The City of Cibolo v. Deborah Legros

• Court: Court of Appeals of Texas
• Decided: June 14, 2024
• Docket: 08-23-00291-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CITY OF CIBOLO, § No. 08-23-00291-CV

Appellant, § Appeal from the

v. § 456th Judicial District Court

DEBORAH LEGROS, § of Guadalupe County, Texas

Appellee. § (TC# 23-0697-CV-E)

MEMORANDUM OPINION1

This case involves a property owner who is aggrieved by a city’s alleged unlawful

replatting of a subdivision and failure to enforce land-use restrictions. Appellee Deborah LeGros

sued the City of Cibolo for declaratory relief alleging that the City unlawfully removed covenants

and restrictions when it replatted a subdivision that encompassed her neighbor’s land. According

to LeGros, the replatting allows her neighbors to maintain their property contrary to the original

covenants and restrictions for the area. The only dispute before us is whether the City retains its

governmental immunity. LeGros claims the City’s immunity is waived under § 101.0125(a) of the

Texas Torts Claims Act (TTCA) and § 37.004 of the Uniform Declaratory Judgment Act (UDJA).

1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our own. See Tex. R. App. P. 41.3. The trial court sided with LeGros by denying the City’s plea to the jurisdiction. Because we agree

with the City that immunity is not waived based on the pleadings, we reverse the order of the trial

court and render judgment in favor of the City.

FACTUAL AND PROCEDURAL BACKGROUND Deborah LeGros owns property in the City of Cibolo in Guadalupe County, Texas.

According to her First Amended Petition, the City altered the plat of a subdivision bordering

LeGros’s property. When it did so, LeGros claims the City removed covenants and restrictions

that were designed “to promote the health, safety, morals, or general welfare of the City of Cibolo,

and the safe, orderly, and healthful development of the City of Cibolo, in conformance with Texas

law.” LeGros alleges that the City’s new plat violates the Local Government Code because it

removes existing covenants or restrictions. See Tex. Local Gov’t Code Ann. § 212.014. 2

Consequently, LeGros alleges her neighbors are now allowed to have waste sit on their premises,

have no potable water, have no fire sprinkler system, and have no access road for emergency

services. Additionally, her neighbors were granted a conditional use permit for a manufactured

home to be used as their primary residence, contrary to the property’s zoning limitations.

LeGros sued the City requesting two declarations: (1) the City violated § 212.014 of the

Local Government Code; and (2) the original plat be restored and the amended plat be nullified.

In her petition, LeGros alleged that the trial court had subject matter jurisdiction of this suit

2 That section provides:

A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat: (1) is signed and acknowledged by only the owners of the property being replatted; (2) is approved by the municipal authority responsible for approving plats; and (3) does not attempt to amend or remove any covenants or restrictions. Tex. Gov’t Code Ann. § 212.014.

2 pursuant to § 101.0125(a) of the TTCA, which she claims waives immunity of a municipality for

suits involving the municipality’s zoning, planning, and plat approval, and for its enforcement of

land-use restrictions under Subchapter E, Chapter 212 of the Local Government Code. Further,

LeGros alleged that under the UDJA, immunity is waived for suits where the claimant challenges

the constitutionality of a statute or ordinance, or seeks a declaration of their rights and obligations

with respect thereto. Accordingly, LeGros requested that the trial court construe the provision of

the Local Government Code to ascertain the parties’ rights and obligations regarding the replatting

issue, effectively waiving immunity.

The City filed a plea to the jurisdiction, asserting its immunity against LeGros’s claims.

The City’s brief in support of the plea argues: (1) the provision of the TTCA that LeGros invokes

is not an independent waiver of immunity for the claims at issue here, and no other provision of

the TTCA waives the City’s immunity based on the facts alleged; and (2) the UDJA’s limited

waiver applies to suits challenging the validity of the statute, not a city’s actions pursuant thereto.

The trial court denied the City’s plea to the jurisdiction, prompting this interlocutory

appeal. On appeal, the City argues four points of error that can be distilled into three arguments:

the trial court erred in denying the City’s plea to the jurisdiction because (1) § 101.0215(a) of the

TTCA does not operate as an independent waiver of a municipality’s immunity for the

governmental functions listed in that section; (2) there are no other clear and unambiguous

statutory provisions that waive immunity under the facts alleged in this case; and (3) there is no

waiver for LeGros’s request for declaratory relief under the UDJA. We agree with all the City’s

arguments and reverse the trial court’s order denying the plea to the jurisdiction.

STANDARD OF REVIEW Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction unless the

3 state expressly consents to suit. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

Like sovereign immunity, governmental immunity operates to afford similar protection to cities

and other subdivisions of the State. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject

matter jurisdiction. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

Whether a court has subject matter jurisdiction is a question of law. Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The determination of whether a trial court

has subject matter jurisdiction begins with the pleadings. Id. The plaintiff’s pleadings must “allege

facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Whether a party has met its initial

pleading burden is a question of law reviewed de novo. Turner v. Robinson, 534 S.W.3d 115, 122

(Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing Miranda, 133 S.W.3d at 226).

In ruling on a trial court’s denial of a plea to the jurisdiction based on the pleadings, we

construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Miranda,

133 S.W.3d at 226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the

trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the

issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend.

Id. at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

ANALYSIS LeGros’s Amended Petition invokes the TTCA and the UDJA as two separate bases for

demonstrating waiver of immunity and the trial court’s subject matter jurisdiction over her suit.

The City’s plea attacks jurisdiction under the TTCA because § 101.0215(a) is not an independent

4 waiver of immunity, and no other provision of the TTCA waives the City’s immunity from suit

based on the facts alleged. Further, the City argued that the UDJA does not waive immunity where,

as here, the suit challenges the actions of a city pursuant to a statute and not the validity or

constitutionality of the statute itself. We first address whether the City’s immunity was waived

under the TTCA.

A. TTCA waiver

In her petition, LeGros alleges that the City’s immunity is expressly waived under

§ 101.0215(a) of the Texas Torts Claims Act, which states:

(a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public, including but not limited to: . . . (29) zoning, planning, and plat approval; and . . . (36) enforcement of land use restrictions under Subchapter E, Chapter 212, Local Government Code.

Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a). According to LeGros, a plain reading of this

statute evinces a clear and unambiguous waiver of immunity for suits that seek to challenge a city’s

platting decisions and failure to enforce the land-use restrictions of Chapter 212 of the Local

Government Code.

We agree with the City, however, that this section merely distinguishes between

governmental and proprietary functions, and that is only one of the hurdles that a plaintiff must

clear to show a waiver of immunity under the TTCA. Municipalities assume two roles in the

exercise of their broad powers—proprietary and governmental functions. Wasson Interests, Ltd. v.

City of Jacksonville, 559 S.W.3d 142, 145 (Tex. 2018). Generally, a municipality is not immune

5 from suit for torts committed in the performance of its proprietary functions, while it retains

immunity for torts committed in the performance of its governmental functions. Id. at 146. Section

101.0215 provides guidance for what functions are proprietary and what are governmental.

Compare Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a) (listing governmental functions) with

id. § 101.0215(b) (listing proprietary functions). But finding a function listed in § 101.0215(b)

does not operate as an independent waiver of immunity; it instead only identifies which functions

fall “under the umbrella of the [TTCA].” City of San Antonio v. Winkenhower, 875 S.W.2d 388,

391 (Tex. App.—San Antonio 1994, writ denied).

Instead, to determine if immunity is waived for each function, one must look further into

the TTCA. Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—

Fort Worth 2008, no pet.) (“Determining a municipality’s immunity from suit is a two-step inquiry.

First we determine whether the function is governmental or proprietary. If it is governmental, the

second step is to determine whether immunity is waived under the Texas Tort Claims Act.”)

(omitting citations); see also San Antonio Water Sys. v. Overby, 429 S.W.3d 716, 721–22

(Tex. App.—San Antonio 2014, no pet.) (citing Bellnoa v. City of Austin, 894 S.W.2d 821, 826

(Tex. App.—Austin 1995, no writ) (construing § 101.0215 in conjunction with § 101.021 to

determine whether immunity is waived with respect to a listed function under the conditions

described in § 101.021). Many courts have recognized that the TTCA provides a waiver of only

three categories of suits: (1) the use of publicly owned automobiles; (2) premise defects; and (3)

injuries arising out of conditions or use of property. Miranda, 133 S.W.3d at 225; accord

Rodriguez v. Holmes, 556 S.W.2d 125, 126 (Tex. App.—San Antonio 1977, no writ); Tex. Civ.

Prac. & Rem. Code Ann. § 101.021. None of the allegations in LeGros’s petition support these

theories of recovery, nor does LeGros contend either category applies. Consequently, LeGros has

6 failed to allege facts that demonstrate the trial court’s jurisdiction in this case under the TTCA.

We next turn to whether LeGros sufficiently alleged a waiver of immunity under the UDJA.

B. UDJA waiver

LeGros’s petition also asserts that the trial court has jurisdiction under Chapter 37 of the

UDJA. Under § 37.004, the UDJA permits a person “whose rights, status, or other legal relations

are affected by a statute [or] municipal ordinance . . . [to] have determined any question of

construction or validity arising under the . . . statute [or] ordinance . . . [and to] obtain a declaration

of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code Ann. § 37.004.

LeGros construes this as waiving immunity in suits where a declaratory judgment is sought

regarding the construction or validity of a statute or ordinance. Here, LeGros’s petition requests

that the court construe the rights and obligations of both parties under Chapter 212 of the Local

Government Code and (1) declare that the City violated § 212.014 of the Local Government Code,

(2) order that the covenants and restrictions be restored, and (3) order that the amended plat be

nullified. The question before this Court—one that caselaw provides a clear answer for—is

whether immunity extends to that kind of claim under the UDJA.

The UDJA may waive immunity for certain claims, but it “is not a general waiver of

sovereign immunity.” Texas Parks & Wildlife Dep’t. v. Sawyer Tr., 354 S.W.3d 384, 388–89

(Tex. 2011). Instead, it is a “procedural device for deciding cases already within a court’s

jurisdiction.” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam).

“Consequently, sovereign immunity will bar an otherwise proper [U]DJA claim that has the effect

of establishing a right to relief against the State for which the Legislature has not waived sovereign

immunity.” City of El Paso v. Pickett, 662 S.W.3d 592, 597 (Tex. App.—El Paso 2022, no pet.).

For example, the UDJA does not waive immunity for claims seeking a declaration of the claimant’s

7 statutory rights. Texas Dep’t of Ins., Div. of Workers’ Comp. v. Brumfield, No. 04-15-00473-CV,

2016 WL 2936380, at *4 (Tex. App.—San Antonio May 18, 2016, no pet.) (citing City of

McKinney v. Hank’s Restaurant Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas 2013, no

pet.)). But it does provide a narrow waiver for suits challenging the validity of a statute. Id. (“[T]he

state may be a proper party to a declaratory judgment action that challenges the validity of a

statute.”) (citing Sefzik, 355 S.W.3d at 622)).

LeGros is not challenging the validity or constitutionality of § 212.014 of the Local

Government Code. Instead, she asserts that the City acted wrongfully in violating a provision of

the Local Government Code, and consequently, she requests equitable relief in the form of

restoration of the original plat and its concomitant covenants. As stated above, the UDJA does not

waive immunity for this kind of claim. See Sefzik, 355 S.W.3d at 622 (holding that because plaintiff

was not challenging the validity of the statute but the actions of TxDOT under it, immunity was

not waived).

In her petition, LeGros cites Federal Sign v. Texas Southern University for the proposition

that “a party can maintain a suit against the state to determine rights [under the law] without

legislative permission.” 951 S.W.2d 401, 404 (Tex. 1997). But as the City correctly points out,

this rule applies when state officials act without legal authorization. See City of El Paso v.

Heinrich, 284 S.W.3d 366, 370 (Tex. 2009) (citing Fed. Sign, 951 S.W.2d at 404). In that scenario,

the acts of the official are not considered acts of the state, and the suit is not one against the state

for which immunity applies. Id. As such, a claimant does not need legislative permission to

maintain a suit against state officials to determine their rights. Id. By contrast, LeGros has sued

the City, not a city official, for its violation of the Local Government Code. See Brumfield, 2016

WL 2936380, at *4 (“[T]o fall within the ultra vires exception, a suit must allege that a state official

8 acted without legal authority or failed to perform a purely ministerial act . . . .” (emphasis added));

see also Heinrich, 284 S.W.3d at 373 (discussing other limitations on ultra vires claims).3

Additionally, in her brief, LeGros cites to this Court’s decision in City of El Paso v. Pickett,

where we held that the city’s immunity was waived for a suit invoking the UDJA in a plaintiff’s

challenge to an ordinance that authorized the city of El Paso to assess a tax to compensate for the

wear-and-tear on the city’s streets caused by the city’s utility vehicles. 662 S.W.3d at 596–97, 601.

Pickett, however, is distinguishable. There, the plaintiff expressly sought a declaration as to the

ordinance’s validity. Id. at 601. Here, LeGros is not challenging the validity of § 212.014 of the

Local Government Code. Instead, she is challenging the City’s actions pursuant to that section.

See Heinrich, 284 S.W.3d at 373 n.6 (stating that while the UDJA waives immunity for suits

challenging the constitutionality of a statute or ordinance, plaintiff was not challenging the validity

of the bylaws or the governing statute, but rather petitioners’ actions under them).

Finally, and in not so many words, LeGros concedes the City’s point in her brief: she argues

that “[t]he Legislature has not created a mechanism for third parties to seek judicial review of a

municipality’s platting approval.” See Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., 646

S.W.3d 329, 336 (Tex. 2022) (stating same). But therein lies the problem: A waiver of

governmental immunity requires the Legislature’s clear and unambiguous mandate to that effect.

Brumfield, 2016 WL 2936380, at *2. The absence of a “mechanism” for seeking judicial review

is evidence in and of itself that the Legislature has not waived immunity for LeGros’s claims.

LeGros also requests this Court “advise or issue guidelines as to how a property owner can

overcome a City’s sovereign immunity claim” in this context. While case law might already set

3 Although in her Brief in Opposition to the Defendant’s Plea to the Jurisdiction in the lower court, LeGros requested, as alternative relief, the opportunity to amend her pleadings to cure pleading deficiencies as they may relate to the jurisdiction issue, but she does not renew this request in her appellate brief.

9 out general answers to that question, see Tabrizi v. City of Austin, 551 S.W.3d 290, 294

(Tex. App.—El Paso 2018, no pet.), we are not at liberty to issue advisory opinions to the parties

in this litigation. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444

(Tex. 1993).

CONCLUSION We hold that the City’s immunity was not waived under the TTCA or the UDJA; thus, the

trial court lacked subject matter jurisdiction over this suit. We therefore reverse the order of the

trial court and render judgment dismissing LeGros’ claims against the City of Cibola for lack of

jurisdiction.

JEFF ALLEY, Chief Justice

June 14, 2024

Before Alley, C.J., Palafox and Soto, JJ.