Opinion

NUMBER 13-12-00341-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CAMERON COUNTY, TEXAS,

CARLOS H. CASCOS, SOPHIA BENAVIDES,

JOHN WOOD, DAVID A. GARZA, AND

EDNA TAMAYO, Appellants,

v.

FRANK A. TOMPKINS, INDIVIDUALLY

AND AS TRUSTEE,

CAROLYN TOMPKINS YOUNG,

PERRY TOMPKINS, AND LAWRENCE YOUNG, Appellees.

On appeal from the 138th District Court

of Cameron County, Texas.

OPINION

Before Chief Justice Valdez, and Justices Benavides and Perkes

Opinion by Justice Perkes

Ownership of land that comprises a portion of Andy Bowie Park on South Padre

Island is at issue in this lawsuit. Appellant Cameron County leased the land to a third

party so that a hotel could be built on it. Appellees Frank A. Tompkins, individually and

1

as Trustee, Carolyn Tompkins Young, Perry Tompkins, and Lawrence Young

(collectively “the Tompkinses”) sued Cameron County, Cameron County Judge Carlos H.

Cascos, and Cameron County Commissioners Sophia Benavides, John Wood, David A.

Garza, and Edna Tamayo (collectively “the County Officials”) in their official capacity,

alleging various causes of action, and contending that the lease violated an easement

that the land be used only “for public park, and parkway and park road” purposes. By a

single issue, Cameron County and the County Officials argue the trial court erred when it

denied their plea to the jurisdiction. 2 We affirm in part and reverse and remand in part.

1

Although Cameron County and the County Officials did not identify Perry Tompkins and

Lawrence Young as appellees, the record shows they are parties to this appeal. Pursuant to the trial

court’s November 16, 2010 order, Perry Tompkins and Lawrence Young joined this litigation as plaintiffs on

November 30, 2010 and were parties to the trial court’s order denying Cameron County and the County

Officials’ plea to the jurisdiction. The third supplemental clerk’s record reflects that Perry Tompkins and

Lawrence Young are the respective spouses of Frank A. Tompkins and Carolyn Tompkins Young.

2

This court has jurisdiction to hear an interlocutory appeal from an order denying a governmental

unit or its official’s plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (West 2008);

see also id. § 101.001 (West 2005) (defining “governmental unit” so as to include the County); Catalina

Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003) (holding a county is a governmental unit

protected by sovereign immunity); Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007) (“A

person sued in an official capacity should be able to appeal the denial of a jurisdictional plea in the same

way as his employing governmental unit because both defendants' interests in pleading sovereign immunity

are identical.”).

2

I. FACTUAL AND PROCEDURAL BACKGROUND3

A. Establishment of Andy Bowie Park

Frank A. Tompkins and Carolyn Tompkins Young are John L. Tompkins’ alleged

heirs. On July 11, 1952, John L. Tompkins, as Trustee, conveyed to Cameron County a

total of 224.672 acres of land located in Cameron County, Texas, “for public park, and

parkway and park road purposes” (collectively “Park Purposes”). On April 2, 1958, he

re-conveyed the same property to Cameron County but “correctly reflected” the acreage

as 225.818 acres to be used for Park Purposes. The Tompkinses maintain that the 1952

and 1958 instruments created a public park easement and that after the conveyance of

the easement, the County established Andy Bowie Park on the acreage.4

The Tompkinses allege that in 1969, John L. Tompkins, as Trustee, conveyed to

Frank A. Tompkins, as Trustee, the property he owned in Cameron County, including the

acreage which comprises Andy Bowie Park. The Tompkinses contend that Frank A.

Tompkins owns the property for the benefit of himself and the other appellees.

B. Construction of Convention Center on a Portion of Andy Bowie Park

In 1988 the Town of South Padre Island sought to construct a convention center

on a portion of Andy Bowie Park leased from Cameron County. Accordingly, in March

1989, Cameron County and the Town of South Padre Island filed a declaratory-judgment

action against Frank A. Tompkins, II5 and Carolyn Tompkins Young asking the district

3

Except as otherwise noted, the factual background is derived from the Tompkinses’ Fifth

Amended Original Petition, their live pleading in the trial court.

4

The County alleges that since 1952, it peacefully possessed the property known as Andy Bowie

Park.

5

The Tompkinses allege “Frank A. Tompkins is also known as Frank A. Tompkins, II.”

3

court6 to declare that the construction of a convention center on the land was consistent

with the requirement that the land be used solely for Park Purposes. After the case was

removed to federal court, the parties settled the declaratory-judgment action.

In connection with the settlement, the Tompkinses conveyed to the Town of South

Padre Island all of their right, title and interest in the property including, but not limited to,

any reversionary rights in the surface estate of a portion of Andy Bowie Park lying west of

the center line of Park Road 100. The Tompkinses contend that no other rights were

conveyed in connection with the settlement, but instead were reserved. The convention

center was later constructed on the property conveyed to the Town of South Padre Island.

C. Construction of a Hotel on Another Portion of Andy Bowie Park

On October 16, 2007, without the Tompkinses’ knowledge or agreement,

Cameron County, as approved by the County Judge and the County Commissioners,

entered into a concession agreement with Bharat R. Patel, President d/b/a Affiliated

Management Systems. Pursuant to the concession agreement, Cameron County

leased to Patel approximately 6.5 acres in Andy Bowie Park, thereby abandoning the

alleged Park Purposes easement on the leased property. The leased property is within

the area covered by the alleged Park Purposes Easement. The concession agreement

stated that the leased “property shall be used for business . . . including, but not limited to,

hotel amenities and the sale of restaurant-related food items . . . or any similar forms of

6

According to the Tompkinses’ live pleading, the lawsuit was styled Cameron County, Texas and

the Town of South Padre Island, Texas v. Frank A. Tompkins, II, and Carolyn T. Young, Cause No.

89-03-1150, in the 197th Judicial District Court of Cameron County, Texas.

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recreation/business facilities or shops normally found in a resort, spa, or Convention Style

Development Hotel.”

In March 2009, Cameron County and Affiliated Hospitality LLC entered into ground

lease agreements, leasing approximately 6.5 acres in Andy Bowie Park to Affiliated

Hospitality LLC. Affiliated Management Systems, Affiliated Hospitality LLC, and Patel 7

thereafter constructed a Hilton franchise hotel on the acreage of Andy Bowie Park leased

pursuant to the concession agreement and subsequent ground lease agreements.

The Tompkinses further allege that Cameron County later sought to lease

additional acreage of Andy Bowie Park to a private company, which was to be used as a

commercial hotel resort. The Tompkinses contend that on or about February 11, 2008,

Cameron County published a Request for Proposal for Hotel Resort Development on

20.91 acres of Andy Bowie Park. The Request for Proposal stated the “County is

interested in the development of a Time Share Resort Hotel” and “may consider a lease

for a minimum of an initial 40 year term with an option to extend.”

D. The Present Lawsuit

In October 2009, Frank A. Tompkins and Carolyn Tompkins sued the County and

County Officials. The Tompkinses allege that Cameron County and the County Officials,

by their conduct, abandoned the County’s easement to use the land for Park Purposes

and that Frank A. Tompkins, as Trustee, is the fee owner of the 6.5 acres leased for the

first hotel and the 20.91 acres proposed for the second hotel. According to the

7

The record reflects that Bharat R. Patel and the Affiliated entities settled with the Tompkinses

prior to the trial court’s denial of Cameron County’s plea to the jurisdiction and that they are no longer

parties to this litigation.

5

Tompkinses, Frank A. Tompkins presently owns the hotel and proposed-hotel acreage,

“including” the acreage which “comprises Andy Bowie Park,” (collectively “the Property”)

for his benefit and that of the other appellees. 8 The Tompkinses have asserted an

inverse-condemnation claim against the County and County Officials under the Texas

and United States Constitutions; seek a declaratory judgment that the County abandoned

its entire easement because a hotel is not a Park Purpose; seek declaratory judgment

that they own the Property in fee simple; and seek to quiet title to the Property based on

the County and County Officials’ abandonment of the easement.

Cameron County maintains that it is the fee owner of the acreage it leased to the

hotel or alternatively that the hotel is a Park Purpose. Approximately fifteen months after

this lawsuit was filed, the County asserted its plea to the jurisdiction. By its plea, the

County and County Officials argue that the trial court lacks jurisdiction over the

Tompkinses’ inverse-condemnation, declaratory-judgment, and quiet-title claims

because sovereign immunity bars the claims, and because the Tompkinses allegedly

failed to present these claims pre-suit in accordance with Texas Local Government Code

section 89.004. After a non-evidentiary hearing, the trial court denied the plea to the

jurisdiction in its entirety.9 This appeal ensued.

8

In their petition, the Tompkinses also characterize the land at issue in this litigation as “that

portion of Andy Bowie Park lying east of the center line of Park Road 100.”

9

In their plea to the jurisdiction, the County and County Officials did not challenge the

Tompkinses’ ultra-vires claims against the County Officials which appear to have first been pleaded on May

23, 2012 in the Tompkinses’ Fifth Amended Original Petition. Because the ultra-vires claims were not at

issue in the plea to the jurisdiction, they are not at issue in this appeal from the trial court’s order denying the

plea to the jurisdiction. We also note the County and County Officials do not specifically challenge the

ultra-vires claims in their appellate brief.

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II. ISSUES PRESENTED

Appellants’ sole issue on appeal challenges the trial court’s denial of their plea to

the jurisdiction. By several sub-issues, 10 appellants argue that the trial court lacks

jurisdiction because: (1) the claims against the County are barred by sovereign

immunity; (2) the claims against the County are barred because of the failure to provide

the sixty-day pre-suit notice, see TEX. LOCAL GOV’T CODE ANN. § 89.004; (3) the claims

against the County Officials are barred by sovereign immunity because they were only

sued in their official capacity; and (4) the Tompkinses lack standing to assert their claims

in this lawsuit.

III. STANDARD OF REVIEW

To render a binding judgment, a court must have both subject-matter jurisdiction

over the controversy and personal jurisdiction over the parties. Spir Star AG v. Kimich,

310 S.W.3d 868, 871 (Tex. 2010). A plaintiff bears the burden of alleging facts that

affirmatively demonstrate the trial court's jurisdiction. Tex. Dep't of Transp. v. Ramirez,

74 S.W.3d 864, 867 (Tex. 2002); State of Tex. Parks & Wildlife Dept. v. Morris, 129

S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.).

A plea to the jurisdiction is a dilatory plea; its purpose is to defeat a cause of action

without regard to whether the claims asserted have merit. Hidalgo County v. Dyer, 358

S.W.3d 698, 703 (Tex. App.—Corpus Christi 2011, no pet.). In deciding a plea to the

jurisdiction, a court may not weigh the merits of the causes of action, but must consider

only the plaintiff’s pleadings and any evidence in the record pertinent to the jurisdictional

10

Appellants have not numbered their sub-issues, so we will be relying upon our enumeration in

disposing of their respective sub-issues on appeal.

7

inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); City of Laredo v.

Nuno, 94 S.W.3d 786, 788 (Tex. App.—San Antonio 2002, no pet.). The reviewing court

should address the existence of subject-matter jurisdiction claim-by-claim. See, e.g.,

Dyer, 358 S.W.3d at 704 (citing Thomas v. Long, 207 S.W.3d 334, 338–39 (Tex. 2006)).

An order denying a plea to the jurisdiction based on governmental immunity is

reviewed de novo. See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226, 228 (Tex. 2004). If a plea to the jurisdiction challenges the pleadings, the reviewing

court must construe the pleadings liberally in favor of the plaintiff. Id. at 226. If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the

plaintiffs should be afforded the opportunity to amend their pleadings. Id. at 226–27. If

the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court

may consider relevant evidence submitted by the parties. Id. at 227. A court must take

as true all evidence favorable to the nonmovant and indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. Id. at 228. If the evidence creates a

fact question regarding jurisdiction, the trial court cannot grant the plea, and the fact issue

must be resolved by the fact-finder. Id. at 227–28.

IV. ANALYSIS

A. Immunity Bars the Tompkinses’ Quiet-Title and Declaratory-Judgment Claims

By their first sub-issues, the County and County Officials argue that immunity bars

the Tompkinses’ claims for quiet title and declaratory judgment because they are in

essence trespass-to-try-title claims. We agree.

8

A county is a governmental unit protected by sovereign immunity. Catalina Dev.,

Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). The Supreme Court of

Texas recently reaffirmed that, without the State’s consent, a trespass-to-try-title action

against the State is barred by sovereign immunity even if it is brought as a declaratory-

judgment action under the Declaratory Judgments Act. Tex. Parks & Wildlife Dept v.

Sawyer Trust, 354 S.W.3d 384, 388–89 (Tex. 2011) (citing TEX. PROP. CODE ANN. §

22.001(a) & TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a)). The Declaratory

Judgments Act may not be used to create a right of action against the State that would not

otherwise exist. Id. at 388. Under Sawyer Trust, suits to try the State’s title to property

are immunity-barred and we look to the “real substance” of a declaratory-judgment action

to determine whether it is a claim for title. Id. at 389.

A suit to “quiet title” and a “trespass-to-try-title claim” are both actions to recover

possession of land unlawfully withheld, though a quiet-title suit is an equitable remedy

whereas a trespass-to-try-title suit is a legal remedy afforded by statute. Porretto v.

Patterson, 251 S.W.3d 701, 708 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing

Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex. App.—Corpus Christi 1977, writ ref’d

n.r.e.)). Here, the Tompkinses’ “quiet title” suit is barred because it is a suit against the

State for title to land—which is barred by governmental immunity. See id.; see also

Sawyer Trust, 354 S.W.3d at 388. At oral argument, counsel for the Tompkinses

unequivocally stated that by their quiet-title suit, the Tompkinses seek judgment that they

are the fee owners of the Property. This proposed remedy is evident from their

pleadings as well.

9

We disagree with the Tompkinses that the County waived its immunity from suit for

the quiet-title claim by defending itself against the present lawsuit. The Thompkinses

argue that by seeking a summary judgment that it held the title to the Property and by

waiting fifteen months after suit was filed to assert its plea to the jurisdiction, the County

waived its immunity as to the quiet-title claim. We disagree. It is the province of the

Legislature, not the judicial branch, to create a waiver-by-conduct exception to sovereign

immunity in this context; it has not done so for title claims. Further, the County did not

counterclaim or otherwise plead a claim for damages against which any recovery against

the County could be offset. See Sharyland Water Supply Corp. v. City of Alton, 354

S.W.3d 407, 413–14 (Tex. 2011) (rejecting argument that equity required a waiver of

immunity by conduct in a breach-of-contract suit); see also Webb County v. Khaledi

Props., Ltd., No-04-12-00251-CV, 2013 WL 3871060, at *3 (Tex. App.—San Antonio July

24, 2013, no pet. h.) (mem. op.) (explaining if an equitable waiver-by-conduct exception

to sovereign immunity is viable in Texas, it would apply in “exceptional” circumstances).

To hold the County waived its immunity from quiet-title claims by its conduct in this

litigation would defeat the litigation-avoidance purpose of governmental immunity and

potentially engender further litigation concerning the extent to which the County waived

its immunity. See City of Alton, 354 S.W.3d at 414.

The Tompkinses’ declaratory-judgment action fails because it too is a claim for title

to land. 354 S.W.3d at 386. In Sawyer Trust, the Sawyer Trust sued the Texas Parks

and Wildlife Department for a declaratory judgment that a river running through the

Trust’s land was not navigable and that the Trust therefore owned the riverbed. Id. at

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385. The Supreme Court held the Trust’s claim for declaratory judgment was

immunity-barred because the “real substance” of the Trust’s declaratory-judgment action

was a claim for title against the State. Id. at 389. In this case, as shown by their live

pleading at the time of the hearing on the plea to the jurisdiction, the Tompkinses seek the

following relief by their declaratory-judgment action:

a judgment declaring that: (1) the County was granted an easement, not a

fee simple interest, in the land in question; (2) leasing the land to resort

hotels does not qualify as using the land for [Park Purposes]; (3) the County

thereby abandoned the [e]asement by allowing the development and

construction of a hotel on the land and actively encouraging the

development and construction of a second hotel resort on the [P]roperty; (4)

the [e]asement terminated as a result of the County’s abandonment of the

[e]asement; and (5) the Tompkins[es] own the land unburdened by the

[e]asement.

During oral argument, the Tompkinses’ counsel unequivocally asserted that by

their declaratory-judgment action, the Tompkinses seek declaratory judgment that they

are the fee owners of the Property. Like the requested non-navigability declaration in

Sawyer Trust, the effect of the requested declaration that the County abandoned the Park

Purposes easement would be to establish title in the Tompkins. Thus, the Tompkinses’

declaratory judgment action against the County and County Officials is barred because,

in substance, it is a suit for title to land brought against the State. See id. We sustain

the County’s first sub-issue to the extent it challenges the Tompkins’ quiet-title and

declaratory-judgment claims.

B. The Tompkinses’ Inverse-Condemnation Claim

By their first sub-issue, the County and County Officials also argue the

Tompkinses’ inverse-condemnation claim is immunity-barred. By their

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inverse-condemnation claim, as set forth at oral argument and in their live pleading and

appellate brief, the Tompkinses seek monetary compensation for the County’s alleged

taking of their property for public use—a hotel. The County argues there is no evidence

of a taking in this case because it was acting akin to a private party leasing private

property it owned. We agree with the Tompkinses.

The Texas Constitution provides that “[n]o person's property shall be taken,

damaged, or destroyed for or applied to public use without adequate compensation being

made, unless by the consent of such person.” TEX. CONST. art. I, § 17. Likewise, the

United States Constitution provides “nor shall private property be taken for public use,

without just compensation.” U.S. CONST. amend. V. Sovereign immunity does not

shield the State from claims based on unconstitutional takings of property. Sawyer

Trust, 354 S.W.3d at 390. Whether the government's actions are sufficient to constitute

a taking is a question of law. Id. (citing Gen. Servs. Comm'n v. Little–Tex Insulation Co.,

39 S.W.3d 591, 598 (Tex. 2001)).

To establish a takings claim, the claimant must seek compensation because the

defendant intentionally performed actions that resulted in taking, damaging, or destroying

property for public use without the owner's consent. Id. at 390–91. “Whether a taking

has occurred depends largely on definitional and conceptual issues.” Id. at 391 (citing

2A JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN § 6.01[1] (3d ed. 2006)). The

premise for a constitutional-takings cause of action is that one person should not have to

absorb the cost of his property being put to a public use unless he consents. Id. “[I]f the

government could claim immunity for a taking by simply asserting title, then it need never

12

legally condemn land—it ‘could simply appropriate it, and the landowner would be entitled

to no compensation unless the Legislature granted him permission to sue.” Porretto,

251 S.W.3d at 708 (quoting Griffin v. Hawn, 341 S.W.2d 151, 153 (Tex. 1960)).

Both the County and the Tompkinses claim that they own the land, and viewing, as

we must, the Tompkinses’ allegation in the light most favorable to conferring jurisdiction,11

an allegation that the County conveyed leasehold rights to a third party on land they own

for public use and without consent or compensation is an allegation of a taking.12 See id.

at 709 (citing State v. Reimer, 94 S.W.3d 103, 109 (Tex. App.—Amarillo 2002, no pet.)

(holding that allegations that State’s lease and other actions that resulted in taking of oil

and gas were sufficient to state an inverse-condemnation claim); Kenedy Mem’l Found. v.

Mauro, 921 S.W.2d 278, 282 (Tex. App.—Corpus Christi 1995, writ denied) (holding an

inverse-condemnation claim survived jurisdictional plea where the foundation alleged that

state mineral leases encroached on the foundation’s property)). Particularly in light of

the County’s prior lawsuit against the Tompkinses to secure its right to lease land for a

convention center in Andy Bowie Park, we find this case distinguishable from one in which

11

At oral argument, the County adamantly maintained that determining the issue of who owns the

Property is an issue that is not before this Court in this interlocutory appeal. We agree. In ruling on the

County’s motion that the Tompkinses are estopped as a matter of law from claiming ownership of the

Property because they allegedly failed to disclose their ownership interest in a prior bankruptcy, the trial

court ruled that the County did not prove estoppel as a matter of law. There may be a fact issue on

whether the Tompkinses failed to disclose their ownership interest in the Property in the bankruptcy as

could result in their ownership stake, if any, becoming part of the bankruptcy estate subject to the

bankruptcy trustee’s disposal. That bankruptcy issue has not been briefed in this interlocutory appeal, nor

was the apparently voluminous record on this issue, developed before a special master in the trial court,

included in the appellate record.

12

Immunity does not bar an inverse-condemnation claim. Porretto v. Patterson, 251 S.W.3d 701,

708 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (explaining that a takings claim is not equivalent to a

trespass-to-try-title suit because the relief available for a takings differs from a suit to quiet title and

concluding that immunity does not bar a takings claim); Kenedy Mem’l Found. v. Mauro, 921 S.W.2d 278,

281–82 (Tex. App.—Corpus Christi 1995, writ denied) (“Governmental immunity offers no shield against a

taking claim brought under Article I section 17 of the Texas Constitution.”).

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the State’s ownership claim is uncontested. See id. at 709–10. We overrule the

County’s first sub-issue to the extent it challenges the Tompkinses’

inverse-condemnation claim.

C. Local Government Code Section 89.004

By their second sub-issue, the County and County Officials argue the Tompkinses’

alleged failure to comply with the pre-suit notice requirements of Texas Local

Government Code section 89.004 is a jurisdictional bar to their claims in this lawsuit. In

pertinent part, the current version of section 89.004 provides as follows:

(a) Except as provided by Subsection (c), a person may not file suit on a

claim against a county or an elected or appointed county official in the

official's capacity as an appointed or elected official unless the person has

presented the claim to the commissioners court and the commissioners

court neglects or refuses to pay all or part of the claim before the 60th day

after the date of the presentation of the claim.

....

(c) A person may file a suit for injunctive relief against a county. After the

court's ruling on the application for temporary injunctive relief, any portion of

the suit that seeks monetary damages shall be abated until the claim is

presented to the commissioners court and the commissioners court

neglects or refuses to pay all or part of the claim by the 60th day after the

date of the presentation of the claim.

TEX. LOCAL GOV’T. CODE ANN. § 89.004(a), (c) (West 2008).

Section 89.004 is a presentment statute that promotes settlement by allowing a

county commissioners court an opportunity to investigate a claim and adjust it without

litigation. See Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1998)

(discussing presentment statute). The presentment statute and its predecessors “date

back well over one hundred years.” Id. at 188.

The County and County Officials have not briefed whether the current version of

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section 89.004 is applicable to this lawsuit. See TEX. R. APP. 38.1. Instead, they

assume it applies. However, the enabling legislation for the statute states, “This Act

applies only to a claim arising under a contract executed on or after September 1, 2003.

A claim that arises under a contract executed before September 1, 2003, is governed by

the law as it existed on the date the contract is executed, and the former law is continued

in effect for that purpose.”13 See Section 4(b) of Acts 2003, 78th Leg., ch. 1203. The

claims at issue in this litigation arise under deeds executed in 1952 and 1958,

respectively.

Assuming without deciding that section 89.004 or its predecessor statute applies

to the Tompkinses’ inverse-condemnation claim, we hold it is not a jurisdictional bar to the

Tompkinses’ inverse-condemnation claim, see Forge v. Nueces County, 350 S.W.3d

740, 745 (Tex. App.—Corpus Christi 2011, no pet.), and that the County waived its right to

demand compliance with the presentment statute because it waited until after the

purposes of the presentment statute—to promote settlement and avoid litigation—were

defeated to invoke the statute, see Garcia-Marroquin v. Nueces County Bail Bond Bd., 1

S.W.3d 366, 374 (Tex. App.—Corpus Christi 1999, no pet.). Rather than invoking the

presentment statute at the time of filing their answer or shortly thereafter, the County and

County Officials litigated this case on the merits for well over a year before arguing the

Tompkinses failed to present the inverse-condemnation claim to the commissioners court

13

We note that the immediate predecessor to the current presentment statute, then section

81.041 of the Texas Local Government Code, provided, ‘A person may not sue on a claim against a county

unless the person has presented a claim to the commissioners court and the commissioners court has

neglected or refused to pay all of the claim.’ Dallas County v. Coutee, 233 S.W.3d 542, 545 (Tex.

App.—Dallas 2007, pet. denied) (quoting TEX. LOCAL GOV’T. CODE ANN. § 81.041(a) [Vernon 1999]). The

Tompkinses quote the predecessor statute in their appellate brief and note it is “substantively the same as”

the current statute.

15

for payment prior to filing suit. See id. The County filed motions for summary judgment,

filed multiple pleadings, and participated in numerous hearings on the merits before

raising this argument.

We overrule the County and County Officials’ second sub-issue. Because

sovereign immunity bars the Tompkinses’ quiet-title and declaratory judgment claims, we

need not consider whether they would be barred under section 89.004. 14 See TEX. R.

APP. P. 47.1.

D. The County Officials’ Immunity in this Lawsuit

By their third sub-issue, the County and County Officials argue that their immunity

is co-extensive in this lawsuit. We agree that the County Officials have co-extensive

immunity with the County for the Tompkinses’ quiet-title, declaratory-judgment, and

inverse-condemnation claims because the County Officials were sued in their official

capacity, and not as individuals. See Nueces County v. Ferguson, 97 S.W.3d 205,

214–15 (Tex. App.—Corpus Christi 2002, no pet.). We sustain the County and County

Officials’ third sub-issue. As discussed above, however, we conclude the Tompkinses’

inverse-condemnation claim survives the County and County Officials’ plea to the

jurisdiction on the record presently before us and we express no opinion herein on the

viability of the Tompkinses’ ultra-vires claims against the County Officials in their official

capacity.

14

We express no opinion regarding whether the Tompkinses presented their ultra-vires claims, if

necessary, because the issue was not specifically briefed. The Tompkinses’ live pleading is silent on the

issue and the broad language of the Tompkinses’ presentment affidavit leaves open the possibility that the

ultra-vires claims are among the “various additional claims” the Tompkinses allegedly presented pre-suit.

16

E. The Tompkinses’ Standing to Bring this Lawsuit

By their fourth sub-issue, the County and County Officials argue that the Tompkins

lack standing to bring this lawsuit because they are not the owners of the Property. 15

The general test for standing in Texas requires that there be a real controversy

between the parties that will be actually determined by the judicial declaration sought.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plaintiff

has standing to sue if: (1) the plaintiff has sustained, or is immediately in danger of

sustaining, some direct injury as a result of a complained-of wrongful act; (2) there is a

direct relationship between the alleged injury and the claim asserted; (3) the plaintiff has a

personal stake in the controversy; (4) the challenged action has caused the plaintiff some

injury in fact; or (5) the plaintiff is an appropriate party to assert both its own interest and

the public interest in the matter. AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632,

649 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); El Paso Cmty. Partners v. B &

G/Sunrise Joint Venture, 24 S.W.3d 620, 624 (Tex. App.—Austin 2000, no pet.).

The record shows that the Tompkinses have standing to bring this lawsuit because

they asserted an ownership interest in the Property and a related injury, and because

they presented a real controversy between themselves and the County concerning that

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The County and County Officials are permitted to raise the standing issue for the first time on

appeal, although it is preferable to raise the issue as early as possible in litigation. See Waco Indep. Sch.

Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (holding ripeness and standing components of

subject-matter jurisdiction could be raised for first time in interlocutory appeal concerning whether plaintiffs

exhausted their administrative remedies prior to filing suit); see also Manbeck v. Austin Indep. Sch. Dist.,

381 S.W.3d 528, 531 (Tex. 2012) (holding school district could raise challenge implicating lack of

subject-matter jurisdiction for the first time on appeal though preferred practice is to raise the issue at the

earliest opportunity); Rusk State Hosp. v. Black, 392 S.W.3d 88, 94 (Tex. 2012) (holding subject-matter

jurisdiction can be challenged for first time on interlocutory appeal).

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ownership interest. See e.g., City of San Antonio v. Rogers Shavano Ranch, Ltd., 383

S.W.3d 234, 246 (Tex. App.—San Antonio, pet. denied).

At oral argument, the County and County Officials argued for the first time in this

litigation that the Tompkinses lack standing because they forfeited their ownership

interest in the Property by failing to disclose their ownership interest in a prior bankruptcy

proceeding. See e.g., Bailey v. Barnhart Interest, Inc., 287 S.W.3d 906, 909–10 (Tex.

App.—Houston 2009 [14th Dist], no pet.) (explaining that once an asset becomes part of

a bankruptcy estate, the debtor’s rights in the asset are extinguished and a debtor is

under a continuing duty to disclose its assets); see also In re Superior Crewboats, Inc.,

374 F.3d 330, 335 (5th Cir. 2004) (concluding nondisclosure of sizeable asset in

bankruptcy was not inadvertent and holding debtors were therefore estopped from

claiming asset). The record, however, does not include the evidence presented in the

trial court wherein the County and County Officials argued the bankruptcy matter as an

issue of estoppel, as opposed to one of standing. In their live pleading, the Tompkinses

do not make any assertions pertaining to the alleged nondisclosure of their property

interest in the bankruptcy. Because the Tompkinses may be able to amend their

pleading to include facts demonstrating their standing in light of the prior bankruptcy,

under the applicable standard of review, we must allow them the opportunity to do so.

See Miranda, 133 S.W.3d 226–27; Hendee v. Dewhurst, 228 S.W.3d 354, 382 (Tex.

App.—Austin 2007, review denied). We overrule the County and County Officials’ fourth

sub-issue.

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V. CONCLUSION

We reverse the trial court’s order denying the County’s plea to the jurisdiction

regarding the Tompkinses’ quiet-title and declaratory-judgment claims, and render

judgment dismissing those claims with prejudice. We affirm the trial court’s denial of the

County and County Officials’ plea to the jurisdiction regarding the Tompkinses’ inverse-

condemnation claim. This case is remanded to the trial court for proceedings consistent

with this opinion.

GREGORY T. PERKES

Justice

Delivered and filed the

24th day of October, 2013.

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