Walker County ESD No. 3 The Board of ESD No. 3 And the Officers & Commissioners of ESD No. 3, in Their Official Capacities v. City of Huntsville, Texas

IN THE

TENTH COURT OF APPEALS

No. 10-22-00009-CV

WALKER COUNTY ESD NO. 3;

THE BOARD OF ESD NO. 3;

AND THE OFFICERS &

COMMISSIONERS OF ESD NO. 3,

IN THEIR OFFICIAL CAPACITIES,

Appellants

v.

CITY OF HUNTSVILLE, TEXAS,

Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 2130313

OPINION

The City of Huntsville, Texas (the City) has sued Walker County Emergency

Services District (ESD) No. 3 (the District), along with its officers and commissioners, for

committing alleged ultra vires acts. The City seeks injunctive and declaratory relief in the

underlying case. The District and its officers and commissioners moved to dismiss the

City’s lawsuit for lack of jurisdiction, which the trial court denied. The District and its

officers and commissioners bring this interlocutory appeal challenging the denial of their

motion to dismiss. We will reverse and render.

Factual and Procedural Background

The City sued the District and its officers and commissioners on November 3, 2021,

the day after voters of the District, along with voters residing in a territory to be annexed,

approved the District’s annexation of the new territory. According to the City, the new

territory includes territory within the City’s extraterritorial jurisdiction (ETJ); however,

the City has never consented to its ETJ being annexed by the District.

In its lawsuit, the City complains that ultra vires acts have been committed by the

District and its officers and commissioners. The City alleges that provisions of Chapter

775 of the Health and Safety Code require the District to obtain the City’s consent before

territory in the City’s ETJ may be annexed by the District and that annexation without

the City’s consent violates controlling statutes. See generally TEX. HEALTH & SAFETY CODE

ANN. §§ 775.001–.306. The District and its officers and commissioners sought dismissal

of the lawsuit in its motion to dismiss for lack of jurisdiction, 1 asserting that (1) the District

and its officers and commissioners are immune from suit as a political subdivision of the

state and (2) the City does not have standing to contest the results of the November 3,

1The motion to dismiss for lack of jurisdiction is in substance a plea to the jurisdiction regardless of the

procedural vehicle used to advance it. See City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297,

299 (Tex. 2017).

Walker County ESD No. 3 v. City of Huntsville Page 2

2021 election approving the annexation. The trial court denied the District’s and its

officers’ and commissioners’ motion to dismiss, and this appeal ensued.

Issues

In three issues the District and its officers and commissioners complain that the

trial court erred in denying their motion to dismiss for lack of jurisdiction. More

specifically, the District and its officers and commissioners contend:

1. The trial court lacks subject matter jurisdiction over the City’s claims against

the District because the District is protected by governmental immunity.

2. The trial court lacks subject matter jurisdiction over the City’s claims against

the individual commissioners because the ultra vires exception to their

immunity from such suits and claims does not apply in this case.

3. The trial court lacks subject matter jurisdiction because the City lacks standing

to bring an election contest under the Texas Election Code.

General Authority

This Court has jurisdiction to review an interlocutory order of a district court that

grants or denies a plea to the jurisdiction by a governmental unit. See TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014(a)(8); see also Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

840–46 (Tex. 2007) (holding that section 51.014(a)(8) vests appellate courts with

jurisdiction to consider interlocutory appeals of jurisdictional pleas brought both by

governmental entities and by employees of such governmental entities who have been

sued in their official capacities). A plea that questions a trial court's jurisdiction raises a

question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction is a dilatory plea, filed to defeat a

Walker County ESD No. 3 v. City of Huntsville Page 3

cause of action without regard to whether the claims asserted have merit. Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has jurisdiction begins

with an analysis of the plaintiff's live pleadings. See Miranda, 133 S.W.3d at 226. The

plaintiff has the burden to plead facts affirmatively showing the trial court has subject

matter jurisdiction. See id. at 226–27. Vague and conclusory statements within a pleading

are insufficient to support jurisdiction; otherwise, the jurisdictional inquiry would

become meaningless. See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex.

2007). Mere unsupported legal conclusions do not suffice. See Creedmoor–Maha Water

Supply Corp. v. Tex. Comm'n on Env’t Quality, 307 S.W.3d 505, 515–16 & n.7 & n.8 (Tex.

App.–Austin 2010, no pet.). In conducting our review, we construe the pleadings

liberally in favor of the plaintiff and look to the plaintiff's intent. Miranda, 133 S.W.2d at

226–27.

Issue Three

We begin by addressing the third issue in which the District and its officers and

commissioners contend that the trial court does not have subject matter jurisdiction to

the extent that the City has brought an election contest because the City lacks standing to

do so. The City responds that it has not brought an election contest challenging the result

of the election but an action seeking a declaration that the election is void because the

District did not have the authority to order the election without obtaining the City’s

consent.

Walker County ESD No. 3 v. City of Huntsville Page 4

AUTHORITY

“An election contest is a special proceeding created by the Legislature to provide

a remedy for elections tainted by fraud, illegality or other irregularity.” Blum v. Lanier,

997 S.W.2d 259, 262 (Tex. 1999). “In an election contest, a district court's authority to act

is limited to the subjects or grounds expressly or impliedly authorized by the election

code.” City of Granite Shoals v. Winder, 280 S.W.3d 550, 557 (Tex. App.—Austin 2009, pet.

denied). A lawsuit seeking a declaration that the State or its subdivisions do not have the

authority to hold an election is, however, not an election contest. See id. at 557–58.

DISCUSSION

The City’s original petition asks among other requests for relief for a declaration

that “the November 2, 2021 election held by [the ESD] was void and of no legal effect.”

The petition premises the City’s claim that the election was void on the ground that the

City did not consent to the annexation of municipal territory. The City’s claim is therefore

not an election contest. See id. We accordingly overrule this issue.

Issue One

In the first issue, the District contends that it is an entity protected by

governmental immunity and, therefore, the trial court has no subject matter jurisdiction

over claims by the City against the District. The City in its brief concedes that “[t]he City

is no longer pursuing its claims against [the District] or the Board” and “is only seeking

injunctive and declaratory relief against the individual commissioners in their official

Walker County ESD No. 3 v. City of Huntsville Page 5

capacity.” We lack authority to render advisory opinions and the mootness doctrine

limits courts to deciding cases in which an actual controversy exists. A controversy must

exist between the parties at every stage of the legal proceedings, including the appeal.

Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

AUTHORITY

The District is a political subdivision of the state. See TEX. HEALTH & SAFETY CODE

ANN. § 775.031. Political subdivisions of the state are entitled to governmental immunity

unless it has been waived. City of El Paso v. Heinrich, 284 S.W.3d 366, 369–70 (Tex. 2009).

For the Legislature to waive the State's immunity, a statute or resolution must contain a

clear and unambiguous expression of the Legislature's waiver of immunity. See Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Absent the state's consent to be

sued, a trial court lacks subject matter jurisdiction. City of Dallas v. Albert, 354 S.W.3d 368,

373 (Tex. 2011) (quoting Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)).

Therefore, if a governmental entity is sued without legislative consent, the trial court

should grant the governmental entity's plea to the jurisdiction. Tex. Parks & Wildlife Dep't

v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).

DISCUSSION

In response to the District’s motion to dismiss for lack of jurisdiction, the City

argued that the District’s governmental immunity was waived by the Legislature in

section 775.031 of the Health and Safety Code, which states that an emergency services

Walker County ESD No. 3 v. City of Huntsville Page 6

district (ESD) may “sue and be sued.” See TEX. HEALTH & SAFETY CODE ANN. §

775.031(a)(4). “We interpret statutory waivers of immunity narrowly, as the Legislature's

intent to waive immunity must be clear and unambiguous.“ Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing TEX. GOV'T CODE ANN. § 311.034).

The language “sue and be sued,” standing alone, is unclear and ambiguous and, as such,

does not amount to a waiver of governmental immunity. Tooke v. City of Mexia, 197

S.W.3d 325, 342 (Tex. 2006). We thus conclude that the Legislature has not waived the

District’s immunity from suit. See id. Furthermore, a suit seeking relief for ultra vires acts

must be brought against the state actors in their official capacity, not against the

governmental entity. See Heinrich, 284 S.W.3d at 373. The District, as a political

subdivision of the state, is therefore entitled to and protected by governmental immunity,

and the trial court lacks jurisdiction over the City’s claims against the District. We sustain

this issue.

Issue Two

In the second issue, the District’s officers and commissioners contend that the

City’s claims that they committed ultra vires acts do not constitute an exception to

governmental immunity. The District’s officers and commissioners argue that the trial

court therefore has no subject matter jurisdiction over the City’s claims against them.

AUTHORITY

Walker County ESD No. 3 v. City of Huntsville Page 7

Even if a political subdivision’s immunity has not been waived, "a claim may

proceed against a government official in his official capacity if the plaintiff successfully

alleges that the official is engaging in ultra vires conduct." Chambers–Liberty Cntys.

Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019). There are two general ways to

prove an ultra vires claim: (1) commission of an action without legal authority or (2)

failure to perform a purely ministerial act. Hall v. McRaven, 508 S.W.3d 232, 241 (Tex.

2017). An official with limited discretion to act under an applicable statute is subject to

an ultra vires claim if it is alleged that the official exceeded the bounds of the granted

authority or the official’s conduct conflicts with the statute itself. Honors Acad., Inc. v. Tex.

Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018). However, an official with absolute discretion

to act is protected from ultra vires claims by governmental immunity. Hall, 508 S.W.3d at

241. “’Ultra vires claims depend on the scope of the state official's authority,’ not the

quality of the official's decisions.” Honors Acad., 555 S.W.3d at 68 (quoting Hall, 508

S.W.3d at 234). “Thus, it is not an ultra vires act for an official to make an erroneous

decision within the authority granted.” Id.

To determine if a plaintiff has pleaded a viable ultra vires action, the court must

construe relevant statutory provisions that define the scope of the governmental body's

legal authority, apply those statutes to the facts as pleaded by the plaintiff, and ascertain

whether those facts constitute acts beyond the agency's legal authority. City of New

Braunfels v. Tovar, 463 S.W.3d 913, 919 (Tex. App.—Austin 2015, no pet.).

Walker County ESD No. 3 v. City of Huntsville Page 8

“Statutory construction is a legal question, which is reviewed de novo to ascertain

and give effect to the Legislature's intent.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.

2009). It is this Court’s duty to administer the law as it is written and not make the law.

In re G.A.C., 499 S.W.3d 138, 142 (Tex. App.—Amarillo 2016, pet. denied). “Our primary

goal in construing a statute is to give effect to the Legislature's intent.” Shinogle v.

Whitlock, 596 S.W.3d 772, 776 (Tex. 2020) (per curiam). And “the truest manifestation of

what lawmakers intended is what they enacted.” Tex. Student Hous. Auth. v. Brazos Cnty.

Appraisal Dist., 460 S.W.3d 137, 141 (Tex. 2015). It is a bedrock principle that “[i]f a case

can be decided according to the statute itself, it must be decided according to the statute

itself.” BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 78 (Tex. 2017). “We

take statutes as we find them and construe them ‘so that no part is surplusage, but so that

each word has meaning.’” Shinogle, 596 S.W.3d at 776 (quoting Perdernal Energy, LLC v.

Bruington Eng’g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017)). “The role of the judicial branch in

our government is important but that role ‘is not to second-guess the policy choices that

inform our statutes or to weigh the effectiveness of their results; rather, our task is to

interpret those statutes in a manner that effectuates the Legislature's intent.’” In re Allen,

366 S.W.3d 696, 708 (Tex. 2012) (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.

2003)).

If the text of a statute is unambiguous, we must take the Legislature at its word,

respect its policy choices, and not revise a statute under the guise of interpreting it.

Walker County ESD No. 3 v. City of Huntsville Page 9

BankDirect, 519 S.W.3d at 86; Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654

(Tex. 2013). “[W]e do not consider legislative history or other extrinsic aides [sic] to

interpret an unambiguous statute because the statute's plain language most reliably

reveals the legislature's intent.” Tex. Health Presbyterian Hosp. of Denton v. D.A., 569

S.W.3d 126, 136 (Tex. 2018). Reliance on extrinsic aids is improper and inappropriate

when statutory language is clear. Id. Thus, “we limit our analysis to the words of the

statute and apply the plain meaning of those words ‘unless a different meaning is

apparent from the context or the plain meaning leads to absurd or nonsensical results.’”

KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 183 (Tex. 2019) (quoting Molinet

v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)).

DISCUSSION

We look to the applicable statute's language to determine whether the City has

properly alleged that the District’s officers and commissioners acted ultra vires. See

Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 164 (Tex. 2016). We

begin by considering the proper construction of the statute at issue. See Sw. Bell Tel., L.P.

v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015). That is because whether the officials, conduct

constitutes ultra vires actions that fall within an exception to governmental immunity

depends on what the statute required of the officials. See id. “To determine whether a

party has asserted a valid ultra vires claim, we must construe the relevant statutory

provisions, apply them to the facts as alleged in the pleadings, and determine whether

Walker County ESD No. 3 v. City of Huntsville Page 10

those facts constitute acts beyond the official's authority or establish a failure to perform

a purely ministerial act.” Tabrizi v. City of Austin, 551 S.W.3d 290, 298 (Tex. App.—El Paso

2018, no pet.).

Consent by the City

In the City’s original petition, the City complains that the "[d]efendants are acting

ultra vires in an illegal attempt to deprive the City of its statutory rights" and that "[the

District] and its commissioners and officers have acted ultra vires by attempting to annex

municipal territory without [the City’s] consent. . . .” The statutory rights the City claims

it is being denied are found in section 775.014 of the Health and Safety Code which

controls creation of an ESD. See TEX. HEALTH & SAFETY CODE ANN. § 775.014. Section

775.014, entitled “Creation of District that Includes Municipal Territory,” provides, in

relevant part:

(a) Before a district may be created that contains territory in a

municipality's limits or extraterritorial jurisdiction, a written request to be

included in the district must be presented to the municipality's governing

body after the petition is filed under Section 775.015. Except as provided

by Subsection (c), that territory may not be included in the district unless

the municipality's governing body gives its written consent on or before the

60th day after the date on which the municipality receives the request.

(b) If the municipality's governing body does not consent to inclusion

within the 60-day period prescribed by Subsection (a), a majority of the

qualified voters and the owners of at least 50 percent of the territory in the

municipality's limits or extraterritorial jurisdiction that would have been

included in the district may petition the governing body to make fire

control and emergency medical and ambulance services available. The

petition must be submitted to the governing body not later than the 90th

Walker County ESD No. 3 v. City of Huntsville Page 11

day after the date on which the municipality receives the request under

Subsection (a).

....

(e) If the municipality's governing body consents to inclusion of territory

within its limits or extraterritorial jurisdiction, or in an industrial district,

the territory may be included in the district in the same manner as other

territory is included under this chapter.

Id. Section 775.014, in essence, requires that before an ESD may be created that contains

territory in the limits or ETJ of a municipality, a written request must be presented to the

municipality’s governing body and consent of the municipality must be obtained before

the municipality’s territory can be included in the ESD. See id.

The District’s officers and commissioners take the position that consent by the City

is only required when creating an ESD, not when expanding an ESD. This position is

based upon section 775.051 of the Health and Safety Code which governs expansion of

an ESD’s territory. See id. § 775.051. Section 775.051, entitled “Expansion of District

Territory,” provides:

(a) Qualified voters who own taxable real property in a defined territory

that is not included in a district may file a petition with the secretary of the

board requesting the inclusion of the territory in the district. The petition

must be signed by at least 50 qualified voters who own taxable real property

in the territory or a majority of those voters, whichever is less.

(b) The board by order shall set a time and place to hold a hearing on the

petition to include the territory in the district. The hearing may be held not

earlier than the 31st day after the date on which the board issues the order.

(c) The secretary of the board shall give notice of the hearing. The notice

must contain the time and place for the hearing and a description of the

territory proposed to be annexed into the district.

Walker County ESD No. 3 v. City of Huntsville Page 12

(d) The secretary shall:

(1) post copies of the notice in three public places in the district and

one public place in the territory proposed to be annexed into the

district for at least 15 days before the date of the hearing; and

(2) not later than the 16th day before the date on which the hearing

will be held, publish the notice once in a newspaper of general

circulation in the county.

(e) If after the hearing the board finds that annexation of the territory into

the district would be feasible and would benefit the district, the board may

approve the annexation by a resolution entered in its minutes. The board

is not required to include all of the territory described in the petition if the

board finds that a change is necessary or desirable.

(f) Annexation of territory is final when approved by a majority of the

voters at an election held in the district and by a majority of the voters at a

separate election held in the territory to be annexed. If the district has

outstanding debts or taxes, the voters in the election to approve the

annexation must also determine if the annexed territory will assume its

proportion of the debts or taxes if added to the district.

(g) The election ballots shall be printed to provide for voting for or against

the following, as applicable:

(1) "Adding (description of territory to be added) to the

____________ Emergency Services District."

(2) "(Description of territory to be added) assuming its proportionate

share of the outstanding debts and taxes of the ____________

Emergency Services District, if it is added to the district."

(h) The election notice, the manner and time of giving the notice, and the

manner of holding the election are governed by the other provisions of this

chapter relating to those matters to the extent that those provisions can be

made applicable.

Id.

Walker County ESD No. 3 v. City of Huntsville Page 13

Neither the City nor the District’s officers and commissioners take the position that

section 775.014 or section 775.051 is ambiguous. And we agree. The words of the statutes

chosen by the Legislature serve as our guide in determining Legislative intent. See KMS

Retail Rowlett, 593 S.W.3d at 183.

Sections 775.014 and 775.051 clearly differ. Section 775.051 has no provision that

requires a request to, or consent by, a municipality, while section 775.014 requires notice

by request and consent before territory in a municipality’s limits or ETJ can be included

in an ESD.

The enacted text of section 775.051 states that “[q]ualified voters who own taxable

real property in a defined territory that is not included in a district may file a petition

with the secretary of the board requesting the inclusion of the territory in the district.”

TEX. HEALTH & SAFETY CODE ANN. § 775.051(a). The Legislature did not include language

that requires notice by a request to a municipality or consent by a municipality as it did

in section 775.014, and the Legislature could have added language to that effect if that

was its will. “When the Legislature has employed a term in one section of a statute and

excluded it in another, we presume that the Legislature had a reason for excluding it.”

Fireman's Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) (per curiam). We

therefore conclude section 775.051 does not require an ESD to make a request to, or to

obtain consent from, a municipality before annexing territory in a municipality’s limits

or ETJ. We will not insert a provision that requires a request to, or consent by, a

Walker County ESD No. 3 v. City of Huntsville Page 14

municipality into section 775.051 when such was not included in the enacted text. “We

decline to engraft what lawmakers declined to enact.” See BankDirect, 519 S.W.3d at 78.

“’A court may not judicially amend a statute by adding words that are not contained in

the language of the statute. Instead, it must apply the statute as written.’” Odyssey 2020

Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 543 (Tex. 2021) (quoting

Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per curiam)). “Enforcing the

law as written is a court's safest refuge . . ., and we should always refrain from rewriting

text that lawmakers chose. . . .” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443

(Tex. 2009). “‘If [the Legislature] enacted into law something different from what it

intended, then it should amend the statute to conform to its intent.’” In re Allen, 366

S.W.3d at 708 (quoting Harbison v. Bell, 556 U.S. 180, 199, 129 S.Ct. 1481, 1494, 173 L.Ed.2d

347 (2009) (Thomas, J., concurring)).

Authority to Annex

The City argues that section 775.014 is the only provision contained in chapter 775

of the Health and Safety Code that grants an ESD authority to annex portions of territory

in a municipality’s limits or ETJ and asserts that section 775.051 does not contain a grant

of authority to an ESD to annex territory in a municipality’s limits or ETJ.

The City’s contention that section 775.014 is the only provision that grants an ESD

authority to annex portions of territory in a municipality’s limits or ETJ does not flow

from a reading of the plain language of the enacted text. Section 775.014 states that

Walker County ESD No. 3 v. City of Huntsville Page 15

“[b]efore a district may be created that contains territory in a municipality’s limits or

[ETJ], a written request to be included in the district must be presented to the

municipality’s governing body after the petition is filed under Section 775.015.” TEX.

HEALTH & SAFETY CODE ANN. § 775.014(a) (emphasis added). The clear intent of the

Legislature is to provide notice to municipalities and to give municipalities a right to

deny consent before territory in a municipality’s limits or ETJ is included in an ESD at the

time the ESD is created. See id.

Section 775.051 allows for annexation of “territory,” and the Legislature did not

include language that limits the type of territory that may be subject to annexation. See

id. § 775.051(a). The Legislature did not include language that the territory could not be

in a municipality’s limits or ETJ. See id. Nothing in the enacted text of section 775.051

prohibits annexation of a municipality’s limits or ETJ by an ESD. See id.

We therefore conclude that section 775.014 is the only provision that requires a

request to a municipality and consent by a municipality but not the only provision that

gives an ESD the authority to include within its territory a municipality’s limits or ETJ.

Absurd Result

The City also argues that it is inconsistent with the clear intent of the Legislature

and would produce absurd results for an ESD to have the authority to annex territory in

a municipality’s limits or ETJ under section 775.051. The City contends that such an

interpretation would render municipal consent meaningless.

Walker County ESD No. 3 v. City of Huntsville Page 16

By the enacted text, section 775.051 applies to an existing ESD that receives a

petition to include additional territory in the ESD, and section 775.014 applies to the initial

creation of an ESD. Section 775.014 has a procedure for filing and approving a petition

to initiate an ESD, and section 775.051 has an entirely different procedure for filing and

approving a petition to expand an ESD. “We presume that the Legislature chooses a

statute's language with care, including each word chosen for a purpose, while

purposefully omitting words not chosen.” TGS–NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 439 (Tex. 2011) (citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)). “It follows,

then, that ‘[w]hen the Legislature employs a term in one section of a statute and excludes

it in another section, the term should not be implied where excluded.’” City of Richardson

v. Oncor Elec. Delivery Co. LLC, 539 S.W.3d 252, 260–61 (Tex. 2018) (quoting Laidlaw Waste

Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)).

The City’s proposed interpretation is inconsistent with both the presumption that

the words of a statute are chosen for a purpose and the presumption that the words not

chosen are omitted for a purpose. The City’s construction assumes that the municipal-

consent requirement was excluded from section 775.051 for no purpose. The City argues

that applying section 775.051 in a manner that does not require municipal consent renders

municipal consent at the creation stage futile. While the City’s argument may have merit,

it is not our function to revise the Legislature's policy choices. See Hidi, 13 S.W.3d at 769.

And as to whether such a reading renders municipal consent meaningless in practice,

Walker County ESD No. 3 v. City of Huntsville Page 17

“we read unambiguous statutes as they are written, not as they make the most policy

sense.” Combs v. Health Care Serv. Corp., 401 S.W.3d 623, 629 (Tex. 2013).

We cannot say that the differing procedures provided for by sections 775.014 and

775.051 lead to an absurd result.

Factual Allegations of Ultra Vires Acts

The City acknowledges in its original petition that the District was created in 2019

and that “[i]t now appears that the individuals behind the creation of [the District] always

intended to include, within the district’s ultimate boundaries, territory that is within [the

City’s] ETJ, but sought to evade the statutory requirement of obtaining the City’s

consent.” The “individuals” alleged to have been part of the plan to avoid the request

and consent requirement are not identified and, more importantly, are not alleged to have

been the District’s officers or commissioners. Because it is undisputed that the District

was created in 2019, the action by the District now complained of by the City can be

nothing other than an expansion of the District’s territory under section 755.051.

A petition to initiate an expansion of an ESD is filed with the secretary of the ESD’s

board as directed by section 775.051(a). See TEX. HEALTH & SAFETY CODE ANN. §

775.051(a). Section 775.014 is not applicable because the requirement that the District

send a written request to the City for consent is only triggered when a petition to create

an ESD is received by the county judge and filed with the county clerk under section

775.015. See id. §§ 775.014–.015, 775.051. Therefore, petitions to initiate an expansion of

Walker County ESD No. 3 v. City of Huntsville Page 18

an ESD into the limits or ETJ of a municipality do not require a request to, or consent by,

the municipality.

Furthermore, there are no facts alleged in the City’s lawsuit that a specific officer

or commissioner drafted the language in the petition for expansion, only an allegation

“that, on information and belief, [the petition] was prepared by or in consultation with

[the District] attorneys and board members. . . .” Vague and conclusory statements

within a pleading are insufficient to support jurisdiction. See Flynn, 228 S.W.3d at 660.

Even taking the allegation as true, it is not a violation of any section of chapter 775 of the

Health and Safety Code for an officer or commissioner to participate in drafting or

preparing a petition. See TEX. HEALTH & SAFETY CODE ANN. §§ 775.001–.306. It is

important to recognize that a petition to expand an ESD comes directly from the voters

and is ultimately presented to an ESD’s board secretary by the voters. See id. § 775.051.

Our review of the City’s live petition leads us to conclude that all of the

complained-of acts either were within the District’s statutorily authorized discretion,

were authorized by statute, or were not in violation of a controlling statute; therefore, the

City’s allegations fail to invoke the district court's inherent jurisdiction to remedy ultra

vires acts. The District, as a subdivision of the state, is protected by governmental

immunity, leaving the trial court without subject-matter jurisdiction over the City’s

lawsuit. We sustain this issue.

Conclusion

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We reverse the trial court’s order denying the District’s and its officers’ and

commissioners’ motion to dismiss for lack of jurisdiction and render judgment that the

underlying lawsuit is dismissed.

MATT JOHNSON

Justice

Before Chief Justice Gray,*

Justice Johnson 2, and

Justice Smith

*Chief Justice Gray dissents

Reversed and Rendered

Opinion delivered and filed December 7, 2022

[CV06]

2

This opinion was circulated by the authoring justice for review by the panel members on August 30, 2022.

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