indicated that it

sought a variance from Code section 42-134, entitled “Street extension,” which

governs when a public street, “without means of a vehicular turnaround,” must be

extended beyond a plat’s boundary. See id. art. III, § 42-134(a). HHA stated that it

sought a variance “to not extend” Kennedy Street “east of the plat boundary.”

7 Similarly, it sought a variance “to not extend Ball Street nor terminate [it] with a cul-

de-sac.”6

In support of its application, HHA asserted that each of the five conditions

listed in section 42-81(a) required for granting a variance were satisfied. HHA

addressed each of the conditions, explaining why each condition existed with respect

to the 800 Middle development.

On March 9, 2022, the City’s Planning and Development Department sent a

“Notice of Variance” to property owners in the vicinity of 800 Middle. The notice

stated that the department had “received a subdivision plat application with a

variance request for a property located east along Middle Street, north of Navigation

Blvd and south of Buffalo Bayou.” The notice informed the property owners that the

variance request was made “on behalf of the developer” and that “[t]he applicant

[was] requesting a variance to not extend . . . Kennedy Street and Ball Street and to

not terminate Ball Street with a cul-de-sac.”

The notice informed the property owners that the Planning and Development

Department staff was reviewing the application and would make a recommendation

about the application to the Planning Commission. It explained that the Planning

Commission “is the non-legislative body authorized to review and render decisions

6 A cul-de-sac “mean[s] a street with only one outlet that terminates in a vehicular turnaround appropriate for the safe and convenient reversal of traffic movement.” Id. 8 on subdivision applications and requests.” The notice stated that the Planning

Commission would hold a public meeting to consider the application on March 17,

2022, and that members of the public could attend the meeting “[to] make comments

or express concerns about the proposed project.”

Members of the public attended the March 17 meeting. Three speakers

supported the project and three speakers opposed it. One of the speakers opposing

approval of the plat was Alan J. Atkinson, a developer and neighborhood property

owner. Based on the recommendation of the Planning and Development Department

staff, the Planning Commission decided to defer the decision on the 800 Middle plat

for two weeks for further study.

On March 30, 2022, Atkinson emailed a letter to the Planning and

Development Department. In the letter, he voiced his opposition to the variances that

sought not to extend Ball and Kennedy Streets. He asserted that the neighborhood

streets west of 800 Middle, which would provide ingress and egress to the

development, were “substandard because many lack[ed] sidewalks, have roadside

ditches, are narrow and have houses built very close to the street.” Atkinson stated

that “the neighborhood residents [were] concerned with the disruptive impact on

their community due to traffic, congestion, and accessibility issues that this project

will generate by forcing thousands of cars per day through the neighborhood.” He

9 urged that Ball Street should be extended to North Velasco Street to make that the

main access point for 800 Middle.

On March 31, 2022, the Planning and Development Department staff issued

a written report to the Planning Commission regarding HHA’s variance requests for

800 Middle. In the recommendation, the staff discussed each of the five conditions

listed in section 42-81(a) required for a variance to be granted. The Staff concluded

that each condition existed with respect to the requested variances. The staff

recommended that the variances be granted and that the proposed subdivision plat

for 800 Middle be approved. As support for the recommendation, the staff stated that

if the proposed streets were extended east from 800 Middle’s boundary to North

Velasco Street, the streets would not align with the street grid west of the property.

The staff explained that Kennedy and Ball Streets could “be extended when the tracts

to the east [of 800 Middle] are redeveloped.”

The staff also noted that 800 Middle included “greenspace along Middle

[Street] [that would] provide a trail connection to Buffalo Bayou as well as

turnaround to facilitate traffic circulation.” The staff also noted that 800 Middle will

be “within close proximity of multiple bus routes, walking trails, and is within a mile

from Metro’s rapid transit system.” The staff wrote that “[t]he variance [was]

justified by the proposed street improvements and the existing street grid and

10 multimodal transit systems.” They stated, “The provision of new public streets and

improvements to Middle [Street] will provide safe traffic circulation . . ..”

On April 12, 2022, Sophia Martinez, East End on the Bayou, and Reserve at

East End (collectively, Appellants) filed suit to stop the approval of the subdivision

plat and variances for 800 Middle. Martinez alleged that she lived on the already-

existing portion of Kennedy Street that would “soon be connected to a proposed

construction of a one block long extension of her street to the east.” East End on the

Bayou and Reserve at East End alleged that they were “domestic non-profit

corporations formed to promote the maintenance, administration, and preservation

of properties, both privately-owned and commonly held, within two subdivisions in

close proximity and directly contiguous to the proposed 800 Middle Apartments.”

As defendants, Appellants named numerous governmental units and officials,

seeking a declaratory judgment under the Uniform Declaratory Judgments Act

(UDJA) and injunctive relief. As defendants, Appellants named (1) HHA, (2) David

A. Northern, Sr., in his official capacity as President and CEO of HHA, (3) the

Planning and Development Department; (4) Margaret Wallace Brown, in her official

capacity as Director of the City of Houston’s Planning and Development

Department; (5) the Planning Commission; (6) Martha Stein, in her official capacity

as Chair of the Planning Commission; and (7) the City (collectively, Appellees).

11 In their petition, Appellants asserted that constructing Kennedy and Ball

Streets without connecting them to North Velasco Street would create an unsafe

level of traffic through their neighborhood because their streets would provide the

only route to and from 800 Middle. Appellants claimed that the proposed subdivision

plat and requested variances did not meet the requirements of Chapter 42.

Appellants argued that “[the] requested variances, if granted, would violate

the connectivity requirements of Chapter 42 of the Houston Code of Ordinances”

because “the proposed streets would not connect with pre-existing right of ways.”

Appellants asserted that an undeveloped right-of-way for Ball Street already existed

50 feet south of where HHA proposed to construct Ball Street. They alleged that the

undeveloped right-of-way extended east through the adjacent property, connecting

with North Velasco Street. Appellants claimed that, because Chapter 42 required a

proposed street to connect with an existing street, “there is no legal basis for HHA

to ignore the existing Ball Street Right of Way and instead seek to construct a street

that fails to connect to anything but simply dead ends into the eastern fence boundary

of [800 Middle].” Appellants also pointed to a Kennedy Street right-of-way east of

800 Middle. They claimed that “[n]o effort was made to locate the eastern terminal

end of the proposed Kennedy Street in alignment with the existing Kennedy Avenue

Right of Way.” They contended that the “net effect” of the requested variances was

“twofold”: (1) “no traffic from [800 Middle] would flow towards [North] Velasco

12 Street to the east;” and (2) “all traffic will be forced to flow through the existing

neighborhood at . . . two Middle Street intersections.”

Appellants also asserted that the proposed plat “violate[d] the intersection

spacing requirements” of Code section 42-128. Id. § 42-128. Because Ball and

Kennedy Streets did not connect with North Velasco Street, Appellants claimed that

section 42-128 required that the distance between streets’ intersections with Middle

Street be less than 1,400 feet. They asserted that the intersections, as platted, were

not compliant because they were 1,450 feet apart.

Appellants further alleged that, in a final environmental assessment for 800

Middle, HHA had represented that it would submit a traffic impact analysis to the

Planning and Development Department as a prerequisite to obtaining building

permits for the development. Appellants alleged that HHA had not performed the

traffic impact analysis before submitting its plat application and variance requests.

Appellants referenced a traffic impact analysis from an unidentified source which

they claimed determined that the development would result in “4,690 new vehicle

trips per day” through their neighborhood.

Finally, Appellants listed the five section 42-81(a) conditions that the

Planning Commission needed to find existed before it could grant the variances.

Appellants asserted that the variances should not be granted because “[n]one of the

five necessary criteria” had been met.

13 To defeat the defendants’ presumptive jurisdictional bar to suit, Appellants

claimed that Northern, Brown, and Stein, in their official capacities, had acted ultra

vires—that is, without legal authority—in requesting and approving the variances in

their respective roles. Appellants asserted that the UDJA waived governmental

immunity for the four governmental units—(1) HHA, (2) the Planning and

Development Department, (3) the Planning Commission, and (4) the City.

Pursuant to the UDJA, Appellants asked the trial court to declare that

(i) HHA’s Plat application, which propose[d] the current locations of Ball Street and Kennedy Street to not connect with existing right of ways to the east towards Velasco Street, violate[d] the connectivity requirements of Chapter 42 of the Houston Code of Ordinances;

(ii) HHA’s Plat application, which propose[d] the current locations of Ball Street and Kennedy Street to not connect with existing right of ways to the east towards Velasco Street, violate[d] the spacing requirements of Chapter 42 of the Houston Code of Ordinances;

(iii) none of the five required variance criteria [were] met and the variances requested by [HHA were] illegal;

(iv) because the proposed variances [were] illegal, the Plat application must be denied;

(v) because the plat application [was] illegal, no building permits should be approved;

(vi) because Middle Street and the streets to the west and south of the Project cannot be improved to comply with the spacing requirements of Chapter 42 of the Houston Code of Ordinances, any additional flow of traffic from the Project must be directed easterly toward N. Velasco Street, such that all vehicular traffic shall be required to flow towards Velasco Street;

14 (vii) Neither the Ultra Vires Defendant Northern nor the Defendant HHA had the legal or constitutional authority to request the variances set forth in the Plat application and therefore [Northern’s] decision to do so constitutes an ultra vires act;

(viii) Neither the Ultra Vires Defendants Brown or Stein nor the Houston Planning and Development Department and Houston Planning Commission have the legal or constitutional authority to approve the variances set forth in the Plat application and therefore any decision to do so would constitute an ultra vires act;

(viii) (sic) To meet the connectivity and intersection spacing requirements of Chapter 42 of Houston’s Code of Ordinances, Defendants should be required to align the eastern terminal end of proposed Kennedy Street to connect to N. Velasco Street; [and]

(ix) (sic) HHA’s proposal, which would create an additional 4,690 vehicular trips per day, is illegal and would harm the health and safety of existing residents to the west of Middle Street, including, but not limited to, each of the Plaintiffs herein.

Appellants also pursued a temporary restraining order, a temporary injunction,

and a permanent injunction, seeking to prohibit (1) approval of the plat application;

(2) approval of the requested variances; (3) issuance of any building permits for the

800 Middle development; (4) commencement of “any construction activities for the

proposed street grid extensions set forth in the Plat application”; and (5) submission

or approval of “any future Plat application which violate[d] the intersection

connectivity and spacing requirements” of Chapter 42.

On April 13, 2022—the day after Appellants’ filed their petition—the

ancillary judge denied Appellants’ application for a temporary restraining order. The

next day, the Planning Commission approved the subdivision plat with the requested

15 variances for 800 Middle. A revised plat containing the variances was officially

recorded in the Harris County real property records on May 2, 2022.

On May 6, 2022, the City defendants—the City, the Planning Commission,

the Planning and Development Department, Brown, and Stein—filed a plea to the

jurisdiction. HHA and Northern also filed a plea to the jurisdiction, which they

amended on May 9, 2022. In the jurisdictional pleas, Appellees offered several

grounds for dismissing Appellants’ suit for lack of subject-matter jurisdiction.

Among the grounds, Appellees asserted that Appellants’ suit was barred by

governmental immunity. Appellees contended that Appellants had not pleaded a

valid waiver of immunity for the governmental entities—HHA, the Planning

Commission, the Planning and Development Department, and the City. And

Appellees asserted that Appellants’ ultra vires claims against Northern, Brown, and

Stein failed because the officials had not acted without legal authority with respect

to the plat application and variances.

In their response to the jurisdictional pleas, Appellants argued that the four

governmental entities’ immunity was waived because the UDJA “contains a waiver

of immunity from suit for governmental bodies whose presence is necessary to

effectuate and bind them to a judicial declaration.” Appellants argued that Northern,

Brown, and Stein had engaged in ultra vires conduct because their actions had

exceeded their respective legal authority.

16 On May 20, 2022, the trial court conducted an evidentiary hearing on

Appellants’ application for a temporary injunction. That same day, the trial court

denied the application. The trial court also signed an order granting HHA’s and

Northern’s plea to the jurisdiction and dismissing Appellants’ claims for injunctive

and declaratory relief against them. On June 2, 2022, the trial court signed an order

granting the City defendants’ plea to the jurisdiction and dismissing Appellants’

claims against those parties. In its orders, the trial court did not identify the reason

for granting the pleas to the jurisdiction.

The trial court’s second order granting the City defendants’ jurisdictional plea

resulted in a final judgment because it disposed of the remaining parties and claims

in the suit. See H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963)

(holding prior interlocutory orders merged into later order disposing of remaining

parties and issues, creating final and appealable judgment). Appellants now appeal

the judgment, raising five issues.

After the appeal was filed, Relators Martinez, East End on the Bayou, Reserve

at East End, and Alan J. Atkinson, who is not a party to the appeal or the underlying

action, filed an original mandamus proceeding in this Court related to the dispute

over the approval of the plat with the variances.

17 Appeal of Judgment Granting Pleas to the Jurisdiction

In their first four appellate issues, Appellants claim that the trial court erred

by granting Appellees’ pleas to the jurisdiction. Because they are dispositive, we

begin with Appellants’ third and fourth issues in which they contend that the trial

court erred by granting the jurisdictional pleas based on governmental immunity.

A. Standard of Review

A plea to the jurisdiction is a procedural vehicle used to challenge the court’s

subject-matter jurisdiction over a claim. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 232 (Tex. 2004). Whether a court has subject-matter jurisdiction is

a question of law, id. at 226, and we review de novo a trial court’s ruling on a plea

to the jurisdiction, Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015). In

doing so, we exercise our own judgment and redetermine each legal issue, without

giving deference to the lower court’s decision. Quick v. City of Austin, 7 S.W.3d

109, 116 (Tex. 1999).

When reviewing a trial court’s ruling on a challenge to its jurisdiction, we

consider the plaintiff’s pleadings and factual assertions, as well as any evidence

relevant to the jurisdictional issue. See City of Elsa v. Gonzalez, 325 S.W.3d 622,

625–26 (Tex. 2010); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000). We construe pleadings liberally in favor of the plaintiff, look to the pleader’s

intent, and determine if the pleader has alleged facts affirmatively demonstrating the

18 court’s jurisdiction. City of Elsa, 325 S.W.3d at 625; Miranda, 133 S.W.3d at 226.

Allegations found in pleadings may affirmatively demonstrate or negate the court’s

jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). “If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.”

Miranda, 133 S.W.3d at 227.

B. Waiver of Governmental Entities’ Immunity

Before addressing their third issue, we address Appellants’ fourth issue.

There, Appellants argue that the trial court erred by granting Appellees’ pleas to the

jurisdiction because their claims against the governmental entities were not barred

by governmental immunity.

Governmental immunity protects the State’s political subdivisions, including

its cities, against suits and legal liability. Dohlen v. City of San Antonio, 643 S.W.3d

387, 392 (Tex. 2022). “Where a government entity challenges jurisdiction on the

basis of immunity, ‘the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity.’” Ryder Integrated Logistics,

Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015) (quoting Dall. Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)).

In their petition, Appellants claimed that the UDJA waived the governmental

immunity of the four governmental entities—HHA, the Planning Commission, the

19 Planning and Development Department, and the City.7 Specifically, Appellants

asserted that the UDJA “contains a waiver of immunity from suit for governmental

bodies whose presence is necessary to effectuate and bind them to a judicial

declaration.” Because Appellants misconstrue the limited waiver of immunity

provided by the UDJA, we disagree with their assertion.

“While the [UDJA] waives sovereign immunity for certain claims, it is not a

general waiver of sovereign immunity.” Tex. Parks & Wildlife Dep’t v. Sawyer Tr.,

354 S.W.3d 384, 388 (Tex. 2011) (citing TEX. CIV. PRAC. & REM. CODE § 37.006(b)

and City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009)). The UDJA

provides only a limited waiver for challenges to the validity of an ordinance or

statute. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 552 (Tex. 2019).

“UDJA claims requesting other types of declaratory relief are barred absent a

legislative waiver of immunity with respect to the underlying action.” Id.

Appellants’ petition provided a summary of the declaratory relief they sought:

7 The City contends that the Planning and Development Department is a department of the City and not a separate governmental entity. See HOUS., TEX., CODE OF ORDINANCES, ch. 33, art. I, § 33-1 (“There is hereby created and established within and for the city a department to be known as the department of planning and development.”). The City asserts that, to be sued, the Planning and Development Department must “enjoy a separate legal existence.” Darby v. City of Pasadena Police Dep’t, 939 F.2d 311, 313–14 (5th Cir. 1991) (quoting Mayes v. Elrod, 470 F.Supp. 1188, 1192 (N.D. Ill. 1979)). The City points out that Appellants did not allege that the department enjoys a separate legal existence. The City cites this as a ground to affirm the dismissal of Appellants’ claims against the department. However, given our disposition below of the governmental-immunity issue, we need not decide the propriety of the City’s contention. 20 Plaintiffs seek a judicial declaration that, due to two (2) proposed street grid extensions and requests for two (2) variances, each of which violate both the connectivity and spacing requirements contained within Chapter 42 of Houston’s Code of Ordinances, Defendant HHA’s current plat application must be denied, the Ball Street and Kennedy Street variances must be denied, and any future plat application must not attempt to force the flow of vehicular traffic to the west, but must instead provide ingress and egress into the planned development from the east, by and through [North] Velasco Street.

Appellants also requested declarations (1) that Northern and HHA lacked “the

legal or constitutional authority to request the variances . . . and therefore

[Northern’s] decision to do so constitute[d] an ultra vires act” and (2) that the five

City defendants lacked “the legal or constitutional authority to approve the variances

. . . and therefore any decision to do so would constitute[d] an ultra vires act.”

The declarations sought by Appellants did not challenge the validity of the

City’s ordinances. Instead, Appellants relied on the validity of Chapter 42 of the

City’s ordinances to support their challenges to the approval of the plat application

and variances. Appellants sought declarations that the variances and any plat

application containing them must be denied because they violated Chapter 42. In so

doing, Appellants sought a determination of the validity of the subdivision plat with

the variances under Chapter 42 and challenged the actions of the governmental

entities and officials under the ordinances. But Appellants did not challenge the

validity of the ordinances. The Supreme Court of Texas has been clear that the UDJA

does not waive immunity when a plaintiff seeks a declaration of rights under a statute

21 or challenges a governmental entity’s actions under a statute or ordinance. Becky,

Ltd. v. City of Cedar Park, No. 03-15-00259-CV, 2017 WL 2224527, at *6 (Tex.

App.—Austin May 19, 2017, no pet.) (mem. op.) (citing Tex. Dep’t of Transp. v.

Sefzik, 355 S.W.3d 618, 622 (Tex. 2011) (per curiam)); see Heinrich, 284 S.W.3d at

373 n.6) (distinguishing claims challenging validity of statute and those challenging

state’s actions under statute)).

We conclude that that the UDJA did not waive the governmental entities’ right

to immunity from Appellants’ suit.8 We hold that the trial court correctly granted the

pleas to the jurisdiction with respect to Appellants’ claims against the governmental

entities. Accordingly, we overrule Appellants’ fourth issue.

C. Ultra Vires Claims Against Governmental Officials

We next turn back to Appellants’ third issue. In that issue, Appellants argue

that, because the ultra vires exception to governmental immunity applies, the trial

court erred by granting the pleas to the jurisdiction with respect to their claims

against the governmental officials in their official capacities.

8 To the extent that Appellants claimed that the governmental entities’ immunity was waived because they acted ultra vires, such claim would not support a waiver of the governmental entities’ immunity. See Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 348 (Tex. 2019) (“The court of appeals correctly held that the State’s ultra vires claim cannot proceed against the District itself. An ultra vires claim may name a government official in his official capacity, but the underlying governmental entity remains immune from suit.”). 22 1. Legal Principles

Even if a governmental entity’s immunity has not been waived by the

Legislature, a claim may be brought against a governmental official if the official

engages in ultra vires conduct. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017).

Here, Appellants alleged in their petition that government officials Stein, Brown,

and Northern engaged in ultra vires conduct entitling Appellants to declaratory and

injunctive relief. See Heinrich, 284 S.W.3d at 373–75 (recognizing that Texas law

permits ultra vires claims seeking prospective injunctive and declaratory relief

against individual government officials in their official capacities).

“To fall within the ultra vires exception to governmental immunity, a suit

must not complain of a government officer’s exercise of discretion, but rather must

allege, and ultimately prove, that the officer acted without legal authority or failed

to perform a purely ministerial act.” Heinrich, 284 S.W.3d at 372. “Thus, ultra vires

suits do not attempt to exert control over the state—they attempt to reassert the

control of the state.” Id. To reassert such control, an ultra vires suit must lie against

the “allegedly responsible government actor in his official capacity.” Patel v. Tex.

Dep’t of Licensing & Regul., 469 S.W.3d 69, 76 (Tex. 2015).

When, as here, “[a]n ultra vires claim is based on actions taken ‘without legal

authority,’ the claim has two fundamental components: (1) authority giving the

official some (but not absolute) discretion to act and (2) conduct outside of that

23 authority.” Hall, 508 S.W.3d at 239. “[A] government officer with some discretion

to interpret and apply a law may nonetheless act ‘without legal authority,’ and thus

ultra vires, if he exceeds the bounds of his granted authority or if his acts conflict

with the law itself.” Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d

154, 158 (Tex. 2016). Stated another way, a government officer acts without legal

authority if his exercise of judgment or limited discretion is “without reference to or

in conflict with the constraints of the law authorizing the official to act.” Id. at 163.

If the challenged actions “were not truly outside the officer’s authority or in conflict

with the law,” then the plaintiff has not stated a valid ultra vires claim and

governmental immunity will bar the suit. Matzen v. McLane, — S.W.3d —, 2021

WL 5977218, at *4 (Tex. Dec. 17, 2021).

2. Martha Stein & Margaret Wallace Brown

The Planning Commission is the municipal authority responsible for

reviewing and approving subdivision plats in Houston. See TEX. LOC. GOV’T CODE

§ 212.006; HOUS., TEX., CODE OF ORDINANCES, ch. 33, art. II, § 33-22(a). Martha

Stein serves as Chair and a voting member of the Planning Commission. Margaret

Wallace Brown serves as Director of the Planning and Development Department.

She also serves as Secretary of the Planning Commission and as an ex officio

member. See HOUS., TEX., CODE OF ORDINANCES ch. 33, art. II, § 33-14 (providing

that director or director’s designee “shall serve as ex officio member and secretary

24 to the commission”). In their petition, Appellants stated that “Stein’s final approval

of the plat application would constitute an ultra vires act.” Appellants requested a

declaration that Stein and Brown were without legal authority “to approve the

variances set forth in the Plat application.”

The Supreme Court of Texas has recognized that “plat approval is a

discretionary function that only a governmental unit can perform.” City of Round

Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985). “[O]nce the relevant governmental

unit determines that a plat conforms to applicable regulations, it has a ministerial

duty to approve that plat.” Schroeder v. Escalera Ranch Owners’ Assoc., Inc., 646

S.W.3d 329, 332 (Tex. 2022) (citing TEX. LOC. GOV’T CODE §§ 212.005, 212.010;

Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 895 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied)). But only exercises of absolute discretion by

governmental officials are absolutely protected by governmental immunity. See

Hous. Belt, 487 S.W.3d at 164. And “whether a suit attacking an exercise of limited

discretion will be barred is dependent upon the grant of authority at issue in any

particular case.” Id. “[M]any legislative grants of authority, although not absolute,

will be broad enough to bar most, if not all, allegedly ultra vires claims.” Id.

In Hall, the Supreme Court of Texas held that a legislative grant of authority

was broad enough to bar an ultra vires claim. 508 S.W.3d at 243. There, a regent of

a public university sought a writ of mandamus against its chancellor to compel

25 production of university records. Id. at 237. The chancellor had determined that

federal law protected the records. See id. at 236–37. The issue was whether the

chancellor’s discretion to interpret federal law could be challenged in court. See

237–38. The university’s rules gave the chancellor a duty to “determine whether a

Regent may review information protected by [federal law].” Id. at 242. The Hall

court ultimately determined that the chancellor’s discretion under university’s rules

to interpret federal law was not subject to judicial review under the ultra vires

exception. See id. at 243.

In reaching its holding, the Hall court distinguished its earlier holding in

Houston Belt, a case in which the supreme court held that a plaintiff-railroad’s

challenge to a drainage fee assessment could proceed as an ultra vires suit. Id. at 241;

Hous. Belt, 487 S.W.3d at 169. In Houston Belt, the plaintiff-railroad’s pleadings

alleged conduct by the acting government official, Houston’s Director of Public

Works and Engineering, outside the scope of his discretion. See Hous. Belt, 487

S.W.3d at 167–69.

The plaintiff-railroad had complained that the director had acted ultra vires in

imposing the drainage fee based on an unlawful determination of the permeability

of the plaintiff’s property. Id. at 159–60. A Houston ordinance had charged the

director with “administration of [the ordinance] . . . in accordance with and subject

to the provision of [the ordinance].” Id. at 165. Another provision commanded the

26 director to make the permeability determinations “on the basis of digital-map

data . . . or other similar reliable data as shall be determined by the director.” Id. at

159. Instead of using digital map data, or something similar, the director looked at

aerial photographs to make his permeability determination. Id. at 169. The Houston

Belt court determined that, while the ordinance gave some discretion to the director,

the discretion was not absolute. See id. at 168. As a result, the director’s

misinterpretation of his own limits in making the permeability determination was a

valid basis for an ultra vires claim. Id. at 169.

In Hall, the court contrasted the university rules involved there, which placed

a duty on the chancellor to “determine whether a Regent may review information

protected by” federal law, with the ordinance in Houston Belt, which “limited the

Director’s discretion in how he reached a conclusion.” Hall, 508 S.W.3d at 242. The

Hall court stated that, “[w]hen the ultimate and unrestrained objective of an official’s

duty is to interpret collateral law”—that is, law collateral to the law authorizing him

to act—“a misinterpretation [of the collateral law] is not overstepping [his]

authority; it is a compliant action even if ultimately erroneous.” Id. For that reason,

the supreme court held that Hall’s discretion under university rules (the authority

authorizing him to act) to interpret federal law (law collateral to the rules) was not

subject to judicial review. Id. at 243.

27 Recently, the supreme court applied Hall’s reasoning in Schroeder. See 646

S.W.3d at 334–35. There, the supreme court determined that the commissioners of

the City of Georgetown’s Planning and Zoning Commission did not act ultra vires

in approving a subdivision plat because the commissioners had acted within the

enabling ordinance’s constraints. See id. at 335–36.

In Schroeder, a homeowners association sued the commissioners in their

official capacities. Id. at 331. The homeowners association claimed that the approved

subdivision plat did not conform to Georgetown’s ordinances, making the

commissioners’ approval of the plat a clear abuse of discretion. Id. The homeowners

association sought mandamus relief directing the commissioners to rescind their

approval of the plat. Id.

The court recognized that under Georgetown’s Unified Development Code

(UDC) “[t]he Planning and Zoning Commission shall be responsible for considering

and taking final action on . . . Preliminary Plat[s].” Id. at 334 (quoting GEORGETOWN,

TEX., UNIFIED DEV. CODE § 2.05.010(A)(1)). The UDC also required that “[n]o

Preliminary Plat shall be approved without a determination” by the commission “that

the plat conforms’ to UDC requirements and other law.” Id. (quoting GEORGETOWN,

TEX., UNIFIED DEV. CODE § 3.08.070(C)(2)). The UDC’s only restriction on the

commission’s discretion was requiring it “[to] consider the Preliminary Plat

application, the Director’s report, State law, and compliance with this Unified

28 Development Code” when determining whether the plat conformed to the UDC “and

other law.” Id. at 334–35 (quoting GEORGETOWN, TEX., UNIFIED DEV. CODE

§ 3.08.070(D)(1)).

The supreme court explained, “While the UDC limits the discretion of what

the Commission may consider, it does not otherwise restrict the Commission’s

exercise of its discretion to determine conformity.” Id. at 335. If the commissioners

considered the listed items, which the supreme court held they did, “the UDC

commit[ted] to them the discretion to determine [the] plat’s conformity for approval

purposes.” Id. “Even if incorrect in their conclusion [that the plat conformed to the

UDC], the Commissioners did not exceed the scope of their authority.” Id.

The court noted that the plaintiff-homeowners association “[did] not allege

that the commissioners made the conformity determination based on improper

considerations.” Id. Instead, the association “assert[ed] that the Commissioners

simply got the determination wrong.” Id. But “[n]either the UDC nor State law allow

third parties to second-guess the Commission’s decision in this way.” Id.

Like the Schroeder court, we conclude that the reasoning in Hall governs here.

Houston’s Code section 42-71, entitled “Commission consideration and action,”

provides in part:

(a) The commission shall consider and act on each class III plat submitted to it on a preliminary basis and upon a final basis. The commission shall consider and act on each class II plat submitted to it on a final basis. The commission shall consider and act on each 29 subdivision plat or development plat that requests a variance or special exception. The commission also shall consider and act on each class I plat . . . that is referred to the commission by the director.

(b) The commission shall approve each subdivision plat that complies with the provisions of this chapter and other applicable laws and requirements.

HOUS., TEX., CODE OF ORDINANCES ch. 42, art. II, § 42-71(a)–(b).

The record indicates that the subdivision plat for 800 Middle was a “class III

plat.” See id. § 42-23(b). Code section 42-74, entitled “Commission consideration

and action—Class III plat,” provides in part:

(a) The commission shall consider and act on each preliminary class III plat and each final class III plat as provided in this section.

(b) Upon consideration of a preliminary class III plat, the commission shall:

(1) Grant approval of the preliminary class III plat, with or without conditions, upon finding that it meets all the applicable requirements of [Chapter 42] and other applicable law;

(2) Approve one or more requested variances . . ., in whole or in part, with or without conditions, pursuant to section 42-81 . . . of this Code, as applicable, and approve the preliminary class III plat with the variance . . . so granted[.]

Id. § 42-74 (a), (b)(1)–(2). Section 42-81, governing variances, authorizes the

Planning Commission “to consider and grant variances from the requirements of

[Chapter 42] by majority vote of those members present and voting . . . for any

subdivision plat . . . when the commission finds that [five listed] conditions exist.”

30 As shown, the Code directs the Planning Commission to determine a plat’s

conformity. The Supreme Court of Texas has explained that the determination of a

plat’s conformity “is a discretionary one that necessarily involves ‘interpreting and

construing applicable ordinances.’” Schroeder, 646 S.W.3d at 335 (quoting Smith,

687 S.W.2d at 303 (cleaned up)). Other than requiring consideration of the plat,

which was considered here, the Code does not otherwise constrain the Planning

Commission’s discretion in determining a class III plat’s conformity with Chapter

42 and “other applicable law.”9 See id.; Hall, 508 S.W.3d at 242–43 (explaining that,

9 In their reply brief, Appellants assert that the Planning Commission’s discretion was limited by an alleged requirement that, before approving the plat with the variances, the commission was required to consider “Chapter 15 of the [City of Houston’s] Public Works Infrastructure Design Manual” and “federal law governing HHA projects,” which they contend, in turn, required the commission to consider traffic studies. As support, Appellants rely on Schroeder v. Escalera Ranch Owners’ Association, Inc., in which (as discussed) the UDC required the Georgetown Planning and Zoning commission “[to] consider the Preliminary Plat application, the Director’s report, State law, and compliance with this Unified Development Code” when determining whether a plat conformed “to UDC requirements and other law.” 646 S.W.3d 329, 334–35 (Tex. 2022) (quoting GEORGETOWN, TEX., UNIFIED DEV. CODE § 3.08.070(C)(2), (D)(1)). The supreme court recognized that the UDC provision “limit[ed] the discretion of what the Commission may consider, [but] it [did] not otherwise restrict the Commission’s exercise of its discretion to determine conformity.” Id. at 335. Here, Chapter 42 does not contain a similar limitation. Nonetheless, Appellants contend that section 42-71(b), which states that “[t]he commission shall approve each subdivision plat that complies with the provisions of this chapter and other applicable laws and requirements,” required the Planning Commission to consider “Chapter 15 of the [City of Houston’s] Public Works Infrastructure Design Manual” and “federal law governing HHA projects” when determining whether the 800 Middle plat should be approved. HOUS., TEX., CODE OF ORDINANCES ch. 42, art. II, § 42-71(b). They assert that Chapter 15 and “federal law governing HHA projects” were “other applicable laws and requirements” as referenced in section 42.71(b). But section 42-71(b) does not limit what the Planning Commission may consider in exercising its discretion like the UDC 31 if university chancellor was only “tasked with making a determination” and “that

[was] it,” chancellor’s “discretion in making that determination [was] otherwise

unconstrained”).

At the heart of Appellants’ claims is their allegation that the Planning

Commission could not determine that the subdivision plat for 800 Middle conformed

to Chapter 42 because the plat violated the chapter’s street connectivity and spacing

provisions. In other words, Appellants alleged that any determination by the

Planning Commission that the plat conformed with Chapter 42 would be (and was)

wrong. However, when government officials like members of the Planning

Commission are given unconstrained discretion to interpret laws collateral to their

enabling authority, a misinterpretation of the law is not overstepping their authority.

See Hall, 508 S.W.3d at 242. The misinterpretation may be erroneous but is

nonetheless compliant with the granted authority. See id. As the supreme court

explained,

[A]n ultra vires doctrine that requires nothing more than an identifiable mistake would not be a narrow exception to immunity: it would swallow immunity. After all, do not all successful lawsuits require a legal wrong? As important as a mistake may be, sovereign immunity comes with a price; it often allows the ‘improvident actions’ of the government to go unredressed.

provision did in Schroeder. Instead, section 42-71(b) reflects the Planning Commission’s unrestricted discretion to determine whether a plat “complies with the provisions of [Chapter 42] and other applicable laws and requirements.” Id. 32 Id. at 242–43.

Here, the requested variances aside, the Planning Commission had the

unconstrained discretion to determine whether the plat conformed with Chapter 42’s

street connectivity and spacing provisions. In other words, even if the members of

the Planning Commission misinterpreted the connectivity and spacing ordinances in

finding that the 800 Middle plat conformed with the ordinances, such erroneous

decision would nonetheless be within the scope of the commission’s authority. See

Schroeder, 646 S.W.3d at 335; Hall, 508 S.W.3d at 242.

In any event, HHA did request variances—meaning a deviation from Chapter

42’s requirements—not to extend Kennedy and Ball Streets beyond 800 Middle’s

western boundary. Appellants asserted that, if Kennedy and Ball Streets were

extended to North Velasco Street, the connectivity and spacing requirements would

be satisfied, but, if the variances were granted, those requirements would not be met.

Section 42-71(a) requires the Planning Commission to “consider and act on

each subdivision plat or development plat that requests a variance,” while section

42-74(b) requires the commission to “[a]pprove one or more requested variances”

pursuant to section 42-81 and to approve the plat with the granted variance. HOUS.,

TEX., CODE OF ORDINANCES ch. 42, art. II, §§ 42-71(a), 42-74(b). In turn, section 42-

81 authorizes the Planning Commission to grant variances from the requirements of

Chapter 42 when the commission finds that each of five listed conditions exist. See

33 id. § 42-81. The only restriction placed on the Planning Commission’s authority to

grant a variance is the requirement that it find the existence of the five listed

conditions. No other restrictions are placed on the commission’s discretion to grant

a variance, and no restrictions are placed on its discretion to determine the existence

of the five conditions. See id.

Appellants alleged in their petition and continue to allege on appeal that the

Planning Commission could not grant the variances because, in their view, none of

the five conditions have been met. Appellants do not claim that members of the

Planning Commission granted the variances without finding that the five conditions

existed—the only limitation placed on their discretion to grant a variance.10 Instead,

based on their own analysis and interpretation of the conditions, Appellants contend

that the Planning Commission made the wrong decision to grant the variance. But,

because they had unconstrained discretion in finding that the five conditions existed,

the members of the Planning Commission did not exceed the scope of their authority

in finding the conditions existed, even if their findings were incorrect. See

Schroeder, 646 S.W.3d at 335; Hall, 508 S.W.3d at 242. Neither the Code nor State

10 The record shows that, in a written report, the Planning and Development Department’s staff recommended to the Planning Commission that the variances be granted. The recommendation addressed each of the five conditions and found that they each existed. The Planning Commission’s meeting minutes note the staff’s recommendation along with the commission’s grant of the variances. Accordingly, we do not give Appellants an opportunity to replead its ultra vires claim. See Schroeder, 646 S.W.3d at 335 n.42. 34 law “allow third parties to second-guess the [Planning] Commission’s decision in

this way.” Schroeder, 646 S.W.3d at 335.

We conclude that Stein in her role as Director and a voting member of the

Planning Commission was not without legal authority to approve the plat with the

variances. And, to the extent that Brown, as Secretary and an ex officio member of

the Planning Commission, played a role in the approval of the plat with the

variances, we also conclude that she was not without legal authority to do so. Thus,

the ultra vires exception does not apply to Appellants’ claims against Stein and

Brown, and they retained their governmental immunity from suit.

3. David Northern, Sr.

Appellants also sought a declaration that Northern, in his official capacity as

CEO and president of HHA, had no legal authority to request variances for the 800

Middle subdivision plat and that “[Northern’s] decision to do so constitute[d] an

ultra vires act.” Relevant to HHA’s authority—and by extension Northern’s

authority—Chapter 392 of the Texas Local Government Code, entitled “Housing

Authorities Established by Municipalities and Counties,” governs, inter alia, the

creation and regulation of municipal housing authorities like HHA. See TEX. LOC.

GOV’T CODE §§ 392.001–.104. Section 392.051 provides that a municipal housing

authority has “the powers necessary or convenient to accomplish the purposes and

provisions of [Chapter 392].” Id. § 392.051. And section 392.052 states that HHA

35 “may provide for the construction . . . of a housing project,” which will be subject to

applicable ordinances. See id. § 392.052.

The City’s Code provides that any subdivision of property, such as 800

Middle, requires a subdivision plat to be filed and approved. See HOUS., TEX., CODE

OF ORDINANCES, ch. 42, art. II, § 42-20(a); see also TEX. LOC. GOV’T CODE

§ 212.004 (requiring plat for subdivision of property located in municipality). Thus,

because it has the authority necessary to accomplish the construction of housing

projects, such as 800 Middle, HHA has authority to file and seek approval of a

subdivision plat for such a project. See TEX. LOC. GOV’T CODE §§ 392.051–.052.

Nonetheless, Appellants asserted that HHA and Northern were without

authority to submit the variance requests along with the plat application because the

variances would result in nonconformance with Chapter 42’s street connectivity and

spacing requirements. But, in making this argument, Appellants ignore the purpose

of requesting a variance, which the Code defines to “mean a commission-approved

deviation from the requirements of [Chapter 42] . . ..” HOUS., TEX., CODE OF

ORDINANCES, ch. 42, art. I, § 42-1. In other words, the very essence of a variance is

its nonconformance with Chapter 42’s requirements. And, as Appellants recognized

in their petition, section 42-81 authorizes the Planning Commission “to consider and

grant variances from the requirements of [Chapter 42].” Id. art. II, § 42-81(a). Thus,

considering the relevant provisions of the Local Government Code and the

36 applicable City ordinances, Northern, as HHA’s CEO and President, was not without

legal authority to request the variances and any decision by Northern to request the

variances was not ultra vires conduct. We conclude that the ultra vires exception

does not apply to Appellants’ claims against Northern and that he retained his

immunity from suit.

Having determined that the three governmental officials retained their

governmental immunity, we hold that the trial court properly granted the pleas to the

jurisdiction regarding Appellants’ claims against Stein, Brown, and Northern in their

official capacities. Accordingly, we overrule Appellants’ third issue.11

Mandamus Petition

Relators Atkinson, Martinez, East End on the Bayou, and Reserve at East End

have filed a petition for writ of mandamus related to the dispute regarding the

approval of the 800 Middle subdivision plat. As “Respondents,” Relators identify

(1) David A. Northern, Sr., in his official capacity as President and CEO of HHA,

(2) HHA, (3) the Planning and Development Department; (4) Margaret Wallace

Brown, in her official capacity as Director of the City of Houston’s Planning and

11 Because the trial court lacked subject-matter jurisdiction over all of Appellants’ claims based on governmental immunity, we need not reach Appellants’ first and second issues challenging other jurisdictional bases for dismissal asserted by Appellees in their pleas to the jurisdiction. See TEX. R. APP. P. 47.1. Nor do we reach Appellants’ fifth issue challenging the trial court’s denial of their application for temporary injunction. See id. 37 Development Department; (5) the Planning Commission; (6) Martha Stein, in her

official capacity as Chair of the Planning Commission; and (7) the City. See TEX. R.

APP. P. 3.1(h)(2) (defining “respondent” to mean “a party against whom relief is

sought in an original proceeding in an appellate court”).

Government Code section 22.221(b) provides this Court with authority to

issue a writ of mandamus against

(1) a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district;

(2) a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district; or

(3) an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code, in the court of appeals district for the judge who appointed the associate judge.

TEX. GOV’T CODE § 22.221(b). An appellate court may also “issue a writ of

mandamus and all other writs necessary to enforce the jurisdiction of the court.” Id.

§ 22.221(a).

Section 22.221(b) does not authorize a court of appeals to issue a writ of

mandamus against governmental entities and officials like Respondents. See id.

§ 22.221(b). And, in their petition, Relators have not shown, or even mentioned, that

issuing a writ of mandamus is necessary to enforce this Court’s jurisdiction.12 See

12 “The function of the writ of mandamus is to compel action by those who by virtue of their official or quasi-official positions are charged with a positive duty to act.” 38 id. § 22.221(a). Accordingly, we lack subject-matter jurisdiction to issue a writ of

mandamus against Respondents. See In re Harrell, No. 01-17-00873-CV, 2017 WL

6001534, at *1 (Tex. App.—Houston [1st Dist.] Dec. 5, 2017, orig. proceeding)

(mem. op.) (per curiam).

For the reasons discussed, we dismiss Relators’ mandamus petition for lack

of jurisdiction. We dismiss all pending motions, including Relators’ “Emergency

Motion for Expedited Relief,” as moot.

Sanctions under Rules of Appellate Procedure 45 and 52.11

In their appellate brief, HHA and Northern ask this Court to sanction

Appellants under Rule of Appellate Procedure 45 for bringing a frivolous appeal.

And, in their response to the mandamus petition, HHA and Northern ask this Court

to sanction Relators under Rule of Appellate Procedure 52.11 for filing a groundless

mandamus petition.

A. Rule 45

Rule 45 provides that if a court of appeals determines that an appeal is

frivolous, it may award a prevailing party just damages. See TEX. R. APP. P. 45.

“Whether to grant sanctions for a frivolous appeal is a matter of discretion that this

In re Castle Tex. Prod. Ltd. P’ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler 2006, orig. proceeding) (referencing Boston v. Garrison, 256 S.W.2d 67, 70 (Tex. 1953)). We note that, while they ask for “mandamus relief” in their petition, Relators do not identify what action by Respondents they seek to compel. 39 court exercises with prudence and caution and only after careful deliberation in truly

egregious circumstances.” Gard v. Bandera County Appraisal Dist., 293 S.W.3d

613, 619 (Tex. App.—San Antonio 2009, no pet.); see Smith v. Brown, 51 S.W.3d

376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Notably, Rule 45 does

not require an appellate court to award just damages in every case in which an appeal

is frivolous. Woods v. Kenner, 501 S.W.3d 185, 198 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (citing Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied)). After reviewing the appellate record and

briefing, we deny HHA and Northern’s Rule 45 sanctions request.

B. Rule 52.11

In an original proceeding, Rule 52.11 permits sanctions for “filing a petition

that is clearly groundless.” TEX. R. APP. P. 52.11(a). However, “[a]n appellate court

should exercise the discretion afforded by Rule 52.11 with caution and only after

careful deliberation.” In re Cooper, 320 S.W.3d 905, 911 (Tex. App.—Texarkana

2010, orig. proceeding). Adhering to these principles, we deny HHA and Northern’s

Rule 52.11 sanctions request.

40 Conclusion

In appellate cause number 01-22-00435-CV, we affirm the trial court’s

judgment. In appellate cause number 01-22-00811-CV, we dismiss the petition for

writ of mandamus for lack jurisdiction and dismiss all pending motions as moot.

Richard Hightower Justice

Panel consists of Justices Goodman, Hightower, and Guerra.