City of Brownsville, Texas v. Rio Bravo Subdivision Property Owners Association, on Behalf of 203 Registered Voters in the Rio Bravo Subdivision

NUMBER 13-07-554-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CITY OF BROWNSVILLE, TEXAS, Appellant,

v.

RIO BRAVO SUBDIVISION PROPERTY

OWNERS ASSOCIATION, ON BEHALF OF

203 REGISTERED VOTERS IN THE

RIO BRAVO SUBDIVISION, Appellees.

On appeal from the 107th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Garza

Appellant, the City of Brownsville ("the City"), brings this interlocutory appeal of the

trial court's denial of the City's plea to the jurisdiction in a disannexation action brought by

appellees, the Rio Bravo Property Owners Association, a Texas non-profit corporation

acting on behalf of 203 residents of Rio Bravo, a residential subdivision, and the 203

residents themselves (collectively referred to as "Rio Bravo"). The City argues, in its sole

issue, that the trial court erred in denying its plea to the jurisdiction because section 43.141

of the Texas Local Government Code does not serve as a waiver of its governmental

immunity to suit. See Tex. Loc. Gov't Code Ann. § 43.141 (Vernon Supp. 2007). We

affirm the decision of the trial court.

I. Factual and Procedural Background

The Rio Bravo subdivision, located on the boundary of Brownsville, was annexed

by the City. Pursuant to section 43.141 of the Texas Local Government Code, a majority

of the registered voters residing in the subdivision sought the disannexation of the

subdivision from the City. See id. Rio Bravo complied with all procedural requirements of

section 43.141, including filing with the City a petition for disannexation alleging that the

City failed to provide services, as well as posting and publishing the petition. See id. §

43.141(d), (f).

Because the City failed to act upon Rio Bravo's petition for disannexation within sixty

days after having received the petition, Rio Bravo exercised its right to petition the local

district court to request that the area be disannexed. See id. § 43.141(b). Rio Bravo filed

its petition with the 107th District Court of Cameron County on January 23, 2006. This

petition alleged that the City failed to provide services and had acted in bad faith, and

sought, in part, a judgment "[d]eclaring that under the said Petition and/or Section 43.141

of the Texas Local Government Code, Plaintiff is entitled to the disannexation of the said

area . . . ."

On January 23, 2007, counsel for both parties executed a written stipulation stating

that "[t]he plaintiff does not contest and will not contest in this case, as part of their grounds

for disannexation, that the City of Brownsville in any way failed to comply with the municipal

service plan which was filed for the annexation in question."

On January 24, 2007, the City filed a "Supplemental Motion for Summary Judgment

or in the Alternative, Plea to the Jurisdiction," alleging that: (1) Rio Bravo lacked standing

to sue under section 43.141(d)(5) of the Texas Local Government Code; (2) Rio Bravo had

not met the statutory requirements for suit under section 43.141(d)(5); (3) the court lacked

subject matter jurisdiction; and (4) there was no evidence offered that the City failed to

comply with the service plan prepared for Rio Bravo. See id. § 43.141(d)(5).

On August 8, 2007, Rio Bravo filed its first supplemental petition which added "the

said 203 qualified voters" to the list of named plaintiffs. Subsequently, on August 23, 2007,

the trial court denied the City's plea to the jurisdiction on governmental immunity grounds,

providing no specific conclusions of law or findings of fact. The City filed its notice of

interlocutory appeal on August 28, 2007.

II. Discussion

A. Jurisdiction and Standard of Review

If a trial court denies a governmental unit's claim of no jurisdiction, whether it has

been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise,

the Legislature has provided that an interlocutory appeal may be brought. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014 (a)(8) (Vernon Supp. 2007). It is undisputed that the City

is such a governmental unit. See id. § 101.001(3)(B). Accordingly, we have jurisdiction

to consider the issues raised on appeal by the City.

We review a trial court's ruling on a plea to the jurisdiction under a de novo standard

of review. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex.

2004). In determining whether subject matter jurisdiction exists, all allegations in the

pleadings are to be accepted as true. City of San Antonio v. Butler , 131 S.W.3d 170, 174

(Tex. App.-San Antonio 2004, pet. denied). The plaintiff bears the burden of alleging facts

affirmatively demonstrating the trial court's jurisdiction to hear a case. Id.

B. Declaratory Judgments and Governmental Immunity

Governmental entities enjoy immunity from suit unless the legislature has clearly

and unambiguously waived such immunity. See, e.g., Tooke v. City of Mexia , 197 S.W.3d

325, 332 (Tex. 2006); City of Weslaco v. Borne , 210 S.W.3d 782, 789 (Tex. App.-Corpus

Christi 2006, pet. denied); see also Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2007)

("In order to preserve the legislature's interest in managing state fiscal matters through the

appropriations process, a statute shall not be construed as a waiver of sovereign immunity

unless the waiver is effected by clear and unambiguous language."). The primary purpose

of governmental immunity from suit is to protect state agencies and their officials from

lawsuits for damages. See Fed. Sign v. Tex. State Univ. , 951 S.W.2d 401, 405 (Tex.

1997); Anderson v. City of McKinney , 236 S.W.3d 481, 482 (Tex. App.-Dallas 2007, no

pet.).

Although governmental entities generally enjoy immunity from suit, private parties

may seek declaratory relief against state officials who allegedly act without legal or

statutory authority. Tex. Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849,

855 (Tex. 2002); see Tex. Civ. Prac. & Rem. Code § 37.004(a) (authorizing any entity that

is "affected by a statute" to "have determined any question of construction or validity arising

under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations

thereunder"). This is because suits to compel state officers to act within their official

capacity do not attempt to subject the State to liability. IT-Davy , 74 S.W.3d at 855 .

Therefore, certain declaratory judgment actions against state officials do not implicate the

sovereign immunity doctrine. Id.

On the other hand, declaratory judgment actions against state officials seeking to

establish a contract's validity, to enforce performance under a contract, or to impose

contractual liabilities are considered suits against the State, because such suits attempt

to control state action by imposing liability on the State. See Griffin v. Hawn , 341 S.W.2d

151, 152 (Tex. 1960); W.D. Haden Co. v. Dodgen , 308 S.W.2d 838 (Tex. 1958).

Consequently, such suits cannot be maintained without legislative consent. See Fed. Sign ,

951 S.W.2d at 404 . Further, private parties cannot circumvent the State's sovereign

immunity from suit by characterizing a suit for money damages, such as a contract dispute,

as a declaratory judgment claim. IT-Davy , 74 S.W.3d at 855-56 ; see also City of Houston

v. Williams , 216 S.W.3d 827, 829 (Tex. 2007) .

These same principles apply to declaratory judgment actions brought against

municipalities. City of Waco v. Bittle , 167 S.W.3d 20, 26 (Tex. App.-Waco 2005, pet.

denied); see City of San Benito v. Ebarb , 88 S.W.3d 711, 721-22 (Tex. App.-Corpus

Christi 2000, pet. denied).

C. Analysis

Rio Bravo has not requested money damages, nor are money damages conceivable

as a remedy that would address Rio Bravo's claims. Moreover, Rio Bravo is not seeking

to establish a contract's validity, to enforce performance under a contract, or to impose

contractual liabilities on a state entity. See IT-Davy , 74 S.W.3d at 855 .

Rather, Rio Bravo has filed suit for disannexation pursuant to section 43.141 of the

Texas Local Government Code. See Tex. Loc. Gov't Code § 43.141. Subsections (a) and

(b) of section 43.141 provide as follows:

(a) A majority of the qualified voters of an annexed area may petition

the governing body of the municipality to disannex the area if the municipality

fails or refuses to provide services or to cause services to be provided to the

area within the period specified by Section 43.056 or by the service plan

prepared for the area under that section.

(b) If the governing body fails or refuses to disannex the area within

60 days after the date of the receipt of the petition, any one or more of the

signers of the petition may bring a cause of action in a district court of the

county in which the area is principally located to request that the area be

disannexed. On the filing of an answer by the governing body, and on

application of either party, the case shall be advanced and heard without

further delay in accordance with the Texas Rules of Civil Procedure. The

district court shall enter an order disannexing the area if the court finds that

a valid petition was filed with the municipality and that the municipality failed

to perform its obligations in accordance with the service plan or failed to

perform in good faith.

Id. § 43.141.

This statutory provision clearly and unambiguously authorizes suit against a city for

failure to disannex an area, provided that two conditions precedent are satisfied: (1) a

majority of qualified voters of the annexed area must have filed a petition with the city

alleging a failure to provide services within the applicable time period; and (2) sixty days

must have passed since the city received that petition. Id.

The relief requested by Rio Bravo is not in the nature of damages. Instead, Rio

Bravo seeks to compel the City to comply with the requirements of section 43.141 of the

Texas Local Government Code. Thus, we conclude that governmental immunity does not

pose a bar to Rio Bravo's petition for declaratory relief. See Bittle , 167 S.W. 3d at 25

(finding that, because the plaintiff's suit for declaratory relief did not seek to impose liability

on the defendant City of Waco, and because the plaintiff exhausted all available

administrative remedies, the City's immunity was not implicated); see also Ebarb , 88

S.W.3d at 724 (finding that, despite reference to the declaratory judgment act, plaintiff's

suit was for money damages and therefore barred by sovereign immunity).

Accordingly, the City's issue is overruled. (1)

III. Conclusion

We affirm the decision of the trial court.

__________________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 14th day of February, 2008.

1. The City also contends that, even if governmental immunity does apply and has been waived by

section 43.141 of the Local Government Code, a disannexation action such as the one brought by Rio Bravo

may only be brought via a quo warranto proceeding. This appeal, however, is brought on the trial court's order

denying the City's plea to the jurisdiction based on governmental immunity . The record does not reflect that

the trial court has ruled upon the City's plea to the jurisdiction based on any other grounds. As such, the issue

of whether a quo warranto proceeding is required is not before us, and we do not rule on that issue. See Tex.

R. App. P. 33.1(a)(2)(A).