Willie Jones & Jeanette Crummedyo v. City of Missouri City, Texas

Opinion

Opinion issued August 31, 2026

In The

Court of Appeals

For The

First District of Texas

We also consider whether a city, having explicitly refused the public dedication of a private street, may be compelled to nonetheless accept the dedication because the public has continued to access the street.

The trial court granted summary judgment in favor of Missouri City on each of these issues.

We affirm and hold that municipalities are immune from suits under the Uniform Declaratory Judgment Act [“the UDJA”] unless the Legislature has expressly waived immunity for the particular claims at issue—but that a municipality may nonetheless seek a declaratory judgment to determine whether a street within its boundaries is public or private. We also hold that a municipality, having refused the public dedication of a street, may not be compelled to accept the dedication simply because the public continues to access the street.

Background

Meadowcreek Subdivision Sections One and Four were developed in Missouri City, Texas, in 1973. A plat filed in public records at the time noted that the developer intended to “dedicate to public use, as such, the streets, alleys, parks, and easements” shown on the plat. The plat was approved by the city planning commission, but no action was taken to formally accept the public dedication of the streets.

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An ordinance in Missouri City required a minimum 50-foot right-of-way and a minimum pavement width of 28 feet. The streets in Meadowcreek Section One comply with the ordinance, but the streets in Meadowcreek Section Four do not.

At a city council meeting held the day after the plat was filed, an engineer for the developer of Meadowcreek Sections One and Four assured the city council that the streets in Section Four were “private streets to be maintained by the subdivision; that there was no public right of way; and that the City does not regulate private streets. At the same meeting, the mayor noted that the City did not have the authority to regulate “the width of a driveway or a private street,” but concluded that “the city would never have to spend a penny for maintenance of those streets.”

The developer of the subdivision filed restrictive covenants in 1973, broadly defining “common property” as “all property . . . other than the property specifically designated as Building Lots.” Under a section entitled “Maintenance of Common Property,” the restrictive covenants specifically refer to “private streets” and provide that “Meadowcreek Patio Homes Association, Inc., shall have full control and discretion with respect to the details of such improvements and maintenance.” The restrictive covenants further provide that the “Meadowcreek Patio Homeowners Association, Inc., shall perform all functions necessary for the proper maintenance, upkeep and repair of the common property.” The deed restrictions grant the City an easement to use the private streets in Section Four to deliver services to its residents.

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In 1982, several residents of Meadowcreek Subdivision Section Four asked the City to declare the streets in Section Four as public streets. At a city council meeting, the mayor and councilmembers discussed the impact of declaring these streets public. The Council noted that “it was the intention of the developer and the property owners that these were private streets, and that they were not built to public street standards.” It also expressed reservations, noting that “if this was done for these patio homes, it would have to be done for all of them.” A councilmember moved that “the City’s position would be that the streets in Meadowcreek Section [Four] were private streets.” The motion passed unanimously.

Fifty years after the subdivision was developed, Willie Jones and Jeanette Crummedyo (collectively, “the Homeowners”) sued Missouri City seeking a declaration that the streets in Meadowcreek Section Four are public and that the City is required to provide maintenance for them. The City filed a motion for summary judgment, arguing that the trial court lacked jurisdiction over the Homeowners’ claims because governmental immunity barred their suit.

The City also moved for summary judgment seeking a declaration that it “does not have any duty regarding the maintenance or improvement of the streets in Meadowcreek Section [Four].”

The trial court granted summary judgment for Missouri City dismissing the Homeowners’ claims for lack of subject-matter jurisdiction. It also granted

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summary judgment for the City on its claim for declaratory relief. The trial court ruled that the City does not have any duty regarding the maintenance or improvement of the streets in Meadowcreek Section 4 because the “appropriate municipal officials have never made an actual appropriation of the dedicated parts of those streets by entry, use, or improvement.”

The Homeowners now appeal.

Summary Judgment

In their first and second issues, the Homeowners contend that the trial court erred in granting summary judgment for the City by (1) dismissing their claims for lack of jurisdiction and (2) granting the City’s claim for declaratory relief. A. Standard of Review We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must establish that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

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If the movant conclusively establishes its right to judgment, the burden shifts to the non-movant to present sufficient evidence to create a genuine issue of material fact. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In deciding whether a material fact issue precludes summary judgment, we take evidence favorable to the non-movant as true and indulge every reasonable inference, and resolve any doubts, in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Evidence raises a genuine issue of fact if reasonable people could differ in their conclusions in light of all of the summary- judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

A defendant moving for summary judgment on an affirmative defense must plead and conclusively establish each essential element of the defense, thereby defeating the plaintiffs’ cause of action. KPMG Peat Marwick, 988 S.W.2d at 748. B. Immunity A governmental entity may assert the affirmative defense of immunity to challenge a trial court’s jurisdiction “through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).1

1 See also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.

2012) (noting that review of plea challenging existence of jurisdictional facts mirrors that of traditional summary-judgment motion); City of Hous. v. Guthrie, 332

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Subject-matter jurisdiction is essential to a court’s authority to decide a case.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). “Sovereign immunity implicates a trial court’s jurisdiction, and, when it applies, precludes suit against a governmental entity.” Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 75 (Tex. 2015). Governmental immunity offers the same protections for political subdivisions of the State, including municipalities. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008); see Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex. 2020).

“[S]overeign immunity bars UDJA actions against the state and its political subdivisions absent a legislative waiver.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). The UDJA does not enlarge a trial court’s jurisdiction. Id. at 621. Rather, it is “merely a procedural device for deciding cases already within a court’s jurisdiction.” Id. at 622. Accordingly, the underlying action, if against the state or its political subdivisions, must be one for which immunity has expressly been waived. Id.

S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“By requiring the [governmental entity] to meet the summary judgment standard of proof . . . , we protect the plaintiffs from having to put on their case simply to establish jurisdiction.”).

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The UDJA allows a person whose rights 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.” See TEX. CIV. PRAC. & REM. CODE § 37.004(a).

However, there is no general right to sue the state or its political subdivisions for a declaration of rights. Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). As the Texas Supreme Court has recognized, the “UDJA does not waive . . . immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law.” Sefzik, 355 S.W.3d at 621. Rather, it provides only a limited waiver for challenges to the validity of an ordinance or statute and for claims against a state official for nondiscretionary acts unauthorized by law. Id. at 622.

Accordingly, an action against the state or its political subdivisions must be one for which immunity has expressly been waived. Id. Such immunity is waived when a party seeks a declaratory judgment challenging the validity of a statute. Id. Immunity is not waived, however, when a party challenges the action taken by the state or political subdivision pursuant to a statute. Id.

Here, Missouri City argues that it is entitled to summary judgment on the Homeowners’ claims because it conclusively established its immunity defense. The Homeowners’ petition seeks a judgment declaring that all roads in Meadowcreek

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Section Four are dedicated to public use, are not limited to private use, and are entitled to receive funding from the City for infrastructure improvements.2 The Homeowners’ petition does not challenge the validity of any statute.

Rather, they challenge the City’s actions under it. And they did not sue any particular officials under the ultra-vires exception to immunity. Thus, their claims do not fall within the scope of any of the express waivers of immunity. See Sefzik, 355 S.W.3d at 621–22.

We conclude that because Missouri City retained its immunity, the trial court properly granted the City’s motion for summary judgment on its immunity to the Homeowners’ claims.

We overrule issue one.

C. Declaratory Judgment for the City In its final judgment, the trial court further ruled that:

The City’s request for declaratory relief is granted and it is hereby declared that the City of Missouri City does not have any duty regarding the maintenance or improvement of the streets in Meadowcreek Section [Four], because the appropriate municipal officials have never made an

2 They also assert that Missouri City damaged Section Four’s roads by using them to service adjacent roads. And they complain that the City is “knowingly and directly contributing to the deterioration of home values across the Meadowcreek Subdivision.” They seek “actual damages.” The trial court dismissed these claims for damages, holding that the Homeowners “abandoned those claims in their Response to the City’s Motion for Summary Judgment.” On appeal, the Homeowners assert that “. . .they don’t seek damages. . ..” Therefore, nothing is presented for our review on this issue.

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actual appropriation of the dedicated parts of those streets by entry, use, or improvement.

The Homeowners contend in their second issue that this was erroneous because there are genuine issues of material fact with respect to whether the roads are public. We disagree.

We begin by noting that, even though the trial court had no subject-matter jurisdiction to address the Homeowners’ claims against the City, it retained jurisdiction to consider the declaratory relief requested by the City. See City of McKinney v. Hank’s Restaurant Grp., L.P., 412 S.W.3d 102, 116 (Tex. App.— Dallas 2013, no pet.) (holding State’s immunity not waived by asserting counterclaim for declaratory relief under the UDJA).3 We thus consider whether the trial court properly granted summary judgment on the City’s request for a declaration that it had no obligation to maintain the streets at issue because they are not public.

Missouri City’s obligation regarding street maintenance in the approved subdivisions is governed by section 212.001(a) of the Texas Local Government Code. It provides:

3 We note that the City did not request and was not awarded any monetary damages, including attorneys’ fees, on any of the Homeowners’ claims or its own claims.

Therefore, we need not address whether such a claim would waive its immunity.

See City of McKinney v. Hank’s Restaurant Grp., L.P., 412 S.W.3d 102, 119 (Tex.

App.—Dallas 2013, no pet.) (holding immunity waived by State’s request for attorneys’ fees incurred in prosecuting affirmative—not merely defensive—claims for violation of city code ordinances).

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The approval of a [subdivision] plat is not considered an acceptance of any proposed dedication and does not impose on the municipality any duty regarding the maintenance or improvement of any dedicated parts until the appropriate municipal authority makes an actual appropriation of the dedicated part by entry, use, or improvement.

TEX. LOC. GOV’T CODE § 212.011(a).

As a result, it was the City’s burden to establish that it had not made an actual appropriation of the streets at issue in this case by entry, use, or improvement. In support of its request for declaratory relief, the City presented the following evidence, which we list here and discuss in more detail below.

1. Missouri City, Texas Ordinance No. 87a 2. Minutes of May 9, 1973 city planning commission meeting

3. Certified copy of Subdivision Plat for Meadowcreek Subdivision Sections One & Four

4. Affidavit of Shashi Kumar 5. Minutes of June 12, 1973 city council meeting

6. Restrictions and Covenants Governing Property and Lots in Meadowcreek Subdivision Section Four

7. Minutes of December 20, 1982 city council meeting.

Based on this evidence, Missouri City showed that on January 21, 1963, the city council passed Ordinance 87a (Exhibit 1) adopting a set of regulations for the subdivision of property. The ordinance and regulations provided that the minimum right-of-way width for minor public streets was 50 feet and the minimum pavement width was 28 feet. According to Shashi Kumar, the City Engineer and Director of

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Public Works for the City, the streets in Meadowcreek Section One were designed to meet the City’s minimum standard for right-of-way and pavement widths—but the streets in Section Four were not (Exhibit 4).

On June 11, 1973, the subdivision developer filed a document entitled “Restrictions and Covenants Governing Property and Lots in Meadowcreek Subdivision Section Four” in the property records of Fort Bend County, Texas. (Exhibit 6). This document provides that “[t]hat portion of the common property designated on said record plat as private streets shall be improved, maintained and used solely as private streets for the building lot owners and their guests, invitees and licensees” and that the homeowners’ association “shall have full control and discretion with respect to the details of such improvements and maintenance.”

Minutes from city council meeting the next day—June 12, 1973—address the status of the streets in Meadowcreek Section Four. An engineer representing the subdivision developer told the council that the streets in Section Four were “private streets to be maintained by the subdivision; that there was no public right of way; and that the City does not regulate private streets.” (Exhibit 5). At the same meeting, the mayor expressed his understanding that “the City would never have to spend a penny for maintenance of [the streets in Section Four].”

According to the City Engineer, in the 1980’s the homeowner’s association for Section Four asked the city council to accept the streets in Section Four by

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dedication as public streets. According to minutes from a city council meeting on December 20, 1982, the mayor recognized that the issue of private streets “was a problem in several patio home/townhouse subdivision[s]” and that designating the streets as public “would be quite an impact.”

A councilmember moved that the city’s position “would be that the streets in Meadowcreek Section [Four] were private streets.” After discussing that “the intention of the developer and the property owners [was] that these were private streets, and that they were not built to public street standards,” the city council voted unanimously that the streets in Section Four were, in fact, private. (Exhibit 7)

Missouri City’s evidence is sufficient to establish that the City has not appropriated the streets in Section Four as public streets, but that it has consistently denied attempts to have the streets declared public. This evidence shows that Missouri City affirmatively denied the attempted dedication of the streets as public when the city council voted in 1982 to keep the streets private, as they had been since the inception of the subdivision.

We thus consider whether the Homeowners presented evidence raising a fact question on the sole issue in this summary judgment—i.e., whether the City has accepted the attempted dedication by actually appropriating the streets by entry, use, or improvement.

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The Homeowners point to two pieces of evidence—the 1973 plat filed in the Fort Bend County real property records and affidavits from Homeowners indicating that the public has been, in fact, using the streets for decades.4 We discuss each in turn.

The plat, filed in May 1973, provides that the subdivision’s original developers “dedicate[d] to public use, as such, the streets, alleys, parks, and easements shown thereon forever . . . .” The Homeowners argue that “the matter is simple” because “[t]he roads at issue were publicly dedicated and are committed for public use” by virtue of the language in the plat.

However, the plat is only evidence that the Homeowners offered the streets for public dedication; it is not evidence that the City accepted that offer. See Keenan v. Robin, 709 S.W.3d 595, 602 (Tex. 2024) (“Dedication of private land for a public purpose generally requires proof of offer and acceptance.”).

We therefore turn to the Homeowners’ second contention—i.e., that the City has accepted the dedication by “allowing free flowing traffic to drive through the roads without restriction.” We agree that a city need not expressly accept a dedication and that “an implied acceptance by the public is sufficient.” Viscardi v.

4 We note that the City objected to the Homeowners’ affidavits from Willie Jones and James Anthony Fonteneaux, and the trial court sustained these objections. The City, however, does not dispute that the public has had unfettered access to the streets in Section Four. Therefore, we will discuss the impact of this fact on the trial court’s ruling.

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Pajestka, 576 S.W.2d 16, 19 (Tex. 1978). And acceptance can be satisfied by the public’s general and customary use of the street. Gutierrez. v. Cnty. of Zapata, 951 S.W.2d 831, 842 (Tex. App.—San Antonio 1997, no pet.).

However, none of the “implied acceptance” cases cited by the Homeowners involve cases in which a city has “affirmatively refused” the proposed dedication, as the City did here at the 1982 city council meeting when it unanimously voted that the streets would remain private.

Rather, we find Roberts v. Bailey, 748 S.W.2d 577, 578 (Tex. App.—

Beaumont 1988, no writ) to be instructive. In Roberts, one homeowner sued another homeowner for obstructing what he alleged was a public road. Id. at 577. As in this case, the road had been offered to the city for use as a public road. Id. at 578. However, also as in this case, the city council had refused to accept the road as a public street because it did not meet the city’s specifications. Id. Even though there was evidence that people living adjacent the road, their visitors, and garbage collectors had used the road, the court found that the road had never been accepted by the city as a public road. Id. Because the road was not public, the plaintiff homeowners had no right to require the defendant homeowner to allow them to use it. See id. at 579.

It has long been the law in Texas that private parties cannot force a city to accept a dedication of property as a public street, with the burdens of repair and

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improvement that go along with such a dedication, without the assent of the city’s authorities. See Gilder v. City of Brenham, 67 Tex. 345, 351, 3 S.W. 309, 311 (Tex. 1887). When a city has never formally accepted dedication, the city council’s vote not to do so is a legally effective refusal of the dedication. See Roberts, 748 S.W.2d at 578.

Here, the Homeowners have presented no authority, and we can find none, requiring Missouri City to somehow prevent the public from using the private streets once it has declined to accept the proposed dedication. Similarly, the Homeowners present no authority, and we can find none, that by allowing the public continued access to the private streets the City has somehow revoked its previous refusal of the dedication.

The fact that the Homeowners have permitted the public to have access to their private street is not evidence that the City has “changed its mind” and decided to accept responsibility for the streets. The City has consistently refused to perform maintenance on the streets and its position since the inception of the subdivision is that the streets in Section Four were private and the City would not “have to spend a penny” on them. And, even though the City has used the streets to provide services to the residents of Section Four, the City’s right to use the streets was granted by easement, not because the streets were public.

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Accordingly, there is no evidence, other than that the public has continued to access the streets, that the City has made an actual appropriation of the streets either through entry, use, or improvement. Being that there is no evidence that the City has taken any action that conflicts with its 1982 decision to refuse the streets’ dedication—the trial court properly granted summary judgment on the City’s request for a declaration that is had no duty regarding the maintenance or improvement of the streets in Meadowcreek Section Four.

We overrule issue two.

Evidentiary Rulings

In their multifarious third issue, we understand the Homeowners to contend that the trial court erred in overruling their hearsay objections to the City’s summary- judgment evidence. They also appear to contend that the trial court erred in sustaining the City’s objections to their own summary-judgment evidence.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion if it acts without reference to any guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must uphold the trial court’s

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evidentiary ruling if there is any legitimate basis for the ruling. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).5 We will not reverse an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment or prevented a proper presentation of the appeal. See TEX. R. APP. P. 44.1(a); Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 474 (Tex. 1998). An error in the exclusion of evidence requires reversal if it is both controlling on a material issue and not cumulative. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994).

A. The City’s Evidence The City’s summary judgment evidence in question consisted of portions of an affidavit, a copy of an ordinance, minutes of a planning-commission meeting, and minutes from two City council meetings.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d). The proponent of the evidence has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex. 2004).

5 See Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied).

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Missouri City argued that this evidence was admissible as business and public records. Rule 803(6) of the Texas Rules of Evidence—the business record exception—provides that an exception to the hearsay rule for a record of an “act, event, condition, opinion, or diagnosis” if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted business activity;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. “Business” as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.

TEX. R. EVID. 803(6).

Rule 803(8) of the Texas Rules of Evidence—the public records exception—

provides an exception to the hearsay rule for a public record if it “sets out the office’s activities” or “a matter observed while under a legal duty to report,” and “the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.” TEX. R. EVID. 803(8)(A)(i)–(ii), (B).

1. The ordinance, minutes of city planning commission meeting, and minutes from two city council meetings

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In support of its motion for summary judgment, the City presented a copy of a Missouri City ordinance adopted in 1963, and minutes from a 1973 planning commission meeting, a 1973 city council meeting, and a 1982 city council meeting. (Exhibits 1, 2, 5, and 7)

Attached to each is certification by the City Secretary, with the official city seal affixed thereto, in which she avers that the document “is a true and correct copy of an official record . . .” and that, as City Secretary, she has “legal custody of said record, and that [she] is “a lawful possessor and custodian of the records of the City of Missouri City, Texas.”

The Homeowners objected that the documents do not fall within the hearsay exception for a public record because “they do not establish the required criteria in 803(8)(A)(i)–(iii).” Specifically, the Homeowners contend that the City Secretary’s affidavits do not contain a “statement of her office’s activities, it is not a matter observed while under a legal duty to report, and it is not from a legally authorized investigation.” The Homeowners, however, do not argue either here, or at trial, that these documents were untrustworthy.

Under Rule 803, a record of a public office is not hearsay if (1) the record sets out the office’s activities and (2) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness. TEX. R. EVID. 803(8)(A)(i), (B) (emphasis added).

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Rule 803(8) creates a presumption of admissibility, with the burden being placed on the party opposing admission of the document to show its untrustworthiness. 1001 McKinney Ltd. v. Credit Suisse First Boston Morg. Capital, 192 S.W.3d 20, 28 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Because the Homeowners made no attempt to show that the source of the documents was untrustworthy—the trial court did not abuse its discretion by admitting exhibits 1, 2, 5, and 7 under the public-records exception to the hearsay rule. See Fort Bend Cent. Appraisal Dist. v. Am. Furniture Warehouse Co., 630 S.W.3d 530, 537–38 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d).6

6 To the extent that the Homeowners may be claiming double hearsay, i.e., that statements made by citizens or city employees at the 1973 planning commission meeting, the 1973 city council meeting, and the 1982 city council meeting were themselves hearsay and needed their own exception to the hearsay rule, we note that the Homeowners never made that argument in the trial court, thus it is waived. See Schmidt v. State, 612 S.W.3d 359, 370 (Tex. App.—Houston [1st Dist.] 2019, pet.

ref’d) (“Because appellant did not make a ‘hearsay within hearsay’ objection at trial, his complaint on appeal does not comport with complaint at trial and is waived).

Similarly, the Homeowners never identified each statement within the documents that contained hearsay. This too waives a hearsay-within-hearsay objection. See Flores v. City of Liberty, 318 S.W.3d 551, 560 (Tex. App.—Beaumont 2010, no pet.) (holding that blanket hearsay objection made “without identifying each part of each statement that contained hearsay and hearsay with hearsay” insufficiently specific to preserve error). And, even if preserved, the statements were not offered for the truth of the matter asserted, but to explain the actions taken by the public bodies at the time. See TEX. R. EVID. 801(d)(2) (defining hearsay as “a statement offer[ed] into evidence to prove the truth of the matter asserted in the statement”).

We also note that these documents are more than 20 years old and also admissible under the hearsay exception for ancient documents. See TEX. R. EVID. 802(16).

Statements contained in documents 20 years or older qualify as an exception to the hearsay rule, provided the documents are properly authenticated. Id.; Guthrie v.

Suiter, 934 S.W.2d 820, 825 (Tex. App.—Houston [1st Dist.] 1996, no writ).

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2. Affidavit The City also presented the affidavit of its City Engineer and Director of Public Works, Shashi Kumar. (Exhibit 4) Kumar’s affidavit states that she is responsible for the construction, maintenance, and repair of the City’s public infrastructure, including its public streets. She states: “I am familiar with the City’s subdivision regulations and with the streets located in Meadowcreek Sections One and Four and I have reviewed the City’s official records concerning the City’s approval of the subdivision plat and engineering plans for Meadowcreek Sections One and Four.” Kumar further states:

4. The City’s subdivision regulations were originally adopted in 1963 and require a minimum right-of-way width of 50 feet and a minimum pavement width of 28 feet. The streets in Meadowcreek Section One were designed and constructed to meet the City’s minimum standards for public streets and the streets in Section Four were not. The streets in Meadowcreek Section Four have a right-ofway width of 30 feet and a pavement width of 24 feet. In addition, because of the narrow right-of-way of Section Four’s streets it would not be possible to bring those streets up to the City’s minimum standards.

5. The subdivision plat for Meadowcreek Sections One and Four was approved by the City Planning Commission in 1973. The engineer who represented the developer of Meadowcreek Section One and Four told the City Council at its meeting on June 12, 1973, that the streets in Section Four were “private streets to be maintained by the subdivision; that there was no public right of way; and that the City does not regulate private streets.” At the same meeting, the City’s Mayor stated his understanding that, “the City would never have to spend a penny for maintenance of those streets.”

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6. I have reviewed the document entitled “Restrictions and Covenants Governing Property and Lots in Meadowcreek Subdivision Section Four” which were filed in the real property records of Fort Bend County, Texas on June 11, 1973. That document references the existence of private streets in the subdivision as a part of the “common property” and states that it shall be the responsibility of the Meadowcreek Patio Homeowners Association, Inc., to “perform all functions necessary for the proper maintenance, upkeep and repair of the common property.”

7. In 1982, the homeowner’s association for Meadowcreek Section Four asked the City Council to accept the streets in Section Four as public streets. In discussing the request, the City Council noted that there were “several patio home/townhouse subdivisions” in the same situation as Section Four and that if the City Council were to accept the Section Four streets for public maintenance it would have to do the same for other similar subdivisions. The City Council also noted that “it was the intention of the developer and property owners that these were private streets, and they were not built to public street standards.” The City Council voted unanimously to deny the request.

8. The City has not accepted the streets in Meadowcreek Section Four for public maintenance and has not made an actual appropriation of those streets by entry, use, or improvement because they were not built to meet the City’s minimum standards. The same is true for several other similar patio home/townhouse subdivisions in the City. However, the City provides full public services to Meadowcreek Section Four and all other neighborhoods in the City. Those services include police and fire protection, trash collection, public parks and libraries, storm drainage, zoning enforcement, and nuisance abatement. The City also provides traffic enforcement on private streets for those subdivisions that have complied with the requirements of 542.008 of the Transportation Code which requires the submission of a petition signed by 25% of the homeowners in a subdivision. (Emphasis added).

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The Homeowners objected “to paragraphs 5, 7, and 87 of [Kumar’s affidavit]

as containing hearsay statements and statements made without the witness stating their particular knowledge.” Homeowners further objected that “[t]he witness quotes third parties, who are not parties to this case, and attempts to use statements from those who are not parties to this lawsuit.”

Even if we were to agree that paragraphs 5 and 7 are not based on Kumar’s personal knowledge because they discuss events that happened decades ago,8 we would nonetheless conclude that their inclusion in Kumar’s affidavit is not reversible error. See TEX. R. APP. P. 44.1(a)(1). As we discussed in the section above, the documents referred to by Kumar in paragraphs 5 and 7—the 1973 plat and the 1973 and 1982 city council meetings were also introduced into evidence separately. The Homeowners do not object to the admission of the 1973 plat and we have already held that admission of the minutes from the 1973 and 1982 city council meetings was not an abuse of discretion.

7 Though the Homeowners also objected to paragraph 8 of Kumar’s affidavit in the trial court, on appeal they only complain about paragraphs 5 and 7. Thus, any objections they may have had about paragraph 8 are waived.

8 See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (holding affidavit not sufficiently based on personal knowledge when affiant “reviewed [historical]

documents” and “nothing in affidavit affirmatively shows how [affiant] could possibly have personal knowledge about events occurring in the 1840s”).

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Because the evidence contained in paragraphs 5 and 7 was properly admitted elsewhere, its inclusion here could not be harmful error. See Rockwall Commons. Assocs., Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500, 514 (Tex. App.—El Paso 2010, no pet.) (holding that any error in admission of affidavit was harmless “because the documents attached thereto prove and support the same facts”). B. The Homeowners’ Evidence The Homeowners also complain that the trial court erred in sustaining the City’s objections to their summary-judgment evidence—namely, certain affidavits, tax records, and an email chain.

1. Unsworn Declarations In response to the City’s motion for summary judgment, the Homeowners presented two unsworn declarations—one from Willie Jones and one from James Anthony Fonteneaux. Fonteneaux stated in his unsworn declaration that he had “witnessed public vehicular traffic travel from outside of the Meadowcreek subdivision into the subdivision,” that “[p]ublic services also used Meadowcreek’s roadways[,]” and that “public vehicular use of the Meadow creek roads and the service calls’ use of Meadowcreek’s roads has been consistent and uninterrupted[.]” Jones, in his unsworn declaration, points to the statement in the plat that the streets were public and states the City “has failed and refuses to recognize the public designation of . . . roads, alleys, parts, and easements as it has for other sections in

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the Meadowcreek Subdivision” and “[s]ince the roads, alleys, parks, and easements . . . are all dedicated to public use and are indisputably used and relied on by the public, [the Homeowners] are entitled to equal rights and treatment.”

Missouri City objected that these unsworn declarations “do not contain any evidence that, if true, would contradict the official records of the City Council.” It further argued that the unsworn declarations contained “no factual allegations regarding any actions that the City Council has taken to ‘make an actual appropriation of the streets[,]’” and that, as a result, the declarations are conclusory.

We agree with the City. Jones’s declaration conclusorily states that the streets are public. And, the facts alleged in the declarations, even if true, do not support the legal conclusion that the City has accepted or appropriated the streets at issue in this case. An affidavit is conclusory if the facts in the affidavit do not support the proffered legal conclusions. See City of Stephenville v. Belew, 692 S.W.3d 347, 374 (Tex. App.—Eastland 2004, pet. denied). Therefore, the trial court did not abuse its discretion by refusing to admit the unsworn declarations.

However, even if the trial court erred in excluding the unsworn declarations, the Homeowners cannot show that such error “probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a)(1). As we held above, evidence that the City did nothing to block public access to the streets and that the City used the

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streets to provide services to the citizens of Section Four after refusing the streets for public dedication is not evidence that the City had accepted the streets as public.

2. Tax Records The Homeowners also presented printouts purporting to be records from the Fort Bend County Appraisal District stating that the City owns the streets in Meadowcreek Section Four. The City objected that the documents were not self- authenticating and should be excluded because they were not sealed or certified. (CR 192-193) We agree.

The documents at issue were not self-authenticating under Texas Rule of Evidence 902(1) because they were not sealed and signed. TEX. R. EVID. 902(1). Nor were they self-authenticating under Texas Rule of Evidence 902(2) because they were not signed and certified. See id. 902(2).

Although documents that meet neither requirement may nonetheless be admissible as certified copies of public records or business records accompanied by an affidavit, both of those methods require an affidavit from the custodian of the records. See id. 902(4)(A), (10)(B); see also Fullick v. City of Baytown, 820 S.W.2d 943, 944–45 (Tex. App.—Houston [1st Dist.] 1991, no writ) (holding tax documents admissible under Rule 902(10) when accompanied by affidavit from deputy tax collector certifying documents as true and correct).

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Here, there is nothing purporting to authenticate the documents under any section of Rule 902. There is no seal, certification, or affidavit purporting to authenticate the printouts at all. As such, the trial court did not abuse its discretion by refusing to admit the documents purporting to be Fort Bend County Appraisal District documents.

3. Email Chain The Homeowners also attached a portion of an email chain, in which Odis Jones, City Manager, stated that he was “willing to recommend to the Council that the road be grandfathered into the City” so that it could receive “basic routine maintenance.” Jones also noted, however, that “right now we can’t as this is a private road” and “it’s completely up to the City Council as they make governing body decisions of which this is.”

The City objected that “[t]he two incomplete copies of email strings submitted by [the Homeowners] as exhibits to their Response do not support their arguments.” Though the basis of the City’s objection is unclear, we hold that, even if the trial court erroneously excluded these emails, the error did not “probably cause the rendition of an improper judgment.” See TEX. R. APP. 44.1(a)(1). Jones’s email states that, while he was willing to recommend to the City that it accept the streets, he concluded that it was the Council’s decision, not his. His email also states that “this

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is a private road.” It is difficult to see how admitting this email would have changed the outcome of the case in the Homeowners’ favor.

Having disposed of the Homeowners’ evidentiary issues, we overrule issue three.

Conclusion

For all of the reasons above, we affirm the trial court’s judgment in all things.

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Morgan and Dokupil.

Footnotes

1. NO. 01-23-00700-CV ——————————— WILLIE JONES AND JEANETTE CRUMMEDYO, Appellants V. CITY OF MISSOURI CITY, TEXAS, Appellee On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 22-DCV-292916 MEMORANDUM OPINION In this case, we consider whether governmental immunity bars a homeowner’s lawsuit against a city for a declaration that streets in a community are public—and whether the city may nonetheless bring a declaratory judgment action seeking the same relief.