The State of Texas, by and Through the Office of the Attorney General of Texas v. City of San Marcos; Jane Hughson, Mayor of San Marcos; Matthew Mendoza, Saul Gonzales, Alyssa Garza, Shane Scott, Lorenzo Gonzalez, and Amanda Rodriguez, Members of the City Council of San Marcos; Stephanie Reyes, City Manager of San Marcos; And Stan Standridge, Chief of Police of San Marcos; In Their Official Capacities

Affirmed as Modified in Part; Reversed and Remanded in Part and Opinion

filed April 17, 2025.

In The

Fifteenth Court of Appeals

NO. 15-24-00084-CV

THE STATE OF TEXAS, BY AND THROUGH THE OFFICE OF THE

ATTORNEY GENERAL OF TEXAS, Appellant

V.

CITY OF SAN MARCOS; JANE HUGHSON, MAYOR OF SAN MARCOS;

MATTHEW MENDOZA, SAUL GONZALES, ALYSSA GARZA, SHANE

SCOTT, LORENZO GONZALEZ, AND AMANDA RODRIGUEZ,

MEMBERS OF THE CITY COUNCIL OF SAN MARCOS; STEPHANIE

REYES, CITY MANAGER OF SAN MARCOS; AND STAN STANDRIDGE,

CHIEF OF POLICE OF SAN MARCOS; IN THEIR OFFICIAL

CAPACITIES, Appellees

On Appeal from the 207th District Court

Hays County, Texas

Trial Court Cause No. 24-0267

OPINION

A fundamental principle of Texas constitutional law is that state law preempts

contrary city ordinances. Tex. Const. art. XI, § 5(a) (“[N]o . . . ordinance passed

under [a city] charter shall contain any provision inconsistent with the Constitution

of the State, or of the general laws enacted by the Legislature of this State.”). The

Texas Local Government Code prohibits the “governing body of a municipality, . . .

municipal police department, municipal attorney, county attorney, district attorney,

or criminal district attorney” from “adopt[ing] a policy under which the entity will

not fully enforce laws relating to drugs, including Chapters 481 and 483, Health and

Safety Code, and federal law.” Tex. Loc. Gov’t Code § 370.003. San Marcos,

however, has passed a local ordinance prohibiting its police officers from issuing

citations and making arrests for certain low level marijuana offenses.

The State of Texas sued the City of San Marcos and various City officials

under the Uniform Declaratory Judgment Act (UDJA) for a declaration that state

law preempts the ordinance and for injunctive relief. In two issues, the State of Texas

appeals the trial court’s dismissal of its suit for lack of jurisdiction and the trial

court’s denial of the State’s request for a temporary injunction. We hold that

Appellees, with the exception of Stephanie Reyes, the City Manager, are not immune

from the State’s declaratory judgment action. We further hold that the trial court

abused its discretion in denying some—but not all—of the relief sought in the State’s

request for a temporary injunction, and we remand for entry of an appropriate

temporary injunction.

BACKGROUND

San Marcos’s City Charter reserves for the people of the city the “power of

direct legislation by initiative” to “propose any ordinance or repeal any ordinance

not in conflict with this Charter, the State Constitution, or the state laws.” Through

a ballot initiative process, the citizens of the City of San Marcos placed Proposition

A on the November 8, 2022 general election ballot. After the voters approved the

proposition with 81.86 percent voting in favor, the City Council canvassed and

2

confirmed the vote totals.

The City of San Marcos, through its City Council, then codified and published

the ordinance as Article 4, Section 54.101–.107 of the city ordinances (the

Ordinance). In pertinent part, the Ordinance reads as follows:

Sec. 54.101. – Ending citations and arrests for misdemeanor possession

of marijuana.

(a) San Marcos 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

subsection (b).

(b) The only circumstances in which San Marcos 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]

San Marcos 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 subsection (b), if

a San Marcos 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) San Marcos police officers shall not issue any charge for

possession of marijuana unless it meets one or both of the factors

described in subsection (b).

The Ordinance further restricts (1) issuance of citations for possession of

“drug residue” or drug paraphernalia; (2) use of city funds to test the level of

tetrahydrocannabinol (THC) of cannabis; and (3) the use of the odor of marijuana or

hemp as probable cause for search or seizure. The Ordinance requires the City

Manager and Police Chief to ensure that San Marcos police officers receive training

concerning the provisions of the Ordinance. The Ordinance states that any San

Marcos police officer found in violation of the Ordinance may be subjected to

3

discipline as provided by the Local Government Code or city policy. The Ordinance

also requires the City Manager or their designee to present to the City Council a

report concerning the City’s implementation of the Ordinance.

After the City Council “considered, approved, and adopted” the Ordinance,

Chief of Police Stan Standridge issued a “Memorandum Regarding Misdemeanor

Marijuana Enforcement” (Memorandum) to provide guidance regarding the

Ordinance to police employees. The Police Chief noted that the Ordinance does not

“discriminate based on age, so it presumably exempts juveniles found to be in

possession of marijuana,” and instructed officers to investigate potential felonies for

certain amounts of marijuana possessed in drug free zones or in other circumstances.

Continuing, the Memorandum stated that although “Texas law has long

considered the odor of marijuana sufficient to constitute probable cause to search a

person . . . If a misdemeanor amount of marijuana is solely discovered, the voter-

approved ordinance would not permit officers to issue citations or make arrests.” As

to police officer discipline, the Memorandum quoted the Ordinance stating that a

police officer may be subject to discipline for violating the Ordinance.

The Police Chief later reported to the City Council that despite recognizing

that the Ordinance was in “conflict with State law ([Tex. Local Govt Code] Sec.

370.003)” the Police Department nonetheless “operated in compliance with [the

Ordinance].”

The State of Texas filed suit for declaratory judgment and injunctive relief

against the City of San Marcos, its Mayor and City Council members, its City

Manager, and its Police Chief. 1 The State asserted claims under the UDJA and the

0F

ultra vires doctrine, alleging that the adoption and enforcement of the Ordinance

1

The State sued the individuals in their official capacities.

4

violated Article XI, section 5 of the Texas Constitution and Section 370.003 of the

Local Government Code. The State further sought a temporary injunction to preserve

the status quo while its claims proceeded and asked the trial court to issue a

declaratory judgment that the Ordinance and any corresponding police department

general order or directive are ultra vires and void.

Specifically, the State alleged the Ordinance conflicts with Section 370.003

of the Local Government Code:

The governing body of a municipality, the commissioners court of a

county, or a sheriff, municipal police department, municipal attorney,

county attorney, district attorney, or criminal district attorney may not

adopt a policy under which the entity will not fully enforce laws relating

to drugs, including Chapters 481 and 483, Health and Safety Code, and

federal law. 2

1F

Tex. Loc. Gov’t Code § 370.003.

Appellees filed a plea to the jurisdiction in which they asserted the trial court

lacked jurisdiction over the State’s claims. Appellees asserted that governmental

immunity shielded the City from suit and the individually named City Officials were

protected by governmental immunity. Specifically, Appellees asserted the State had

not pleaded a viable constitutional claim under the UDJA because the State could

not meet its burden to demonstrate that Section 370.003 of the Local Government

Code preempts or conflicts with the Ordinance. Appellees further asserted that the

State did not adequately plead an ultra vires claim against the individual defendants

because the State identified no unlawful act taken by the individuals. Appellees

alleged the Ordinance was passed by the voters of San Marcos without any action

2

Possession of between two and four ounces of marijuana is a Class A misdemeanor and

possession of less than two ounces is a Class B misdemeanor. Tex. Health & Safety Code

§ 481.121. Possession of drug paraphernalia is a Class C misdemeanor. Tex. Health & Safety Code

§ 481.125(d).

5

by City Officials. Appellees further asserted that Section 370.003 prohibits a

governing body from adopting a policy to “fully enforce” drug laws. According to

Appellees, because neither the City Council, nor the Police Chief, have adopted a

policy not to fully enforce drug laws, Appellees have not violated Section 370.003

or the Texas Constitution.

At a hearing on Appellees’ plea to the jurisdiction and the State’s application

for temporary injunction, Police Chief Standridge testified that he was the final

arbiter of policy for the San Marcos Police Department. He acknowledged that his

policy-making authority prohibited promulgation of any policy that would conflict

with the City’s charter, the Constitution, or state law. Before the Ordinance was

adopted, the City of San Marcos had adopted a “cite and release” procedure for low

level marijuana possession. 3 Standridge explained that he wrote the Memorandum

2F

to inform police officers of the Ordinance’s language and to provide guidance on

how to proceed under the Ordinance. Because the cite and release practice was still

in force in Hays County, Standridge wanted to clarify to police officers that the

Ordinance no longer allowed a citation to be issued for misdemeanor amounts of

marijuana.

Standridge testified that no other law enforcement agency in Hays County

follows a similar procedure to that required by the Ordinance. Standridge opined that

the Ordinance conflicts with Local Government Code Section 370.003. However,

San Marcos police officers are not permitted to ignore the Ordinance. If police

officers ignore the Ordinance, they could be subject to disciplinary proceedings.

Standridge did not believe he had the authority to issue a directive telling police

officers they did not have to comply with the Ordinance.

3

Peace officers may issue a citation instead of taking a person before a magistrate if a

person is accused of committing a Class C misdemeanor. Tex. Code Crim. Pro. art. 14.06(b).

6

Following the hearing, the trial court granted the Appellees’ plea to the

jurisdiction and denied the State’s application for temporary injunction.

ANALYSIS

In two issues, the State challenges (1) whether Appellees have immunity from

the State’s UDJA action challenging the City’s adoption and implementation of the

Ordinance; and (2) whether the trial court abused its discretion in denying the State’s

request for temporary injunction.

I. Standard of Review

A plea questioning the trial court’s jurisdiction raises a question of law, which

is reviewed de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When

considering a plea to the jurisdiction, our analysis begins with the live pleadings.

Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). We first determine

if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction

to hear the case. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). In doing so, we construe the pleadings liberally in favor of the plaintiff,

and unless challenged with evidence, we accept all allegations as true. Id. at 226–

27. The plea must be granted if the plaintiff’s pleadings affirmatively negate the

existence of jurisdiction or if the defendant presents undisputed evidence that

negates the existence of the court’s jurisdiction. Heckman, 369 S.W.3d at 150.

When a “jurisdictional challenge implicates the merits of the [plaintiff’s]

cause of action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists.” Miranda, 133

S.W.3d at 227. In evaluating an evidentiary plea to the jurisdiction, the standard of

review “generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c).” Id. at 228. The plaintiff has the burden to adduce evidence to

“raise a fact question on the jurisdictional issue.” Id. The evidence is reviewed in the

7

light most favorable to the nonmovant to determine whether a genuine issue of

material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex.

2019).

We review an order denying a temporary injunction for abuse of discretion.

State v. Hollins, 620 S.W.3d 400, 405 (Tex. 2020). A failure by the trial court,

however, to analyze or apply the law correctly will constitute an abuse of discretion.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “To establish

its right to a temporary injunction, the State must ‘prove three specific elements: (1)

a cause of action against the defendant; (2) a probable right to the relief sought; and

(3) a probable, imminent, and irreparable injury in the interim.’” Hollins, 620

S.W.3d at 405 (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002)). We review an order denying a temporary injunction for abuse of discretion,

mindful that the lower court has “‘no discretion to determine what the law is.’” Id.

(quoting In re Francis, 186 S.W.3d 534, 538 (Tex. 2006) (orig. proceeding)).

II. Dismissal of UDJA Claim Against the City

In its first issue, the State of Texas argues that the trial court erred by

dismissing its UDJA claim against the City of San Marcos because the City has no

governmental immunity from a claim to declare an ordinance preempted. The UDJA

contains a waiver of immunity from suit “[i]n any proceeding that involves the

validity of a municipal ordinance or franchise” and requires that “the municipality

must be made a party and is entitled to be heard[.]” Tex. Civ. Prac. & Rem. Code

§ 37.006(b). Where, as here, the Legislature requires that the City be joined in a

lawsuit for which “immunity would otherwise attach,” the Legislature has

intentionally waived the City’s governmental immunity. Wichita Falls State Hosp.

v. Taylor, 106 S.W.3d 692, 697–98 (Tex. 2003); City of El Paso v. Heinrich, 284

S.W.3d 366, 373 n.6 (Tex. 2009) (“For claims challenging the validity of ordinances

8

or statutes . . . the Declaratory Judgment Act requires that the relevant governmental

entities be made parties, and thereby waives immunity.”).

The City acknowledges this general rule but defends the dismissal on the

ground that the State’s UDJA claim is not viable. Although the UDJA generally

waives immunity for declaratory judgment claims challenging the validity of

ordinances, the Texas Supreme Court has recognized that immunity from suit is not

waived if the claim challenging the law or ordinance is invalid. Abbott v. Mexican

Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 698 (Tex.

2022); Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015)).

Accordingly, we first determine whether the State’s UJDA claim is invalid in order

to resolve the issue.

Ordinarily, when reviewing a plea to the jurisdiction, we delve no further than

necessary into the merits to dispel notions that the State’s preemption claim is

implausible. See Klumb, 458 S.W.3d at 13. But here, we are also reviewing the trial

court’s denial of the State’s request for a temporary injunction. This latter inquiry

requires us to determine whether the State demonstrated a “probable right to relief”

on its preemption theory—a question that involves a deeper merits inquiry. Hollins,

620 S.W.3d at 405. For convenience, we analyze both questions together.

A. Principles of Preemption

It is undisputed that the City of San Marcos is a home-rule municipality. As a

home-rule municipality, the City of San Marcos possesses the “full power of local

self-government.” Tex. Loc. Gov’t Code § 51.072(a). But that power is not

unlimited. Article XI, Section 5(a) of the Texas Constitution provides that home-

rule city ordinances must not “contain any provision inconsistent with the

Constitution of the State, or of the general laws enacted by the Legislature of this

State.” Tex. Const. art. XI, § 5(a). Although home-rule cities have all powers not

9

denied by federal law, the Constitution, or state law, and thus need not look to the

Legislature for grants of authority, the Legislature can limit or withdraw that power

by general law. BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex.

2016). On any given issue, choosing whether uniform statewide regulation or

nonregulation is preferable to a patchwork of local regulations ultimately “is the

Legislature’s prerogative.” City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586,

592–93 (Tex. 2018).

To win a preemption claim, the party asserting preemption must prove that

state law preempts the local ordinance. City of Houston v. Houston Pro. Fire

Fighters’ Ass’n, Local 341, 664 S.W.3d 790, 804 (Tex. 2023). To preempt an

ordinance of a home-rule city, the “Legislature must demonstrate its intent to

preempt local law ‘with unmistakable clarity.’” Id. (quoting Dallas Merch.’s &

Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993); see also

City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964). If the statute makes

that legislative intent clear, then the local ordinance “is unenforceable to the extent

it conflicts with the state statute.” Id. Where a conflict is present, local regulations

that are “inconsistent with a statutory standard are not saved from preemption merely

because some applications produce consistent results.” Id. at 806.

B. Statutory Construction

Examining the Ordinance and the relevant provision of the Texas Local

Government Code, we conclude that the State’s UDJA preemption claim is not

invalid. On the contrary, the State has demonstrated a probable right to relief on that

claim. See infra, Part IV. B.

We review issues of statutory construction de novo. Chambers-Liberty Cntys.

Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). Our objective in

construing a statute is to determine and give effect to the Legislature’s intent, and

10

we begin by examining the plain meaning of the language used in the statute.

Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022). “A statute’s

unambiguous language controls.” City of Richardson v. Oncor Elec. Delivery Co.,

539 S.W.3d 252, 261 (Tex. 2018).

The State contends that Sections 54.101 through 54.107 of the Ordinance are

preempted:

(1) Section 54.101 prohibiting San Marcos police officers from issuing

citations or making arrests for Class A or Class B misdemeanor

possession of marijuana;

(2) Section 54.102 prohibiting San Marcos police officers from issuing

Class C misdemeanor citations for possession of drug residue 4 or drug 3F

paraphernalia in lieu of a marijuana charge;

(3) Section 54.103 prohibiting use of city funds and personnel to

request, conduct, or obtain THC testing;

(4) Section 54.105 requiring San Marcos police officers to receive

adequate training concerning each provision of the Ordinance;

(5) Section 54.106 permitting San Marcos police officers to be

disciplined for failure to comply with the Ordinance; and

(6) Section 54.107 requiring the City Manager to submit regular reports

to the City Council concerning implementation of the Ordinance.

In this case, legislative intent to preempt local policy is unmistakably clear.

Section 370.003 states that “[t]he governing body of a municipality, . . . may not

adopt a policy under which the entity will not fully enforce laws relating to drugs[.]”

Tex. Loc. Gov’t Code § 370.003. The issue is whether the Ordinance falls within the

ambit of the statute. See In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (orig.

proceeding) (stating that an ordinance is preempted only “to the extent it conflicts

with the state statute”). To decide that, we look to the statutory text and the ordinary

4

The Health and Safety Code does not contain a provision prohibiting possession of “drug

residue.”

11

meanings of its words. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)

(“The plain meaning of the text is the best expression of legislative intent unless a

different meaning is apparent from the context or the plain meaning leads to absurd

or nonsensical results.”).

In 1997, the Texas Legislature enacted Section 370.003 of the Local

Government Code, prohibiting various entities—including the “governing body of a

municipality”—from adopting “a policy under which the entity will not fully enforce

laws relating to drugs, including Chapters 481 and 483, Health and Safety Code, and

federal law.” Tex. Loc. Gov’t Code § 370.003. This is not a mandate that local

governments actually enforce all laws related to drugs. Rather, the statute prohibits

local governments from putting up any barrier to the full enforcement of drug-

related laws. Texas law gives local governments and law enforcement officers a

panoply of tools—such as the authority to issue citations and arrests—to enforce

drug laws. Section 370.003 prohibits the City of San Marcos from making a policy

that takes any of those tools off the table.

Applying the plain meaning of Section 370.003, we hold that the Legislature’s

intent to preempt the Ordinance is unmistakably clear. Marijuana offenses are

defined in Chapter 481 of the Health and Safety Code. See, e.g., Tex. Health &

Safety Code § 481.120 (delivery of marijuana); Tex. Health & Safety Code

§ 481.121 (possession of marijuana). The Ordinance’s stated purpose is to “[e]nd

citations and arrests for misdemeanor possession of marijuana.” Texas law

authorizes police officers to issue citations and make arrests for Chapter 481

offenses, but Ordinance Section 54.101 prohibits them from doing so. See Tex.

Health & Safety Code § 481.120-.122. Texas law also authorizes police officers to

issue citations and make arrests for Class C misdemeanor citations for possession of

drug paraphernalia in lieu of a marijuana charge, but Ordinance Section 54.102

12

prevents them from doing so. Tex. Health & Safety Code 481.125(a), (d). Texas law

gives cities the power to use city funds and personnel to request, conduct, or obtain

THC testing, but Ordinance Section 54.103 prevents them from doing so. See Tex.

Loc. Gov’t Code § 51.072 (giving municipality full power of local self-government);

Tex. Loc. Gov’t Code § 101.002 (“municipality may manage and control the

finances of the municipality”). All of these Ordinance prohibitions are barriers to the

full enforcement of Texas drug laws and thus conflict with Local Government Code

Section 370.003. Sections 105-107 of the Ordinance effectuate the provisions of the

Ordinance that conflict with Section 370.003 and thus are preempted as well.

The City attempts to refute the State’s preemption claim with several

arguments, which we address in turn.

1. Express Preemption of an Ordinance.

The City first argues that Section 370.003 does not contain language that

demonstrates the Legislature’s intent to preempt local law with “unmistakable

clarity” because it bars the governing body of a municipality from “adopt[ing] a

policy”—as opposed to an “ordinance”—under which the entity will not fully

enforce laws relating to drugs. The City argues that if a state statute “expressly

preempted” the City from “enact[ing] an ordinance,” the Ordinance would be

preempted. According to the City, an ordinance is not policy, so its Ordinance is not

in conflict with Section 370.003.

We interpret statutes by discerning the “fair meaning of the text, not ‘the

hyperliteral meaning of each word in the text.’” In re Dallas County, 697 S.W.3d

142, 158 (Tex. 2024) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 356 (2012)) (emphasis in original). The

Legislature’s use of the term “policy” fairly encompasses an ordinance. After all, the

Texas Supreme Court has recognized that “[]statutes and ordinances express the

13

public policy of the state as it existed at the time of their adoption.” State v. City of

Austin, 331 S.W.2d 737, 741 (Tex. 1960); see also Fairfield Ins. Co. v. Stephens

Martin Paving, LP, 246 S.W.3d 653, 673 n.11 (Tex. 2008) (Hecht, J. concurring);

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000)

(“[C]ommentators have defined legislative power as the power to make rules and

determine public policy.”). In this case, the City, by its own terms, “considered,

approved, and adopted” the Ordinance. The Ordinance’s stated purpose is to end

enforcement of misdemeanor marijuana possession, which Section 370.003

preempts.

Relatedly, the City argues that the Legislature did not preempt the Ordinance

with “unmistakable clarity” because the Legislature did not use the term “is

expressly preempted” or the like in the text of Section 370.003. The City cites the

Legislature’s ban on municipal fracking and its establishment of a minimum wage

as examples of effective preemptive language. See Tex. Nat. Res. Code § 81.0523

(“The authority of a municipality or other political subdivision to regulate an oil and

gas operation is expressly preempted[.]”) (emphasis added); see also Tex. Labor

Code § 62.0515 (“[T]he minimum wage provided by this chapter supersedes a wage

established in an ordinance, order, or charter provision governing wages in private

employment . . .”) (emphasis added).

No magic words were necessary for the Legislature to preempt the Ordinance

with unmistakable clarity. A plain and fair reading of the Ordinance presents

irreconcilable inconsistency with Section 370.003. For example, the Ordinance

prohibits police officers from “issu[ing] citations or mak[ing] arrests for class A or

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

circumstances[.]” Although courts will adopt “reasonable” interpretations of a

home-rule city’s ordinance to avoid preemption, in this instance, there is no

14

reasonable way to read the Ordinance that does not directly conflict with the state

statute prohibiting the adoption of policies under which the entity will not fully

enforce such laws. See Hotze v. Turner, 672 S.W.3d 380, 387 (Tex. 2023); See

Dallas Merch.’s, 852 S.W.2d at 491.

2. Fully Enforce

The Texas Supreme Court has held that “a general law and a city ordinance

will not be held repugnant to each other if any other reasonable construction leaving

both in effect, can be reached.” Beaumont v. Fall, 291 S.W. 202, 206 (Tex. [Comm’n

Op.] 1927). Invoking this authority, the City argues that Section 370.003 can be

harmonized with the Ordinance because the Ordinance does not prohibit police

officers from “fully enforcing” the state’s drug laws. According to the City, no police

force could “fully enforce” all drug laws, so the Ordinance simply allows San

Marcos police discretion to focus their efforts on drug offenses involving other drugs

and larger amounts of marijuana in addition to violent offenses. The City contends

the term “fully enforce” in Section 370.003 cannot “reasonably and workably mean

that the City is required to enforce drug laws in every single possible situation.”

To be sure, police forces cannot “fully enforce” every violation of crime that

occurs. But, the text of the Ordinance removes a category of offenses from the police

officer’s enforcement discretion. The mere fact that the goal of achieving full

enforcement is unattainable does not mean that a municipality can ban citations and

arrests for certain offenses.

The City also argues that the Ordinance is not preempted because the

Ordinance will operate in many circumstances just like the ordinary exercise of

crime prioritization and prosecutorial discretion. In other words, officers could have

exercised their discretion in choosing not to issue citations or make arrests in the

same categories of cases even in absence of the Ordinance. This does not save the

15

Ordinance. We find guidance in a similar preemption argument rejected by the Texas

Supreme Court. In BCCA Appeal Group, Inc. v. City of Houston, the City of Houston

sought to avoid preemption and to enforce its locally enacted air-quality regulatory

regime. 496 S.W.3d 1, 5 (Tex. 2016). The Texas Supreme Court held that the Clean

Air Act preempted the local ordinance because the local “enforcement provisions

authorize the City to enforce the state’s air-quality standards in a manner that is

inconsistent with the statutory enforcement provisions.” Id. at 16 (emphasis added).

The Court rejected the argument that hypothetical convergence of the two

enforcement regimes saved the ordinance from preemption. Id. That a City might

choose to enforce its ordinance “in a way that does not violate the statutory

requirements,” id. at 17, did not mean that the ordinance was consistent with state

law. Local regulations that authorize enforcement based on standards that are

inconsistent with a statutory standard are not saved from preemption merely because

some applications may produce consistent results. City of Houston, 664 S.W.3d at

806.

The City also argues that there is no actual conflict with state law because the

Ordinance does not order police officers to stop enforcing drug laws. The text of the

Ordinance belies that reading. The Ordinance plainly states that officers “shall not

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

marijuana offenses, except in . . . limited circumstances[.]” The Ordinance makes

any such citation or arrest a ground for “subject[ing] a San Marcos police officer to

discipline.” This directly conflicts with Section 481.134’s codification of marijuana

possession as a crime subject to law enforcement by arrest or citation. See Tex.

Health & Safety Code § 481.120–.122. The fact that the Ordinance prohibits

enforcement of only some drug laws—while leaving the enforcement of other drug

laws to the officers’ discretion—does not save the Ordinance from preemption.

16

We therefore sustain the State’s first issue. The trial court had jurisdiction

over the State’s UDJA claim for a declaration that the Ordinance is preempted by

state law. See Tex. Civ. Prac. & Rem. Code § 37.006(b). The State pleaded a viable

claim that the Ordinance is preempted by Section 370.003 of the Local Government

Code. Consequently, the UDJA waives the City’s governmental immunity from the

State’s declaratory judgment action. See Heinrich, 284 S.W.3d at 373 n.6 (“For

claims challenging the validity of ordinances or statutes . . . the Declaratory

Judgment Act requires that the relevant governmental entities be made parties, and

thereby waives immunity.”).

III. Dismissal of Ultra Vires Activity Claims Against City Officials

In its second issue, the State challenges the trial court’s grant of the plea to

the jurisdiction on its ultra vires action claims against the various City Officials. The

State seeks a declaration that the Ordinance and any corresponding police

department general order or directive are ultra vires and void.

In this case, whether the State has sufficiently pleaded facts or presented

evidence to demonstrate subject matter jurisdiction over an ultra vires claim

overlaps with the substantive issue of whether the State has established a probable

right to relief to obtain a temporary injunction. For the reasons stated below, we

conclude the State’s pleadings, when liberally construed, and the evidence

submitted, when viewed in the light most favorable to the State, allege facts

sufficient to show that the City Officials acted without authority in adopting the

Ordinance and implementing police procedures in compliance with the Ordinance.

The State’s petition alleged that the City Officials lacked legal authority to

adopt the Ordinance and any corresponding police department general order or

directive. Governmental immunity does not bar a suit that seeks to bring local

government officials into compliance with state law. In re State, No. 24-0325, 2024

17

WL 2983176, at *4 (Tex. June 14, 2024); Hollins, 620 S.W.3d at 410; Chambers-

Liberty Cntys. Navigation Dist., 575 S.W.3d at 348. To fall within this ultra vires

exception, a suit “must allege, and ultimately prove, that the officer acted without

legal authority or failed to perform a purely ministerial act.” See Heinrich, 284

S.W.3d at 372; see also Hall v. McRaven, 508 S.W.3d 232, 240–41 (Tex. 2017).

“[A]ctions taken ‘without legal authority’ ha[ve] two fundamental

components: (1) authority giving the official some (but not absolute) discretion to

act and (2) conduct outside of that authority.” McRaven, 508 S.W.3d at 239. A

government officer acts without legal authority if he or she exceeds the bounds of

the granted authority or if his or her acts conflict with the law itself. Houston Belt &

Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). A preempted

law has no effect. Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743

(Tex. 2001). With these principles in mind, we examine the ultra vires claim as to

each defendant.

A. The City Council Members and the Mayor

The Texas Constitution deprives home-rule cities of the power to enact

ordinances that conflict with state law. Tex. Const. art. XI § 5. Here, the State

pleaded that the Local Government Code forbids the “governing body of a

municipality”—here, the City Council members and the Mayor—from adopting a

policy that “will not fully enforce laws relating to drugs.” Tex. Loc. Gov’t Code

§ 370.003. According to the State, the City Council members and the Mayor

committed an ultra vires act when they approved and adopted the unlawful

Ordinance that conflicts with Section 370.003 of the Government Code.

These allegations were borne out by the evidentiary record, which shows that

the City Council adopted the Ordinance without discussion after canvassing the

election and certifying the results. The Mayor signed the resolution that

18

“CONSIDERED, APPROVED, and ADOPTED” the Ordinance. The State,

therefore, has sufficiently alleged an ultra vires claim that the City Council members

and Mayor acted without legal authority.

The City Officials allege their actions were not ultra vires because they were

required to adopt the Ordinance as approved by the voters. The authority on which

the City Officials rely, however, does not apply to the adoption of citizen-initiated

ordinances. Each case relied on by the City Officials requires a city to hold an

election once citizens have properly exercised their initiative rights. But these cases

do not speak to the City Officials’ discretion to adopt an ordinance that conflicts

with state law. See In re Rogers, 690 S.W.3d 296, 301 (Tex. 2024) (orig. proceeding)

(“[O]ur precedents reflect a strong preference in favor of holding elections on

qualified ballot measures even where there is some question about whether the

measure, if passed, would be subject to valid legal challenge.”); see also Glass v.

Smith, 244 S.W.2d 645, 653 (Tex. 1951) (holding that when citizens exercise their

rights under the initiative provisions of a city charter the city must perform its duties

and carry out the initiative procedure).

The City Officials further assert they would be subject to ultra vires liability

if they had not adopted the Ordinance after it was approved by the voters. While the

authority cited by the City Officials may require a citizen-initiated proposition to be

placed on the ballot, that authority does not translate into a ministerial duty for the

City Officials to adopt and enforce an illegal Ordinance. The Texas Supreme Court

has distinguished between these two circumstances: “[t]he right to call and hold a

void election is a political right that the courts have no jurisdiction to interfere with,

. . .[] the right to enforce a void election in such a way as to violate the laws of this

state would present a matter that the judicial power of the government would have

the right to give relief from.” In re Morris, 663 S.W.3d 589, 596 (Tex. 2023) (orig.

19

proceeding).

The State alleged that the City Council members and Mayor violated state law

by “adopt[ing] a policy under which the [City] will not fully enforce laws relating to

drugs[.]” As such, the State has pleaded a valid ultra vires claim by pleading that the

City Officials acted without legal authority. See Hollins, 620 S.W.3d at 410 (“[a]s a

sovereign entity, the State has an intrinsic right to . . . enforce its own laws.”

(alteration in original)). To be sure, the City Officials challenge their authority to

invalidate a citizen-initiated ordinance. They assert the Ordinance was “self-

enacting” and that all the City Council did was certify the election. The City Officials

further assert that their vote to adopt the Ordinance was merely a vote to certify the

tabulation of votes. This argument presents a fact issue that goes to the merits of the

State’s ultra vires claims that we do not resolve at this juncture. Because the

evidence creates a fact question on whether the City Council members and the Mayor

acted ultra vires in contravention of the Local Government Code, the trial court

could not grant the plea to the jurisdiction. See Miranda, 133 S.W.3d at 228. We

sustain the State’s first appellate issue with respect to the City Council members and

the Mayor.

B. The Police Chief

The State argues that the trial court erred by dismissing its ultra vires claim

against the Police Chief.

The State argues that it has pleaded a valid claim that falls within the exception

to governmental immunity. It is undisputed that the Ordinance tasks Reyes, the City

Manager, and the Police Chief with enforcement and implementation of its

requirements. The State presented evidence that the Police Chief issued the

Memorandum as a “written directive” instructing the police force regarding the

requirements of the Ordinance, and that he used the Memorandum to provide

20

“training concerning each of the provisions of this ordinance.” The Memorandum

advises officers on how to act in accordance with the Ordinance on topics including

juveniles, destruction of marijuana, and police officers’ inability to use odor to

support probable cause. The Memorandum closed by reiterating the Ordinance’s

warning that violating the ordinance “may subject” officers to discipline and

explaining the department’s disciplinary process. The Police Chief also instructed

his police force that juveniles were “exempt” from misdemeanor marijuana

possession charges.

The City Officials respond that the Memorandum did no more than

communicate the requirements of the Ordinance itself, which does not prevent the

full enforcement of the state’s drug laws. Because the State’s evidence raises a fact

issue on the question of whether the Police Chief has committed an ultra vires act,

we sustain the State’s first appellate issue with respect to the State’s claim against

the Police Chief.

B. The City Manager

The State also appeals the trial court’s grant of the plea to the jurisdiction on

its ultra vires action claim against Reyes, the City Manager.

The State argues that jurisdiction is waived because the Ordinance tasks Reyes

and the Police Chief with enforcement and implementation of its requirements. The

State also presented evidence that Reyes is responsible for executing the laws and

administering the government of the City. The Police Chief also testified that Reyes,

for whom he works, did not provide him with authority to refuse to enforce the

Ordinance.

The City Officials argue that although the Ordinance may task Reyes, the City

Manager, with enforcement and implementation, there is no evidence that Reyes has

21

actually taken an action that could constitute an ultra vires act. We agree with the

City Officials that the State has not pleaded or presented evidence of an act taken by

Reyes to implement or enforce the Ordinance, so the trial court did not err by

granting the plea to the jurisdiction. When upholding a plea to the jurisdiction on

governmental immunity grounds, we give the plaintiff an opportunity to replead if

the defect can be cured. Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex.

2011); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Here

neither the pleadings nor the record refute jurisdiction, so we give the State an

opportunity to replead. We overrule the State’s first issue with respect to its claim

against Reyes, the City Manager, but modify the order to reflect that dismissal is

without prejudice to allow the State an opportunity to replead.

IV. Temporary Injunction

In its second issue the State argues the trial court erred in denying its

application for temporary injunction. To be entitled to a temporary injunction, the

State must “prove three specific elements: (1) a cause of action against the defendant;

(2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable

injury in the interim.” Hollins, 620 S.W.3d at 405.

A. Cause of Action

The State has a valid declaratory judgment cause of action against the City to

establish that the Ordinance in question is preempted. See Patel v. Tex. Dep’t of

Licensing & Regul., 469 S.W.3d 69, 76–77 (Tex. 2015). The adoption of an

ordinance which is contrary to state law gives rise to a cause of action against the

City on behalf of the State. See id. Not only does the Texas Constitution prohibit a

city from acting in a manner inconsistent with the general laws of the state, Tex.

Const. art. XI, § 5, but “the [L]egislature may, by general law, withdraw a particular

subject from a home rule city’s domain.” Tyra v. City of Houston, 822 S.W.2d 626,

22

628 (Tex. 1991). And, for the reasons explained in Part II, the City is not entitled to

governmental immunity on the State’s claim.

Appellees dispute the existence of a cause of action against the City on the

ground that its governing body did not choose in its discretion to adopt the ordinance,

the voters did. This argument is untenable. The Constitution states that “no charter

or any ordinance passed under said charter shall contain any provision inconsistent

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

of this State.” Tex. Const. art. XI, § 5(a). Predictably, this constitutional prohibition

contains no carveouts for ordinances resulting from local voter initiative processes.

The City’s own charter recognizes these limitations in directing that “[t]he people of

the city . . . may propose any ordinance or repeal any ordinance not in conflict with

. . . the State Constitution, or the state laws.” The carveout proposed by Appellees

would subvert the power of the State over its municipalities, which “exist solely by

virtue of the State Constitution and legislative enactments,” Willis v. Potts, 377

S.W.2d 622, 625 (Tex. 1964), and are best characterized as having a “principal-

agent” relationship with the State. Tex. Dep’t of Transp. v. City of Sunset Valley, 146

S.W.3d 637, 643 (Tex. 2004).

The State further satisfied the first requirement by pleading a valid ultra vires

claim against the City Officials, with the exception of Reyes, the City Manager.

Section 370.003 explicitly removes from all municipalities the power to “adopt a

policy under which the entity will not fully enforce laws relating to drugs[.]” Tex.

Loc. Gov’t Code § 370.003. For nearly a century, Texas courts have recognized the

“elementary” rule that the “state may maintain an action to prevent abuse of power

by public officers.” Yett v. Cook, 281 S.W. 837, 842 (Tex. 1926) (orig. proceeding);

Hollins, 620 S.W.3d at 405. “[T]he State has an intrinsic right to . . . enforce its own

laws [and] where those laws are being defied or misapplied by a local official, an

23

ultra vires suit is a tool ‘to reassert the control of the state.’” Hollins, 620 S.W.3d at

410.

There is no governmental immunity bar to a lawsuit to require local officials

to comply with Section 370.003. Accordingly, the first requirement is satisfied with

the exception of the claim against Reyes, the City Manager.

B. Probable Right to the Relief Sought

Turning to the second requirement, we find that the State established a

probable right to relief with respect to some of the relief sought in its temporary

injunction request, but not all of the relief sought in its temporary injunction

request. 5 4F

The State established a probable right to prevail on its theory that Local

Government Code Section 370.003 preempts the Ordinance, depriving that law of

effect. This theory lies at the heart of the State’s requests for temporary relief. The

Legislature can “withdraw a particular subject from a home rule city’s domain” “by

general law.” Tyra, 822 S.W.2d at 628. Section 370.003 explicitly removes from all

municipalities the power to “adopt a policy under which the entity will not fully

enforce laws relating to drugs[.]” Tex. Loc. Gov’t Code § 370.003. As explained in

Part II, the Ordinance is preempted because it erects multiple barriers that prevent

the City of San Marcos and its police officers from fully enforcing the state’s drug

laws. The City’s argument that Texas’s suit is an invalid attempt to control

5

The State requested a temporary injunction enjoining Appellees from enforcing the

Ordinance and ordering Appellees to (a) repeal the Ordinance; (b) cancel any corresponding San

Marcos Police Department general order or directive; (c) fully enforce the drug laws in Chapter

481; (d) not discipline any employee of the City of San Marcos for enforcing the drug laws in

Chapter 481; and (e) modify city policies and internal operating procedures to the extent that they

have been updated in response to the Ordinance. On appeal, the State requests only an injunction

enjoining Appellees from enforcing the ordinance and ordering Appellees to repeal the Ordinance.

24

prosecutorial discretion fails. The Ordinance’s prohibition on prosecuting certain

criminal offenses is not an exercise in the discretion of law enforcement officials.

Under the Ordinance, law enforcement officials and prosecutors, who act as the

agents of Texas in enforcing State drug laws, Wilkerson v. State, 173 S.W.3d 521,

528 (Tex. Crim. App. 2005), lose their discretion to enforce the laws because they

have no choice but to categorically excuse crimes.

The State’s demonstration that the Ordinance is preempted justifies the relief

that the State requests in the prayer of its opening brief: a temporary injunction

prohibiting the enforcement of the Ordinance pending a final trial on the merits. This

relief encapsulates one of the requests for relief that the State requested in its motion

for temporary relief—a temporary injunction enjoining the enforcement of the

Ordinance and any corresponding San Marcos Police Department general order or

directive. Such a temporary injunction adequately protects the State’s “‘justiciable

interest in its sovereign capacity in the maintenance and operation of its municipal

corporations in accordance with law’” while the appeal is pending. Hollins, 620

S.W.3d at 410 (quoting Yett, 281 S.W. at 842).

The State has also challenged the trial court’s denial of its request for a

temporary injunction ordering the repeal of the Ordinance, but the State cites no

authority establishing that a state appellate court can order repeal of a preempted

ordinance. 6 On the contrary, the Texas Supreme Court has held that when “a court

5F

6

The authorities cited in the State’s post-submission briefing do not hold that a Court may

order repeal of a preempted statute. In re Woodfill addressed a situation where Houston residents

“filed a referendum petition requesting the City Council to reconsider and repeal its equal rights

ordinance and, if it did not repeal the ordinance, to put it to popular vote.” In re Woodfill, 470

S.W.3d 473, 475 (Tex. 2015). Because the petition obtained the required number of signatures, the

Court granted conditional mandamus relief requiring that Houston officials either “repeal the

ordinance” or “submit it to popular vote,” as the city charter required. Id. at 476, 481. There was

no preemption claim at issue. The Court issued conditional mandamus relief requiring the Houston

City Council to comply with its own laws regarding the handling of a referendum petition in In re

25

declares a law unconstitutional, the law remains in place unless and until the body

that enacted it repeals it, even though the government may no longer constitutionally

enforce it.” Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017). The same is

necessarily true when an ordinance is held to be preempted—it is unenforceable, but

it does not disappear.

Ordering the repeal of an ordinance would present grave separation-of-powers

problems. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev.

933, 936 (2018). Courts have “no authority to erase a duly enacted law from the

statute books, and they have no power to veto or suspend a statute. The power of

judicial review is more limited: It permits a court to decline to enforce a statute in a

particular case or controversy, and it permits a court to enjoin executive officials

from taking steps to enforce a statute—though only while the court’s injunction

remains in effect.” Id. (citations omitted); Steffel v. Thompson, 415 U.S. 452, 469

(1974) (“Of course, a favorable declaratory judgment . . . cannot make even an

unconstitutional statute disappear.”); see Ex parte E.H., 602 S.W.3d 486, 502 (Tex.

2020) (Blacklock, J., dissenting) (“Courts are not legislatures. The Texas

Constitution reserves the law-making and law-rescinding powers to the Legislature,

and it prohibits the judiciary from ‘exercis[ing] any power properly attached to either

of the other [] [branches].’” (quoting Tex. Const. art. II, § 1)). The Texas

Constitution vests the City of San Marcos, not the Court, with authority to adopt and

repeal ordinances. In any event, ordering a repeal would constitute permanent relief

that is unavailable at the temporary injunction stage. 7 Temporary injunctions are

6F

Williams, 470 S.W.3d 819, 820 (Tex. 2015).

7

The State’s requests for the cancellation of Police Department general orders or directives

and the modification of city policies also go beyond the scope of permissible temporary relief, the

purpose of which is to “preserve the status quo of the litigation’s subject matter pending a trial on

the merits.” See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

26

issued “to prevent only harm that cannot be prevented after a final determination on

the merits,” and that can be accomplished here short of repeal. NMTC Corp. v.

Conarroe, 99 S.W.3d 865, 868 (Tex. App.—Beaumont 2003, no pet.).

Furthermore, the State is not entitled to—or necessarily still seeking—a

temporary injunction requiring that the City and City Officials “fully enforce the

drug laws in Chapter 481.” The State acknowledges that Section 370.003 does not

mandate that cities fully enforce the State’s drug laws; it prohibits them from

adopting policies that would frustrate their ability to do so. See 31 Holdings I, LLC

v. Argonaut Ins. Co., 640 S.W.3d 915, 922 (Tex. App.—Dallas 2022, no pet.)

(distinguishing prohibitive and mandatory injunctive relief). Accordingly, we find

that the State has established its right to a temporary injunction enjoining Appellees

from enforcing the Ordinance.

C. Probable, Imminent, and Irreparable Injury in the Interim

The final requirement for a temporary injunction is that the State demonstrate

a “a probable, imminent, and irreparable injury in the interim.” Tex. Ass’n of Bus. v.

City of Austin, 565 S.W.3d 425, 441 (Tex. App.—Austin 2018, pet. denied). The

State has satisfied the requirement of demonstrating probable, imminent, and

irreparable injury. The Texas Supreme Court has repeatedly reaffirmed the

fundamental rule that the State has an “intrinsic right to . . . enforce its own laws.”

Hollins, 620 S.W.3d at 410 (quoting State v. Naylor, 466 S.W.3d 783, 790 (Tex.

2015)); Printz v. United States, 521 U.S. 898, 912 n.5 (1997); Yett, 281 S.W. at 842.

Given this authority, there is no question that a local official’s violation of state law

inflicts irreparable harm on the State. In re State, 2024 WL 2983176, at *4 (“Indeed,

the violation of duly enacted state law by local government officials clearly inflicts

irreparable harm on the State.” (citations and internal quotation marks omitted));

Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018) (The “inability [of a state] to enforce

27

its duly enacted [laws] clearly inflicts irreparable harm on the State.”); see also Tex.

Ass’n of Bus., 565 S.W.3d at 441.

In Hollins, the Texas Supreme Court held that the State’s “justiciable interest

in its sovereign capacity in the maintenance and operation of its municipal

corporations in accordance with law” supported a temporary injunction. Hollins, 620

S.W.3d at 410. In reaching that conclusion, the Court emphasized that the sovereign

“would be impotent to ‘enforce its own laws’ if it could not temporarily enjoin those

breaking them pending trial.” Id. Thus, “[w]hen the State files suit to enjoin ultra

vires action by a local official, a showing of likely success on the merits is sufficient

to satisfy the irreparable-injury requirement for a temporary injunction.” Id. For the

reasons explained above, the State made that showing.

D. Status Quo, Preservation of Equity, and Compliance with Rules of

Civil Procedure

In addition to the three required elements for a temporary injunction,

Appellees make several arguments in favor of the trial court’s denial. Appellees first

argue the requested relief would not “preserve the status quo.” Appellees assert that

because the Ordinance has been in effect since 2022, “the last uncontested status

quo” was no enforcement of misdemeanor marijuana possession laws.

The “status quo” is the “last, actual, peaceable, non-contested status which

preceded the pending controversy.” Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d

538, 555 (Tex. 2016). The continuation of illegal conduct, however, “cannot be

justified as preservation of the status quo.” In re Newton, 146 S.W.3d 648, 651 (Tex.

2004). Where the acts sought to be enjoined constitute violation of the law —or, in

this case, a continued failure to enforce state law—the status quo to be preserved

cannot be a continuation of those acts. It is undisputed that possession of marijuana

is illegal in Texas. See Tex. Health & Safety Code § 481.121 Therefore, we cannot

28

justify allowing state law to continue to be violated. We further note that the record

reflects that other jurisdictions, such as the Hays County Sheriff’s Department and

the Texas Department of Public Safety, are not bound by the Ordinance and,

therefore, have been permitted to issue citations and arrest violators for misdemeanor

possession of marijuana.

Finally, Appellees challenge the State’s request for a temporary injunction on

the grounds that it does not comply with Rule 683 of the Rules of Civil Procedure.

Rule 683 governs injunctions and provides in relevant part:

Every order granting an injunction and every restraining order shall set

forth the reasons for its issuance; shall be specific in terms; shall

describe in reasonable detail and not by reference to the complaint or

other document, the act or acts sought to be restrained; and is binding

only upon the parties to the action, their officers, agents, servants,

employees, and attorneys, and upon those persons in active concert or

participation with them who receive actual notice of the order by

personal service or otherwise.

Tex. R. Civ. P. 683.

“The requirements of Rule 683 are mandatory and must be strictly followed.”

InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.

1986) (per curiam). The rule, however, mandates the contents of the trial court’s

temporary injunction, not the contents of the requesting party’s application.

Compliance with Rule 683 is an issue for the trial court on remand. Because there is

no temporary injunction in place, any Rule 683 challenge is premature.

We sustain the State’s second issue in part with respect to its request for a

temporary injunction prohibiting enforcement of the Ordinance pending a final trial

on the merits. We overrule the State’s second issue with respect to the other relief

that the State requested, and as to all relief requested against Reyes, the City

Manager.

29

CONCLUSION

We reverse the trial court’s order granting the plea to the jurisdiction with the

exception of the State’s claim against Reyes, the City Manager. We modify the trial

court’s order to reflect that dismissal of the State’s claims against Stephanie Reyes,

the City Manager, is without prejudice and affirm that portion of the trial court’s

order as modified. When we uphold a plea to the jurisdiction on sovereign immunity

grounds, we allow the plaintiff the opportunity to replead if the defect can be cured.

Although the State’s pleadings against Reyes, the City Manager, do not affirmatively

demonstrate jurisdiction, neither do they refute jurisdiction, and the State should

have an opportunity to replead in an attempt to cure the jurisdictional defects.

Therefore, we modify the order to dismiss without prejudice to allow the State the

opportunity to replead. We reverse the order denying the State’s request for

temporary injunction prohibiting enforcement of the Ordinance. We remand the case

to the trial court for proceedings consistent with this opinion and to enter a temporary

injunction prohibiting the enforcement of the Ordinance pending a final trial on the

merits.

/s/ April Farris

April Farris

Justice

Before Chief Justice Brister and Justices Field and Farris.

30