Josh Schroeder, in His Official Capacity as Chair of the City of Georgetown Planning and Zoning Commission, Along With the Following Members of the Planning and Zoning Commission Also in Their Official Capacities: Tim Bargainer, John Marler, Ercel Brashear, Kayla McCord, Gary Newman, and Ben Stewart v. Escalera Ranch Owners' Association, Inc.

Supreme Court of Texas

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No. 20-0855

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Josh Schroeder in His Official Capacity as Chair of the City of

Georgetown Planning and Zoning Commission, Along with the

Following Members of the Planning and Zoning Commission Also

in Their Official Capacities: Tim Bargainer, John Marler, Ercel

Brashear, Kayla McCord, Gary Newman, and Ben Stewart,

Petitioners,

v.

Escalera Ranch Owners’ Association, Inc.,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Seventh District of Texas

═══════════════════════════════════════

Argued February 23, 2022

CHIEF JUSTICE HECHT delivered the opinion of the Court.

We decide whether governmental immunity protects a zoning

commission’s determination that a proposed subdivision conforms with

applicable law. We hold that it does, absent a clear abuse of discretion.

We therefore reverse the judgment of the court of appeals. 1

I

Escalera Ranch is a subdivision within the City of Georgetown’s

extraterritorial jurisdiction. It and a neighboring subdivision contain

some 150 homes and 15 vacant lots, combined. Both subdivisions are

accessed via Escalera Parkway, a winding residential street that

traverses Escalera Ranch. A developer applied to the City’s Planning

and Zoning Commission for approval of a preliminary plat for a new 89-

home subdivision, Patience Ranch, neighboring Escalera Ranch to the

north. As planned, Escalera Parkway would provide the only access to

homes in the new subdivision.

Several Escalera Ranch residents expressed concerns that traffic

on the Parkway would increase to an unsafe level and impede access by

emergency services. They asserted that the plat did not conform to the

City’s Unified Development Code (UDC). They claimed that under the

UDC, streets like Escalera Parkway are expected to carry no more than

800 vehicles per day and serve a maximum of 80 dwelling units, while

the Patience Ranch developer’s traffic survey showed that the Parkway

already carried almost 1,200 vehicles per day before the new

development. The Escalera Ranch residents also asserted that the plan

did not conform to a requirement of the International Fire Code, which

the City had adopted, that there be two separate fire-access roads for

the area. The Patience Ranch plat provided only one: Escalera Parkway.

1 610 S.W.3d 521, 528 (Tex. App.—Amarillo 2020).

2

But the Patience Ranch and Escalera Ranch subdivisions were

proposed to connect with future development, which would provide

another access point and reduce traffic levels on Escalera Parkway. A

connection with future development was also an express exception to the

two-fire-access-road requirement. After analysis, Commission staff

reported that “[t]he proposed Preliminary Plat meets all of the

requirements of the [UDC] for a 95-lot (89 single-family lots and six (6)

landscape lots) residential subdivision.” And at a public meeting, the

City’s Assistant Fire Chief agreed that the new subdivision would meet

fire code standards. Given this determination that the Patience Ranch

development conformed to applicable requirements, the Commission

concluded that it had a ministerial duty to approve the plat as required

by statute. 2

The Escalera Ranch Owners’ Association sued the Commission

members in their official capacities, asserting that the Patience Ranch

plat was nonconforming and that their approval of the plat was a clear

abuse of discretion. The Association sought mandamus relief directing

the Commissioners to rescind their approval of the plat. In a plea to the

jurisdiction, the Commissioners argued that they had a ministerial duty

to approve a plat they had determined to be conforming and that the

Association lacked standing to sue, so mandamus could not lie. The trial

court granted the Commissioners’ plea. The Association appealed.

2 TEX. LOC. GOV’T CODE § 212.005 (“The municipal authority

responsible for approving plats must approve a plat . . . that satisfies all

applicable regulations.”); id. § 212.010(a) (stating that “[t]he municipal

authority responsible for approving plats shall approve a plat” that conforms

to municipal rules and other law).

3

The court of appeals reversed. 3 The court first determined that

the Association had standing based on its assertions that traffic levels

on Escalera Parkway would exceed those contemplated by the street’s

design. 4 The increased traffic and the accompanying safety risks

amounted to a particularized injury. The court then determined that

while the Commissioners had a ministerial duty to approve a

conforming plat, their determination of whether the plat was in fact

conforming was a matter of discretion that could be judicially reviewed

for a clear abuse. 5 The court concluded that the Association had raised

a fact issue of whether the Commissioners had clearly abused their

discretion in approving the plat.

We granted review.

II

“[P]lat approval is a discretionary function that only a

governmental unit can perform.” 6 But once the relevant governmental

unit determines that a plat conforms to applicable regulations, it has a

ministerial duty to approve that plat. 7 The Commission made such a

determination in this case. If correct in its determination of conformity,

3 610 S.W.3d at 528.

4 Id. at 525-526.

5 Id. at 526-528.

6 City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985).

7 See TEX. LOC. GOV’T CODE §§ 212.005, 212.010; Howeth Invs., Inc. v.

City of Hedwig Village, 259 S.W.3d 877, 895 (Tex. App.—Houston [1st Dist.]

2008, pet. denied) (“[I]n situations in which the plat applicant has done all that

the statutes and law demand[], the approval of the plat becomes a mere

ministerial duty.” (cleaned up)).

4

then the Commission had a ministerial duty to approve the plat. The

Association argues that the Patience Ranch plat did not conform to the

UDC, and therefore the Commissioners clearly abused their discretion

in approving it.

Governmental immunity protects the State’s political

subdivisions from suit and liability. 8 The Legislature may waive

governmental immunity by statute. 9 The Association concedes that it

has not done so in the case of plat approval. However, governmental

immunity will “not bar a suit against a government officer for acting

outside his authority—i.e., an ultra vires suit.” 10

“To fall within this ultra vires exception, a suit must not complain

of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or

failed to perform a purely ministerial act.” 11 “[A] government officer with

some discretion to interpret and apply a law may nonetheless act

‘without legal authority,’ and thus ultra vires, if he exceeds the bounds

of his granted authority or if his acts conflict with the law itself.” 12 If the

8Chambers–Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339,

344 (Tex. 2019).

9Id.; Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849,

853-854 (Tex. 2002).

10Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,

161 (Tex. 2016); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.

2009) (“[S]uits to require state officials to comply with [the law] are not

prohibited by sovereign immunity . . . .”).

11 Heinrich, 284 S.W.3d at 372.

12 Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017) (quoting Hous.

Belt, 487 S.W.3d at 158).

5

challenged actions “were not truly outside the officer’s authority or in

conflict with the law,” then the plaintiff has not stated a valid ultra vires

claim and governmental immunity will bar the suit. 13

Mandamus seeking to compel action by a public official “falls

within the ultra vires rationale.” 14 Accordingly, writs of mandamus can

issue against a public official to compel the official to perform a

ministerial act. 15 “An act is ministerial when the law clearly spells out

the duty to be performed by the official with sufficient certainty that

nothing is left to the exercise of discretion.” 16 But as a general rule, “a

writ of mandamus will not issue to compel a public official to perform an

act which involves an exercise of discretion.” 17

The Local Government Code does not create a ministerial duty to

deny a nonconforming plat. To the contrary, recordable plats that are

not acted upon within 30 days must be approved, even without a

determination of conformity. 18 And the parties agree that the

13Matzen v. McLane, ___ S.W.3d ___, 2021 WL 5977218, at *4 (Tex. Dec.

17, 2021).

14 Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 n.2 (Tex. 2011);

see City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 576

(Tex. 2018) (“In cases in which the alleged ultra vires conduct is governmental

inaction, a court may issue a writ of mandamus compelling action to bring the

official into conformance with the law.”).

15 Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

16 Id.

17 Id.

18TEX. LOC. GOV’T CODE § 212.009(a); see Howeth Invs., 259 S.W.3d at

899-901 (holding that the 30-day rule cannot be enforced unless the plat meets

the formal recording requirements of Texas Local Government Code

Chapter 212).

6

Commissioners exercise discretion in determining whether a plat is

conforming. So under the general rule, mandamus against the

Commissioners to compel denial of a plat cannot lie. But there is an

exception to this rule—we have said that, “in a proper case”, a writ of

mandamus may issue to correct a public official’s “clear abuse of

discretion”. 19 The Association argues that mandamus is available

against the Commissioners under this exception.

As we stated in City of El Paso v. Heinrich, governmental

immunity will not protect an officer when he “act[s] without legal

authority or fail[s] to perform a purely ministerial act.” 20 In Houston

Belt & Terminal Railway Co. v. City of Houston, we clarified what it

meant to act “without legal authority”. 21 We explained that

“governmental immunity bars suits complaining of an exercise of

absolute discretion but not suits complaining of . . . an officer’s exercise

of judgment or limited discretion without reference to or in conflict with

the constraints of the law authorizing the official to act.” 22 However,

“whether a suit attacking an exercise of limited discretion will be barred

is dependent upon the grant of authority at issue”. 23 Thus, even grants

19 Anderson, 806 S.W.2d at 793 (citing Womack v. Berry, 291 S.W.2d

677, 682 (Tex. 1956); Dykes v. City of Houston, 406 S.W.2d 176, 183 (Tex.

1966)).

20 284 S.W.3d 366, 372 (Tex. 2009).

21 487 S.W.3d 154 (Tex. 2016).

22 Id. at 163.

23 Id. at 164.

7

of limited discretion “will [often] be broad enough to bar most, if not all,

allegedly ultra vires claims.” 24

Applying this standard, we held that the plaintiff–railroads’

challenge to a drainage fee could proceed as an ultra vires suit. The

pleadings alleged an action by the official outside the scope of his

discretion. The ordinance charged the official with “administration of

[the ordinance] . . . in accordance with and subject to the provision of

[the ordinance].” 25 We explained that this duty did not give the official

absolute discretion to interpret the terms of the ordinance. Instead, the

ordinance bound the official to apply the definitions expressly provided

in the manner stated by the ordinance. 26

We distinguished Houston Belt in Hall v. McRaven. 27 In

McRaven, a regent of a public university sought a writ of mandamus

against its chancellor to compel production of university records. 28 The

chancellor had determined that federal law protected the records. The

issue was whether the chancellor’s discretion to interpret federal law

could be challenged in court. While university rules gave the chancellor

24Id. (citing Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 11

(Tex. 2015)). In Klumb, we held that, as a matter of law, the governmental

entity acted within its broad grant of discretion to administer a pension fund

and governmental immunity barred the suit. 458 S.W.3d at 10-11. However,

we noted that this discretion did have its limits, and that a proper case could

arise under which “a particular interpretation of the [pension-administration]

statute could be ultra vires.” Id. at 11.

25 Hous. Belt, 487 S.W.3d at 165.

26 Id. at 165-169.

27 508 S.W.3d 232, 241-243 (Tex. 2017).

28 Id. at 237.

8

a duty to “determine whether a Regent may review information

protected by” federal law, we distinguished this duty from the duty at

issue in Houston Belt, which “limited [the public official’s discretion] in

how he reached a conclusion.” 29 We explained that “[w]hen the ultimate

and unrestrained objective of an official’s duty is to interpret collateral

law, a misinterpretation is not overstepping such authority; it is a

compliant action even if ultimately erroneous.” 30 Thus, the chancellor’s

discretion under university rules to interpret federal law was not subject

to judicial review. 31

The reasoning in McRaven governs here. Under the City’s UDC,

“[t]he Planning and Zoning Commission shall be responsible for

considering and taking final action on . . . Preliminary Plat[s]”. 32 In

turn, “[n]o Preliminary Plat shall be approved without a determination

[by the Commission] that the plat conforms” to UDC requirements and

other law. 33 In making this determination, the only restriction on the

29 Id. at 242.

30 Id.

31 Id. at 243.

32 Georgetown, Tex., Unified Dev. Code § 2.05.010(A)(1). The parties

agree that the plat must be evaluated under the UDC in place at the time that

the plat was submitted in February 2017. See TEX. LOC. GOV’T CODE

§ 245.002(a)(2). Except for the provisions of Chapter 12, the UDC provisions

relevant to this case have not been amended, and so we cite to the current

version. Citations to Chapter 12 are to the 2017 version included in the record

and noted with a date parenthetical.

33Georgetown, Tex., Unified Dev. Code § 3.08.070(C)(2). Because this

case does not involve any alleged violation of Texas Local Government Code

Section 212.009(a)’s 30-day rule, we need not address the possible conflict

between that rule, which requires plat approval in the face of municipality

9

Commission’s discretion is that it must “consider the Preliminary Plat

application, the Director’s report, State law, and compliance with this

Unified Development Code”. 34

The UDC directs the Commission to determine a plat’s

conformity. As we have said, this determination is a discretionary one

that necessarily involves “interpret[ing] and constru[ing] . . . applicable

ordinances”. 35 While the UDC limits the discretion of what the

Commission may consider, it does not otherwise restrict the

Commission’s exercise of its discretion to determine conformity. 36

The Association points to Section 12.01.040(B) in the “Pedestrian

and Vehicle Circulation” chapter, which states that “[n]o subdivision

shall be approved until conformance to [the relevant transportation

standards] is demonstrated.” 37 But this provision does not create an

avenue of review. It instead reiterates that the Commission’s duty is to

interpret the UDC, just as the chancellor’s duty in Hall was to interpret

federal law. All that Section 12.01.040(B) requires is that “conformance

[be] demonstrated” to the Commission. After reviewing and considering

the proper items, the Commission determined, as a discretionary act,

that the required conformance had been demonstrated in this case. This

satisfied Section 12.01.040(B).

inaction, and this UDC provision (and others like it), which require municipal

action before plat approval.

34 Id. § 3.08.070(D)(1).

35 City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985).

36 See McRaven, 808 S.W.3d at 242-243.

37 Georgetown, Tex., Unified Dev. Code § 12.01.040(B) (2017).

10

Provided that the Commissioners fully consider the applicability

of UDC requirements to a plat, the UDC commits to them the discretion

to determine a plat’s conformity for approval purposes. The

Commissioners upheld their legal duty to “consider[]

[the] . . . Preliminary Plat”, 38 “determin[e] that the plat conforms” to the

law, 39 and decide whether “conformance to [the applicable standards

had been] demonstrated.” 40 After concluding that the plat conformed,

the Commissioners approved it—as required by statute. Even if

incorrect in their conclusion, the Commissioners did not exceed the

scope of their authority. 41 The Association does not allege that the

Commissioners made the conformity determination based on improper

considerations. 42 Instead, the Association asserts that the

Commissioners simply got the determination wrong. Neither the UDC

38 Id. § 2.05.010(A)(1).

39 Id. § 3.08.070(C)(2).

40 Id. § 12.01.040(B) (2017).

41 See McRaven, 508 S.W.3d at 242.

42 In any event, the record before us establishes that the Commission

considered the director’s report (which determined that all UDC requirements

were met), recognized its ministerial duty under State law to approve a

conforming plat, and addressed the specific compliance concerns raised by

Escalera Ranch. Accordingly, we do not give the Association an opportunity to

replead its claim. See Von Dohlen v. City of San Antonio, 643 S.W.3d 387, 397

(Tex. 2022) (“Texas courts allow parties to replead unless their pleadings

demonstrate incurable defects.”).

11

nor State law allow third parties to second-guess the Commission’s

decision in this way. 43

The platting process is intended to be an expeditious one that

favors approval. The Legislature created a ministerial duty to approve

a conforming plat, with no reciprocal duty to deny a nonconforming one.

If a municipal planning and zoning commission wants to deny a plat for

nonconformance, it has only thirty days to do so. 44 After that, the plat is

generally approved—even if nonconforming. 45 And unlike the related

field of zoning, where the Legislature has statutorily approved suits by

a broad swath of plaintiffs to challenge allegedly improper zoning

decisions, 46 the Legislature has not created a mechanism for third

parties to seek judicial review of a municipality’s platting approval.

43 Our decision today does not impact an appropriate party’s ability to

challenge an allegedly improper denial of a plat. In that case, there is a

ministerial duty to approve all conforming plats—not just plats that the

responsible authority determines are conforming. TEX. LOC. GOV’T CODE

§ 212.005 (“The municipal authority responsible for approving plats must

approve a plat . . . that satisfies all applicable regulations.”); id. § 212.010

(stating that “[t]he municipal authority responsible for approving plats shall

approve a plat” that conforms to municipal rules and other law). A recent

amendment bolsters this right. Id. § 212.0099 (setting out a municipality’s

burden for supporting a disapproval “[i]n a legal action challenging a

disapproval of a . . . plat”). As discussed, there is no corresponding duty under

State law to deny a plat that does not conform.

44 Id. § 212.009(a)-(b).

45 Id.; see Howeth Invs., 259 S.W.3d at 899-901.

46 TEX. LOC. GOV’T CODE § 211.011(a) (allowing “a person aggrieved by

a decision of the [board of adjustment]; a taxpayer; or an officer, department,

board, or bureau of the municipality” to seek judicial review of a zoning

decision by filing a petition “stating that the decision of the board of adjustment

is illegal in whole or in part”).

12

Providing one against the Commissioners in this case would undercut

both our well-established limitations on ultra vires suits and the

Legislature’s plain preference for speedy platting decisions. 47

The Commissioners are duty-bound to interpret the UDC,

consider certain listed items, and determine whether a plat conforms to

the standards in the UDC. Because the Commissioners adhered to this

duty in determining that the Patience Ranch preliminary plat

conformed to the applicable standards, the trial court lacked jurisdiction

to compel a contrary determination by mandamus. 48

* * * * *

We reverse the judgment of the court of appeals and dismiss the

Association’s claims for lack of jurisdiction.

Nathan L. Hecht

Chief Justice

OPINION DELIVERED: June 3, 2022

47Of course, this does not foreclose the Association from successfully

pursuing any cause of action that may arise against the developer in the future,

perhaps based on the same fears of road damage or fire hazards that this suit

revolved around.

48 Because we conclude that governmental immunity bars the

Association’s suit, we do not reach whether the Association had standing to

challenge the plat’s approval.

13