City of Killeen, Texas and Ground Game Texas v. Bell County, Texas; The 27th Judicial District Attorney's Office; And the Bell County Attorney's Office

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00316-CV

City of Killeen, Texas and Ground Game Texas, Appellants

v.

Bell County, Texas; the 27th Judicial District Attorney’s Office; and

the Bell County Attorney’s Office; Appellees

FROM THE 146TH DISTRICT COURT OF BELL COUNTY

NO. 23DCV338257, THE HONORABLE RICK MORRIS, JUDGE PRESIDING

MEMORANDUM OPINION

The City of Killeen, Texas (the City), and Ground Game Texas appeal from the

trial court’s denial of their pleas to the jurisdiction seeking to dismiss the lawsuit filed by Bell

County, Texas; the 27th Judicial District Attorney’s Office (the DA’s Office); and the Bell

County Attorney’s Office (the CA’s Office).1 Appellees’ lawsuit challenges the constitutionality

and validity of the City’s ordinance decriminalizing misdemeanor marijuana possession. For the

following reasons, we affirm the trial court’s order denying appellants’ plea to the jurisdiction.

1

The live petition also purports to name the State of Texas as a plaintiff, but the State is

not in fact a plaintiff, evidenced by its filing of an amicus curiae brief in this Court. See Connor

v. McCormick, No. 03-18-00813-CV, 2020 WL 102034, at *5 (Tex. App.—Austin Jan. 9, 2020,

pet. denied) (mem. op.) (“An amicus curiae is not a party to the suit and may only make

suggestions to the court; the court can only take actions that it could have taken in the absence of

the suggestions from the amicus curiae.”). The State filed its own lawsuit against the City on

January 1, 2024, raising the same challenges as in this suit; that lawsuit is currently pending in

Bell County District Court.

BACKGROUND

This case concerns the City’s adoption, by ordinance codified in the City’s

Code of Ordinances, of a proposition approved by the City’s voters on November 8, 2022, that

decriminalizes the possession of misdemeanor amounts of marijuana. Among the Ordinance’s

provisions are the following:

(a) Killeen police officers shall not issue citations or make arrests for class A or

class B misdemeanor possession of marijuana offenses, except in the limited

circumstances described in (b).

(b) The only circumstances in which Killeen police officers are permitted to issue

citations or make arrests for class A or class B misdemeanor possession of

marijuana are when such citations or arrests are part of (1) the investigation of

a felony level narcotics case that has been designated as a high priority

investigation by a Killeen police commander, assistant chief of police, or chief

of police; and/or (2) the investigation of a violent felony.

(c) In every instance other than those described in (b), if a Killeen police officer

has probable cause to believe that a substance is marijuana, an officer may

seize the marijuana. If the officer seizes the marijuana, they must write a

detailed report and release the individual if possession of marijuana is the sole

charge.

(d) Killeen police officers shall not issue any charge for possession of marijuana

unless it meets at least one (1) of the factors described in (b).

Killeen, Tex., Code § 22-80; see also id. §§ 22-81–22-86 (containing related provisions and

together comprising Police, Article V, Chapter 22 of Killeen City Code).2

2

Other substantive provisions of the Ordinance prohibit the issuance of citations for

Class C misdemeanor possession of drug residue or drug paraphernalia in lieu of a possession-of-

marijuana charge, see Killeen, Tex., Code § 22-81, and the use of City funds or personnel to

conduct THC testing of any cannabis-related substance to determine whether it meets the legal

definition of marijuana under state law except in enumerated circumstances, see id. § 22-82. It

also requires the City Manager and Chief of Police to ensure that police officers receive adequate

training concerning the Ordinance’s provisions. See id. § 22-84.

2

On December 22, 2022, the Bell County Commissioners unanimously authorized

the Bell County Attorney to file suit against the City on behalf of Bell County (the County). On

April 11, 2023, the Bell County Attorney, joined by the Bell County District Attorney, filed an

original petition against the City, naming as plaintiffs the County and the State of Texas. In the

lawsuit, the plaintiffs pleaded for declaratory relief under the Uniform Declaratory Judgments

Act (UDJA) determining that the Ordinance is invalid and unconstitutional. See Tex. Civ. Prac.

& Rem. Code §§ 37.004(a) (relevantly providing that person whose rights are affected by

ordinance may obtain declaration of their rights thereunder and have determined “any question

as to construction or validity” of ordinance), .006(b) (requiring municipality to be made party to

proceeding involving validity of ordinance). The plaintiffs additionally pleaded for temporary

and permanent injunctive relief enjoining enforcement of the Ordinance.

Among other grounds purportedly supporting invalidity, the plaintiffs alleged that

the Ordinance is preempted by Texas Local Government Code Section 370.003. See Tex. Loc.

Gov’t Code § 370.003 (prohibiting governing body of municipality from adopting policy “under

which the entity will not fully enforce laws relating to drugs”); see also, e.g., Tex. Health &

Safety Code § 481.121 (making possession of marijuana either Class A or B misdemeanor

offense depending on amount possessed). Plaintiffs alleged that the Ordinance—forbidding City

police officers from issuing citations or making arrests for Class A or B misdemeanor marijuana

possession, except under enumerated circumstances, and from signing complaints in such

cases—cannot be reconciled with state laws such as Local Government Code Section 370.003

and Health and Safety Code Section 481.121, among others. Plaintiffs additionally alleged that

the Ordinance is inconsistent with provisions of the Texas Code of Criminal Procedure,

including Article 2.13, requiring peace officers to seize contraband. See Tex. Code Crim. Proc.

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art. 2.13(b)(1), (4) (requiring officers to “interfere without warrant to prevent or suppress crime”

and “arrest offenders without warrant in every case where the officer is authorized by law”).

The City filed a combined pleading containing special exceptions, a plea to the

jurisdiction, and an original answer. In its plea to the jurisdiction and supplement thereto, the

City contended that (1) it enjoys governmental immunity from suit, and the plaintiffs had not

alleged a valid waiver for their claims seeking injunctive relief; (2) each of the plaintiffs lacks

standing; (3) none of the plaintiffs has authority to bring civil claims in the name of the State;

and (4) plaintiffs’ failure to verify their petition is a fatal defect to their claims for injunctive

relief. Plaintiffs did not file a response but instead filed an amended petition, adding as plaintiffs

the DA’s Office and the CA’s Office. In their amended petition, the plaintiffs represented that

they served the Texas Attorney General with a copy of the pleading, as required by the UDJA.

See Tex. Civ. Prac. & Rem. Code § 37.006(b) (requiring that Attorney General be served with

copy of any proceeding that involves constitutionality of statute or ordinance and that Attorney

General “is entitled to be heard”). The Attorney General did not intervene in the case. Ground

Game intervened as a defendant and filed a plea to the jurisdiction, in which it asserted that none

of the plaintiffs has standing and that plaintiffs’ principal complaints are political rather than

legal and are not redressable in a court of law.3 The trial court denied the City’s and Ground

Game’s respective pleas to the jurisdiction, and this accelerated appeal followed.

3

According to the declaration of Ground Game’s executive director, Ground Game is a

“nonprofit advocacy organization that has its headquarters in Austin, Texas, and operates

programs across the state,” working with “community-based organizations to develop ballot

initiative campaigns that focus on popular, progressive issues.”

4

DISCUSSION

A plea to the jurisdiction challenges the court’s authority to decide a case,

inclusive of issues such as standing. Heckman v. Williamson County, 369 S.W.3d 137, 149–50

(Tex. 2012). We review a trial court’s ruling on subject-matter jurisdiction de novo. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In determining a plea

to the jurisdiction, the court looks to the live pleadings and may also consider evidence submitted

to negate the existence of jurisdiction. Heckman, 369 S.W.3d at 150. A plaintiff’s pleadings

are liberally construed, and all factual assertions are taken as true but, nonetheless, a plea to

the jurisdiction must be granted if the plaintiff’s pleadings affirmatively negate the existence

of jurisdiction or if there is undisputed evidence negating the existence of the court’s

jurisdiction. Id.

In four issues, the City contends that (1) none of the appellees articulated a

particularized harm to support standing; (2) each appellee lacks capacity and authority to bring

this lawsuit; (3) appellees failed to meet their burden to establish waiver of governmental

immunity as to injunctive relief; and (4) appellees’ defective jurat and verification of their

petition were fatal to their claims. In two issues, Ground Game contends that the trial court

erred in ruling that appellees (1) established a waiver of the City’s governmental immunity and

pleaded a viable facial challenge to the Ordinance and (2) have standing to challenge the

Ordinance because they have not identified an actual or threatened injury-in-fact.

As a home-rule municipality, the City possesses the “full power of local self-

government.” City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586, 592 (Tex. 2018)

(quoting Tex. Loc. Gov’t Code § 51.072(a)). But Article XI, Section 5(a) of the Texas

Constitution provides that a home-rule city ordinance may not “contain any provision

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inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature

of this State.” Id. (quoting Tex. Const. art. XI, § 5(a)). Thus, the legislature has the authority to

preempt local regulations such as ordinances, see id. at 593, and the substantive dispute here is

whether the legislature has preempted the Ordinance with its applicable penal laws. However,

because of the procedural posture—an interlocutory appeal from the denial of a governmental

unit’s plea to the jurisdiction—the resolution of that substantive dispute is for another day.

See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing interlocutory appeal of order

granting or denying governmental unit’s plea to jurisdiction); Texas A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007) (stating that courts must strictly construe

Section 51.014(a) as narrow exception to general rule that only final judgments are appealable).

Standing

The City and Ground Game challenge each plaintiff’s standing, the City in its

first issue and Ground Game in its second issue. Standing is a component of subject-matter

jurisdiction, and we review questions of standing de novo. Farmers Tex. Cnty. Mut. Ins. v.

Beasley, 598 S.W.3d 237, 240 (Tex. 2020). Standing is implicit in the concept of subject-matter

jurisdiction, and subject-matter jurisdiction is essential to the authority of a court to decide a

case. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

A plaintiff has standing when it is personally aggrieved, regardless of whether it

is acting with legal authority. Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist.,

46 S.W.3d 880, 884 (Tex. 2001). Standing requires “a concrete injury to the plaintiff and a real

controversy between the parties that will be resolved by the court.” Heckman, 369 S.W.3d

at 154. A plaintiff does not lack standing simply because some other legal principle may prevent

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it from prevailing on the merits; rather, a plaintiff lacks standing if its “claim of injury is too

slight for a court to afford redress.” Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696

(Tex. 2021) (quoting DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008)). The

threshold inquiry in a question of standing “in no way depends on the merits of the [plaintiff’s]

contention that particular conduct is illegal.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 7

(Tex. 2011) (quotations omitted).

The test for standing in most cases requires the plaintiff to show that (1) the

plaintiff was personally injured, (2) the alleged injury is “fairly traceable” to the defendant’s

conduct, and (3) the alleged injury is “likely to be redressed by the requested relief.” See

Heckman, 369 S.W.3d at 154–55. To establish standing under the UDJA, a plaintiff must show a

particularized, legally protected interest that is actually or imminently affected by the alleged

harm. Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—Austin 2009,

no pet.); see Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882

(Tex. App.—Austin 2010, pet. denied) (“Under the UDJA, SOS Alliance must establish standing

by alleging an injury in fact to a ‘legally protected interest which is . . . concrete and

particularized.’” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also

Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995) (“[T]o challenge a

statute, a plaintiff must [both] suffer some actual or threatened restriction under the statute” and

“contend that the statute unconstitutionally restricts the plaintiff’s rights.”). Here, the alleged

actionable “harm” is the Ordinance, which essentially prohibits City police officers from

enforcing the State’s misdemeanor marijuana laws.

Generally, courts must analyze the standing of each individual plaintiff to bring

each individual claim he or she alleges. Heckman, 369 S.W.3d at 152; see also Patel v. Texas

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Dep’t of Licensing & Regul., 469 S.W.3d 69, 77 (Tex. 2015) (citing Heckman, 369 S.W.3d

at 152). However, “where there are multiple plaintiffs in a case, who seek injunctive or

declaratory relief (or both), who sue individually, and who all seek the same relief[,] . . . the

court need not analyze the standing of more than one plaintiff—so long as that plaintiff

has standing to pursue as much or more relief than any of the other plaintiffs.” Heckman,

369 S.W.3d at 152 n.64. The reasoning is simple: if one plaintiff prevails on the merits, the same

prospective relief will issue regardless of the standing of the other plaintiffs. Id.; see also

Andrade, 345 S.W.3d at 6 (“Because the voters seek only declaratory and injunctive relief, and

because each voter seeks the same relief, only one plaintiff with standing is required.”). We thus

consider whether any plaintiff has alleged a recognizable legally protected interest or right that

is affected by the Ordinance.

We begin by considering whether the DA’s Office has standing because we find

the answer dispositive of the City’s first issue and Ground Game’s second. The DA’s Office

alleged that it has standing because the Ordinance interferes with its prosecutorial discretion,

“chill[ing] investigation into marijuana drug offenses” and thus “guarantee[ing] that in many

cases such offenses are never reported or investigated, . . . imped[ing] the prosecuting attorneys

from weighing any factors to exercise the[ir] discretion to prosecute.” The DA’s Office alleged

that although the Ordinance targets misdemeanor-level offenses, it impacts felony cases because

“felony prosecutors weigh prior arrests and convictions when determining whether to charge

new offenses, as well as what the punishment recommendation should be on an existing case.”

It alleged that “felony prosecutors use new arrests on any violation of the law to make

recommendations regarding bond,” and that without such arrests the prosecuting attorneys’

discretion to make alternative recommendations with respect to persons on community

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supervision or pretrial bond—such as sanctions, drug treatment, or more intensive supervision—

will be hampered. Finally, the DA’s Office alleged that the Ordinance impedes its prosecutorial

discretion by prohibiting City police officers from making arrests for misdemeanor levels of

marijuana possession and “deterring those same officers from even preparing reports,” depriving

the prosecuting attorneys from having prior-arrest information when carrying out their

prosecutorial duties.

The DA’s Office correctly observes that its prosecutorial discretion derives from

its primary duty to “see that justice is done” and to enforce the State’s criminal laws. See Tex.

Code Crim. Proc. art. 2.01 (“It shall be the primary duty of all prosecuting attorneys . . . not to

convict, but to see that justice is done.”); Meshell v. State, 739 S.W.2d 246, 254 (Tex. Crim.

App. 1987) (“Although the duties of district or county attorneys are not enumerated in Article V,

§ 21 [of the Texas Constitution], our courts have long recognized that, along with various civil

duties, their primary function, is ‘to prosecute the pleas of the state in criminal cases.’” (quoting

Brady v. Brooks, 89 S.W. 1052, 1056 (Tex. 1905)). An “obvious corollary” to this duty is the

county and district attorneys’ “exclusive prosecutorial function” and discretion, which—under

the separation-of-powers doctrine—the legislature “may not remove or abridge” absent an

express constitutional provision. Meshell, 739 S.W.2d at 254–55. Similarly, the office of a

district attorney is constitutionally created and protected; thus, the district attorney’s authority

“cannot be abridged or taken away.” Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim. App.

2016) (citing State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990)). If the

legislature may not abridge such prosecutorial discretion through legislation, it follows that

neither may the City through the passage of ordinances. Yet this is what the DA’s Office alleges

the City has done.

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Because we are not deciding the merits of this case, see Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000), and must liberally construe the plaintiffs’ pleadings and

take as true the allegations therein, see Heckman, 369 S.W.3d at 150, we confine our analysis to

determining whether the DA’s Office has sufficiently alleged that the Ordinance affects or

impairs one of its legally protected rights or interests. See Salazar, 304 S.W.3d at 906. Given

that district and county attorneys have a legal duty to prosecute violations of the State’s

criminal laws, and in light of the Court of Criminal Appeals’ prohibition on the abridgement of

prosecutors’ discretion and functions absent constitutional amendment, see Meshell, 739 S.W.2d

at 254–55, we conclude that the DA’s Office has sufficiently established standing. That is, it has

identified a legally protected interest—its prosecutorial authority, discretion, and duty—that is

actually or imminently affected or impeded by the Ordinance, in that the Ordinance eliminates an

entire swath of misdemeanor drug arrests and citations from its purview, frustrating its ability

to carry out its duty and exercise its discretion. See Salazar, 304 S.W.3d at 906. Moreover,

appellants have not cited evidence in the record negating the DA’s Office’s allegations of such

harm.4 The DA’s Office therefore has standing to maintain this UDJA action challenging

the Ordinance. Furthermore, as explained above, because we have determined that the DA’s

Office has standing, we need not consider whether the remaining appellees have standing. See

Heckman, 369 S.W.3d at 152 n.64. We accordingly overrule the City’s first issue and Ground

Game’s second issue.

4

Appellants cite evidence showing that City police officers have made some

misdemeanor marijuana-possession arrests since the Ordinance took effect, but that evidence

does not refute the DA’s Office’s allegations that the Ordinance itself interferes with its

prosecutorial discretion and duties by prohibiting police officers from making arrests or

issuing citations for such violations except in enumerated circumstances, as the officers are

presumed to follow applicable laws, necessarily including the Ordinance. See Williams v. Lara,

52 S.W.3d 171, 184–85 & 185 n.8 (Tex. 2001) (people are presumed to “follow the law”).

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Capacity

In its second issue, the City contends that each appellee lacks capacity, or legal

authority, to bring this suit on behalf of the State and that the DA’s Office and CA’s Office both

lack capacity to bring civil actions themselves because they are merely “departments” within

the City and County, respectively. While capacity is a requirement for a party to bring a lawsuit,

see Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005), capacity does not

implicate subject-matter jurisdiction and therefore does not constitute a proper ground on

which to grant a plea to the jurisdiction, see Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763,

779 (Tex. 2020); see also Travis Cent. Appraisal Dist. v. Texas Disposal Sys. Landfill, Inc.,

684 S.W.3d 470, n.2 (Tex. App.—Austin 2022) (mem. op., on motion for reh’g) (“To the extent

that the district court granted the Landfill’s second plea to the jurisdiction and dismissed the

cause on the ground that the chief appraiser lacked capacity to appeal the ARB order, we

conclude that it erred.”), aff’d, 694 S.W.3d 752 (Tex. 2024). Because the issue of capacity does

not bear on the question of whether the trial court erred in denying appellants’ pleas to the

jurisdiction and would not support a reversal of the trial court’s ruling even were the City’s

capacity arguments meritorious, we lack appellate jurisdiction to address the City’s second

issue in this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Koseoglu,

233 S.W.3d at 841.

Waiver of governmental immunity

In its first issue, Ground Game contends that appellees failed to establish waiver

of the City’s immunity as to their facial challenge to the Ordinance; in its third issue, the City

contends that appellees failed to establish waiver of its governmental immunity as to their claims

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for injunctive relief. As to Ground Game’s issue, it is established under Texas law that the

UDJA waives governmental immunity of a municipality when there is a challenge to the validity

of an ordinance, including to the ordinance’s constitutionality. See Tex. Civ. Prac. & Rem. Code

§§ 37.004, .006(b) (providing that municipality must be made party to suit involving validity of

ordinance and that attorney general must be served with copy of pleading if ordinance is alleged

to be unconstitutional); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (“For

claims challenging the validity of ordinances or statutes . . . the [UDJA] requires that the relevant

governmental entities be made parties, and thereby waives immunity.”); Gatesco Q.M., Ltd. v.

City of Houston, 333 S.W.3d 338, 347–48 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“If a

party joins a governmental entity and seeks a declaration that an ordinance or statute is invalid,

based on either constitutional or nonconstitutional grounds, immunity from suit is waived.”). We

thus overrule Ground Game’s first issue.

As to the City’s third issue, the UDJA expressly authorizes “further relief based

on a declaratory judgment . . . whenever necessary or proper.” See Tex. Civ. Prac. & Rem. Code

§ 37.011. Courts have construed the UDJA’s limited waiver of immunity to authorize parties

to bring claims against a governmental unit for injunctive relief concurrently with claims for

declaratory relief. See Patel, 469 S.W.3d at 74, 77 (holding that, where plaintiffs sought both

declaratory relief and permanent injunction under UDJA barring state agencies and their officials

from enforcing alleged unconstitutional statute, sovereign immunity was waived); City of Killeen

v. Oncor Elec. Delivery Co., No. 03-23-00063-CV, __ S.W.3d. __, 2025 WL 648521, at *11

(Tex. App.—Austin Feb. 28, 2025, no pet.) (holding that governmental immunity was waived for

alleged constitutional violations and that plaintiff could seek declaratory and injunctive relief

concurrently); Hays County v. Hays Cnty. Water Planning P’ship, 106 S.W.3d 349, 359 (Tex.

12

App.—Austin 2003, no pet.) (holding that UDJA waived County’s immunity for Partnership’s

suit seeking declaratory and injunctive relief based on allegations that commissioner’s court

acted illegally). Accordingly, the UDJA waives the City’s immunity as to appellees’ claims for

injunctive relief, and we overrule the City’s third issue.

Defective jurat and verification

In its fourth issue, the City contends that appellees’ “sole requested relief” in the

trial court was injunctive; that appellees failed to verify their pleadings, attempting to verify

them solely with a defective jurat; and that, therefore, appellees “failed to establish or invoke

jurisdiction.” See Tex. R. Civ. P. 682 (“No writ of injunction shall be granted unless the

applicant therefor shall present his petition to the judge verified by his affidavit and containing a

plain and intelligible statement of the grounds for such relief.”). However, injunctive relief was

not the only relief sought by appellees. Rather, appellees expressly pleaded for declaratory relief

in their live petition. With respect to the “defective jurat” and “unverified pleading” argument,

the City has not cited any authority determining that an unverified pleading seeking injunctive

relief deprives a trial court of jurisdiction, nor have we found any. Cf. City of Houston v.

Carlson, 393 S.W.3d 350, 356–57 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (determining

that provision of Local Government Code authorizing lawsuit to challenge zoning board’s

decision by filing of verified petition was not jurisdictional requisite); Reagan v. NPOT Partners

I, L.P., No. 06-08-00071-CV, 2009 WL 763565, at *2–3 (Tex. App.—Texarkana Mar. 25, 2009,

pet. dism’d w.o.j.) (mem. op.) (holding that defective verification of sworn complaint for

eviction, required by Rule of Civil Procedure 739, did not deprive trial court of jurisdiction). In

other words, even if appellees’ pleading is ineffective to support its request for injunctive relief,

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whether a pleading is verified does not implicate subject-matter jurisdiction. We overrule the

City’s fourth issue.

CONCLUSION

Having determined that the trial court did not err in denying appellants’ pleas to

the jurisdiction, we affirm its order.

__________________________________________

Karin Crump, Justice

Before Chief Justice Byrne, Justices Theofanis and Crump

Affirmed

Filed: April 16, 2025

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