Opinion
01-21-00384-CV
08-31-2023
CAROLYN STONE, Appellant v. HARRIS COUNTY, TEXAS AND JOHN R. BLOUNT, IN HIS OFFICIAL CAPACITY FOR HARRIS COUNTY, TEXAS; CITY OF HOUSTON, TEXAS AND MARGARET WALLACE BROWN, IN HER OFFICIAL CAPACITY FOR THE CITY OF HOUSTON, TEXAS, Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2020-09693
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY, JUSTICE
Appellant Carolyn Stone sued Appellees, the City of Houston, Margaret Wallace Brown, in her official capacities as the Director of the City of Houston's Planning Department and Secretary of the Commission, Harris County, and John R. Blount, in his official capacity as the Harris County Engineering Department's County Engineer, for mandamus and injunctive relief after the City of Houston and Harris County approved an application for a replat of property located in the same subdivision where Appellant lives. Appellees filed a combined motion for summary judgment, which incorporated by reference previously filed pleas to the jurisdiction. Appellant is appealing the trial court's granting of summary judgment in favor of Appellees.
Because Appellant's claims against Appellees are barred by governmental immunity, we affirm.
Background
Appellant Carolyn Stone ("Stone") bought a home in the Lakeview Homes Addition, a deed-restricted community ("Subdivision"), in 1988. In 2008, Guadalupe and Ildefonso Zermeno ("Zermenos") purchased a lot at 322 Lakeside Dr., Channelview, Texas ("Property"), located two lots away from Stone's property. The Subdivision is located in the City of Houston's ("City") extraterritorial jurisdiction.
In 2018, the Zermenos applied to the City of Houston Planning Commission ("Commission") seeking a partial replat for the Property, which the Commission approved on August 2, 2018 ("Replat"). On April 30, 2019, the Harris County Commissioners Court ("Commissioners Court") approved the Replat, which was subsequently recorded in the County's real property records.
A. Stone's Petition
On February 11, 2020, Stone sued the Zermenos for alleged violations of the deed restrictions applicable to the Subdivision (the "Restrictions"). The Restrictions include covenants that lots, including the Property, cannot be used for any purpose other than single-family residential use. In her petition, Stone alleged that the Zermenos demolished the single-family residence on the Property and "engaged in multiple attempts to start commercial-related construction" on the Property between 2013 and July 2017. In addition to submitting an "application for a mobile home park which was denied," the Zermenos also erected an unpermitted steel beam structure, installed a ten-foot corrugated metal fence, and maintained the Property as an unpermitted junkyard, which created an unauthorized nuisance in the neighborhood. Among other relief, Stone requested a permanent injunction prohibiting the Zermenos from violating the Restrictions and damages for the devaluation of her property.
Along with the claims against the Zermenos, Stone also asserted claims for mandamus and injunctive relief against the City and Margaret Wallace Brown, in her official capacities as the Director of the City's Planning Department and Secretary of the Commission ("Brown," collectively with the City, "City Appellees"), and Harris County ("County") and John R. Blount, P.E., in his official capacity as the Harris County Engineering Department's County Engineer ("Blount," collectively with the County, "County Appellees").
Stone also asserted a claim against the City Appellees and County Appellees for violation of her rights under Sections 13 and 19 of the Texas Constitution. See Tex. Const., art. I, §§ 13, 19. Stone does not appear to be challenging the trial court's grant of summary judgment in favor of the City Appellees and County Appellees with respect to these claims.
In her petition, Stone alleged that the "Houston Planning Commission is responsible for approving any Class III replat on behalf of the City of Houston" and "[o]n August 2, 2018, the Commission approved the final Class 3 Final Plat Survey 1, Inc., which was styled as a Class 3 Final Plat." On December 27, 2018, Brown, acting in her official capacity as Secretary of the Commission, signed the Replat:
This is to certify that the Planning Commission of the City of Houston, Texas has approved this plat (or instrument when appropriate) and Subdivision of Lakeview Homes Addition Partial Replat No. 3 in conformance with the Laws of the State of Texas and the Ordinances of the City of Houston, as shown hereon, and authorized the recording of the plat (or instrument when appropriate) this day of December 27, 2018.
Stone alleged that Brown, as the Commission's Secretary, "had a ministerial duty to comply with Sections 212.014, 212.0146, and 212.015 of the Texas Local Government Code before approving or signing the replat." According to Stone, "Brown also had the duty to comply with Chapter 42 of the City of Houston's Code of Ordinances in approving the replat, including compliance with Section 42-193."
With respect to the County, Stone asserted that the "Commissioners Court for Harris County is responsible for approving replats on behalf of the County" and on April 30, 2019, the commissioners court "considered and approved the replat for the Property with knowledge of the Zermeno Defendants' intended use in violation of the Restrictions after receipt of the Approved Replat." On May 2, 2019, "John R. Blount, P.E., the County Engineer for Harris County, or his representative, Loyd Smith, P.E., the Assistant County Engineer, further certified that the Approved Replat complied with all the existing rules and regulations of Harris County Engineer's Office." The certification states:
I, John R. Blount, County Engineer of Harris County hereby certifies that the plat of this submission complies with all the existing rules and regulations of this office as adopted by the Harris County Commissioners' Court and that it complies or will comply with all applicable provisions of the Harris County Road Law as amended and all other Court adopted drainage requirements.
Stone alleged that, "[a]s the County Engineer, Mr. Blount or his representative had a ministerial duty to comply with Section 232.009 of the Texas Local Government Code before approving or signing the replat."
In her petition, Stone requested the following relief:
(c) That on a full and final hearing on this cause, Defendants Guadalupe and Ildefonso Zermeno, City of Houston, Texas, and Harris County, Texas be permanently enjoined from recognizing the Approved Replat adopted in violation of Tex. Local Gov't Code §§ 212.014, 212.0146, 212.015, § 232.009 or other applicable state statutes, Chapter 42 of the City of Houston's Code of Ordinances, and the Texas Const., art. I, §§ 13, 16 &
19, to the extent any of these Defendants contend that the Approved Replat altered or removed the force of recorded covenants or restrictions, e.g., the Restrictions for Lakeview Homes Addition, on the Property in the Subdivision;
(d) That on a full and final hearing on this cause, Defendants Guadalupe and Ildefonso Zermeno, City of Houston, Texas, and Harris County, Texas be permanently enjoined from applying for, issuing or renewing any permits for the Property that would allow uses, construction, or other activities that violate the Restrictions and any permits for commercial or other non-residential use, construction, or other activities that violate the Restrictions (whether or not issued in reliance on or because of the illegal approval of the Approved Replat) should be revoked or canceled;
(e) That a writ of mandamus issue against Margaret Wallace Brown of the City of Houston, Texas instructing her to invalidate or void the Houston Planning Commission's improper approval of the Approved Replat and revoke or cancel any subsequent permits issued by the City for commercial or other non-residential use, construction, or other activities that violate the Restrictions (whether or not approved in reliance on or because of the illegal approval of the Approved Replat);
(f) That a writ of mandamus issue against John Blount, P.E. of Harris County, Texas instructing him to invalidate or void the County Commissioners Court's improper approval of the Approved Replat and revoke or cancel any subsequent permits issued by the County for commercial or other non-residential use, construction, or other activities that violate the Restrictions (whether or not in reliance on or because of the illegal approval of the Approved Replat)
B. Stone's Claims Against the Zermenos
On June 22, 2020, the trial court issued a default judgment against the Zermenos prohibiting the Zermenos from "engaging in, or attempting to engage in, the following described acts with respect to" the Property in violation of the Deed Restrictions, including "[u]sing, maintaining or keeping the [Property] in a manner inconsistent with the Deed Restrictions, which restrict use of the [Property] to a single-family residential use . . . No commercial activity is allowed to be conducted on the [Property]." The default judgment also states:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the Zermeno Defendants are permanently enjoined from applying for, seeking or renewing any permits from Harris County, Texas for the [Property] that would allow uses, construction, or other activities that violate the Restrictions, which restrict use of the [Property] to single-family residential use. Specifically, the Zermeno Defendants are enjoined from seeking any permits related to the [Property] for commercial or other non-residential use, construction, or other activities that violate the Restrictions, including, but not limited to, a mobile home park subdivision, junkyard, automotive wrecking or salvage yard.
The default judgment also awards Stone "actual damages in the amount of $15,350 for the devaluation of her property at 318 Lakeside Dr. Channelview, Texas 77530 as a result of Zermeno Defendants' violations of the restrictive covenant from August 20, 2019 through June 22, 2020."
In August 2020, the trial court severed Stone's claims against the Zermenos into a new cause number, Cause No. 2020-09693-A. On October 7, 2020, the Zermenos filed a notice of restricted appeal challenging the June 22, 2020 default judgment. On October 28, 2021, this Court affirmed the default judgment because the Zermenos had not established error on the face of the record. See Zermeno v. Stone, No. 01-20-00687-CV, 2020 WL 12432734, at *6-7 (Tex. App.-Houston [1st Dist.] Nov. 2, 2020, pet. denied) (mem. op.). After the Texas Supreme Court denied the Zermenos' petition for review, this Court issued its mandate resolving the Zermenos' appeal.
On June 3, 2022, the Zermenos filed an "Original Petition for Bill of Review and Plea to the Jurisdiction" in which they argued they were entitled to derivative sovereign immunity because "they had only been relying on the City of Houston's and Harris County's grant of the petition to replat the real property and the actual granting of the replat of the Plaintiffs' real property" and thus the Zermenos were "were merely complying with the governmental entities grant of authority." Stone filed a motion to dismiss the Zermenos' Bill of Review based on Texas Rule of Civil Procedure 91a. The trial court granted the motion and the Zermenos appealed. Before an opinion issued in that appeal, the Zermenos filed a motion to dismiss their appeal in which they asserted they had entered into a "Confidential Settlement Agreement" with Stone "which non-suited all claims asserted by all the parties." On June 20, 2023, this Court issued a per curiam opinion dismissing the Zermenos' appeal and remanding the case to the trial court for rendition of judgment in accordance with the parties' agreement. Zermeno v. Stone, No. 01-22-00723-CV, 2023 WL 4065535, at *1 (Tex. App.-Houston [1st Dist.] June 20, 2023, no pet.) (mem. op.).
C. Stone's Claims Against the City Appellees and the County Appellees
On February 15, 2021, Stone filed a motion for partial summary judgment against the City Appellees and a motion for partial summary judgment against the County Appellees. In her motion for partial summary judgment against the City Appellees, Stone requested "a writ of mandamus to order the Director [Brown] to invalidate or void the Houston Planning Commission's improper approval of a replat, Lakeview Homes Addition Partial Replat No. 3, at 322 Lakeside Drive in Channelview Texas," and a permanent injunction prohibiting "the City, its agents, employees and representatives" from "issuing or renewing any permits for the Property based on the Replat that would allow uses, construction, or other activities that violate the Restrictions, such as commercial or other non-residential use."
In her motion for partial summary judgment against the County Appellees, Stone requested "a writ of mandamus to order the County Engineer [Blount] to invalidate or void the County's improper approval of a replat, Lakeview Homes Addition Partial Replat No. 3, at 322 Lakeside Drive in Channelview Texas," and a permanent injunction prohibiting the County from "issuing or renewing any permits for the Property based on the Replat that would allow uses construction, or other activities that violate the Restrictions, such as commercial or other non-residential use."
On March 5, 2021, the County Appellees filed a combined "Response to Plaintiff's Motion for Partial Summary Judgment On Her Application for Mandamus and Injunctive Relief Against Harris County and Cross-Motion to Dismiss for Lack of Jurisdiction and Justiciable Causes of Action." On March 8, 2021, the City Appellees filed a combined "Response to Plaintiff's Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment." In their plea to the jurisdiction, the County Appellees argued, among other things, that Stone's suit should be dismissed for lack of jurisdiction based on governmental immunity grounds because (1) the Legislature has not waived the City's and County's immunity over Stone's claims and (2) the ultra vires exception to governmental immunity did not apply because, among other things, plat approval is a discretionary function, not a ministerial act. In their cross-motion, the City Appellees joined and adopted the evidence and arguments set forth in the County Appellees' cross-motion and argued that Stone did not have standing to bring her claims because her "alleged injury-land use contrary to deed restrictions-is not fairly traceable to the conduct of the City or County." See Heckman v. Williamson Cnty., 369 S.W.3d 137, 150, 154 (Tex. 2012) (stating to sufficiently plead standing, which is component of subject-matter jurisdiction, plaintiff must allege she suffered personal injury that is injury is fairly traceable to the defendant's unlawful conduct, and injury is likely to be redressed by requested relief).
Stone filed replies to the City Appellees' and County Appellees' responses and cross-motions.
On March 22, 2021, the trial court denied Stone's motions for partial summary judgment against the City Appellees and the County Appellees.
On April 13, 2021, the City Appellees and the County Appellees filed a combined motion for summary judgment in which they asserted that Stone's claims failed as a matter of law because "[t]he approval of the replat did not and could not remove any restrictive covenants that exist for Lakeview [Homes]," and thus, "there is no justiciable controversy between the parties and [Stone's] claims must be dismissed as a matter of law." The combined motion referred to and expressly incorporated the arguments and evidence that the City Appellees and County Appellees had raised in their respective responses and cross-motions to Stone's partial motions for summary judgment. On May 3, 2021, Stone filed her "Special Exceptions and Response" to the combined motion in which she addressed the merits of the City Appellees' and County Appellees' arguments for summary judgment, including the jurisdictional arguments incorporated by reference from the City Appellees' and County Appellees' responses to her motions for partial summary judgment and cross-motions.
The City Appellees contend that they and the County Appellees filed the combined motion in the interest of clarity because their previously filed responses and cross-motions were never docketed for hearing and the trial court had not ruled on the cross-motions.
On June 17, 2021, the trial court granted the City Appellees' and County Appellees' combined motion. This appeal followed.
Platting Process for Subdivisions
"'[P]lat approval is a discretionary function that only a governmental unit can perform.'" Schroeder v. Escalera Ranch Owners' Ass'n, Inc., 646 S.W.3d 329, 332 (Tex. 2022) (quoting City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985)). The governmental unit exercises its discretion when it determines whether a plat conforms to all applicable statutes and regulations. Schroeder, 646 S.W.3d at 333. If, after exercising its discretion, a governmental unit finds that a plat conforms to such laws, the governmental unit has a ministerial duty to approve the plat. See id. at 332; see also Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 895 (Tex. App.-Houston [1st Dist.] 2008, pet. denied) (stating governmental unit has ministerial duty to approve plat when plat applicant "has done all that the statutes and law demand" (quoting City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 927 (Tex. App.-Corpus Christi 1968, writ ref'd n.r.e.)). While governmental units may deny a plat that does not conform to all applicable statutes and regulations, the governmental unit does not have a ministerial duty to do so. Schroeder, 646 S.W.3d at 336 ("The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one."). Municipalities and counties derive their platting authority from Chapters 212 and 232 of the Texas Local Government Code.
A. The City's Authority to Regulate Subdivision Replats
Chapter 42 of the City's Code of Ordinances ("Code of Ordinances") "establishes the general rules and regulations governing plats, subdivisions and development of land within the city . . . to promote the health, safety, morals and general welfare of the city and the safe, orderly and healthful development of the city." Hous., Tex., Code of Ordinances ch. 42, art. I, § 42-2; see Tex. Loc. Gov't Code § 212.002 (authorizing municipalities to "adopt rules governing plats and subdivisions of land within the municipality's jurisdiction").
The Commission is the municipal authority responsible for reviewing and approving subdivision plats in the City, as well as plats for subdivisions located in the City's extraterritorial jurisdiction. See Tex. Loc. Gov't Code §§ 212.006(a), 232.006; Hous., Tex., Code of Ordinances ch. 33, art. II, § 33-22(a); see also Tex. Loc. Gov't Code § 242.002(c) (giving municipality "exclusive authority to regulate subdivisions" located in municipality's extraterritorial jurisdiction). Brown, who is the Director of the City's Planning and Development Department, is also the Commission's Secretary and an ex officio member of the Commission. See Martinez v. Northern, No. 01-22-00435-CV, 2023 WL 162743, at *10 (Tex. App.- Houston [1st Dist.] Jan. 12, 2023, pet. denied) (mem. op.); Hous., Tex., Code of Ordinances ch. 33, art. II, § 33-14 (stating director or director's designee "shall serve as ex officio member and secretary to the commission").
The Replat is defined as a "class III plat" under the Chapter 42 of the Code of Ordinances. See Hous., Tex., Code of Ordinances ch. 42, art. II, § 42-23(b) (defining "class III plat"). Section 42-71 of the Code of Ordinances, entitled "Commission consideration and action," states in part:
(a) The commission shall consider and act on each class III plat submitted to it on a preliminary basis and upon a final basis. The commission shall consider and act on each class II plat submitted to it on a final basis. The commission shall consider and act on each subdivision plat or development plat that requests a variance or special exception. The commission also shall consider and act on each class I plat . . . that is referred to the commission by the director.
(b) The commission shall approve each subdivision plat that complies with the provisions of this chapter and other applicable laws and requirements.Id. § 42-71(a)-(b). Section 42-74 of the Code of Ordinances, entitled "Commission consideration and action-Class III plat," states:
(a) The commission shall consider and act on each preliminary class III plat and each final class III plat as provided in this section.
(b) Upon consideration of a preliminary class III plat, the commission shall:
(1) Grant approval of the preliminary class III plat, with or without conditions, upon finding that it meets all the applicable requirements of [Chapter 42 of the Code] and other applicable law;
(2) Approve one or more requested variances . . ., in whole or in part, with or without conditions, pursuant to section 42-81 . . . of this Code, as applicable, and approve the preliminary class III plat with the variance . . . so granted[.]Id. § 42-74 (a), (b)(1)-(2); see Martinez, 2023 WL 162743, at *12.
In addition to Chapter 42 of the Code of Ordinances, Chapter 212 of the Local Government Code also sets forth requirements for subdivision plats. Section 212.014 of the Local Government Code states:
A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat:
(1) is signed and acknowledged by only the owners of the property being replatted;
(2) is approved by the municipal authority responsible for approving plats; and
(3) does not attempt to amend or remove any covenants or restrictions.
Tex. Loc. Gov't Code § 212.014. Section 212.0146(b), which applies to replats of subdivisions located in the City's extraterritorial jurisdiction, states:
(b) A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if:
(1) the replat is signed and acknowledged by each owner and only the owners of the property being replatted;
(2) the municipal authority responsible for approving plats holds a public hearing on the matter at which parties in interest and citizens have an opportunity to be heard;
(3) the replat does not amend, remove, or violate, or have the effect of amending, removing, or violating, any covenants or restrictions that are contained or referenced in a dedicatory instrument recorded in the real property records separately from the preceding plat or replat;
(4) the replat does not attempt to amend, remove, or violate, or have the effect of amending, removing, or violating, any existing public utility easements without the consent of the affected utility companies; and
(5) the municipal authority responsible for approving plats approves the replat after determining that the replat complies with this subchapter and rules adopted under Section 212.002 and this section in effect at the time the application for the replat is filed.Id. § 212.0146(b); see id. § 212.0146(a) (stating this section applies to replats of subdivisions located in extraterritorial jurisdiction of municipality with population of 1.3 million or more).
Section 212.009(c) of the Local Government Code, entitled "Application Procedure: Initial Approval," states:
(a) The municipal authority responsible for approving plats shall approve, approve with conditions, or disapprove a plan or plat within 30 days after the date the plan or plat is filed. A plan or plat is approved by the municipal authority unless it is disapproved within that period and in accordance with Section 212.0091.
. . .
(c) If a plan or plat is approved, the municipal authority giving the approval shall endorse the plan or plat with a certificate indicating the approval. The certificate must be signed by:
(1) the authority's presiding officer and attested by the authority's secretary; or
(2) a majority of the members of the authority.Id. § 212.009(a), (c).
B. The County's Authority to Regulate Subdivision Replats
Chapter 232 of the Texas Local Government Code, entitled "County Regulation of Subdivisions," governs the County's ability to regulate subdivisions, including subdivisions located in the City's extraterritorial jurisdiction. The County's authority to regulate plats or subdivisions in the City's extraterritorial jurisdiction, however, "is subject to any applicable limitation prescribed by . . . Section 242.002." Id. § 232.0013. Section 242.002 gives the City the "exclusive authority to regulate subdivisions [located in the City's extraterritorial jurisdiction] under Subchapter A of Chapter 212 and other statutes applicable to municipalities." Id. § 242.002(c) (emphasis added). The City must also approve plats for subdivisions located in the City's extraterritorial jurisdiction before the plat can be filed with the Harris County Clerk's Office. Id. § 242.002(b).
Citing to Section 232.002 of the Local Government Code, the County contends that its role in the replatting process with respect to subdivisions located in the City's extraterritorial jurisdiction is limited to "approving, by order of the Commissioners Court, the final plat as it was approved by the City." Section 232.002(a) of the of the Local Government Code states:
The commissioners court of the county in which the land is located must approve, by an order entered in the minutes of the court, a plat required by Section 232.001. The commissioners court may refuse to approve a plat if it does not meet the requirements prescribed by or under this chapter or if any bond required under this chapter is not filed with the county.Id. § 232.002(a); see also id. § 232.001(a)(1) ("The owner of a tract of land located outside the limits of a municipality must have a plat of the subdivision prepared if the owner divides the tract into two or more parts to lay out . . . a subdivision of the tract . . . .").
Stone alleges the Replat violates section 232.009 of the Local Government Code. Section 232.009 of the Local Government Code states:
(b) A person who owns real property in a tract that has been subdivided and that is subject to the subdivision controls of the county in which the property is located may apply in writing to the commissioners court of the county for permission to revise the subdivision plat that applies to the property and that is filed for record with the county clerk.
. . .
(d) During a regular term of the commissioners court, the court shall adopt an order to permit the revision of the subdivision plat if it is shown to the court that:
(1) the revision will not interfere with the established rights of any owner of a part of the subdivided land; or
(2) each owner whose rights may be interfered with has agreed to the revision.Id. § 232.009(a), (d). Unlike the City's Code of Ordinances, the parties have not identified any provision in the Harris County laws or regulations governing the County's ability to approve or deny plat applications.
Governmental Immunity
The City Appellees and County Appellees argue Stone's suit should be dismissed for lack of jurisdiction based on governmental immunity grounds because (1) the Legislature has not waived immunity over Stone's claims and (2) the ultra vires exception to governmental immunity is inapplicable. Stone does not argue that the Legislature waived governmental immunity with respect to her requests for writs of mandamus and permanent injunctions against the City Appellees and County Appellees. Rather, she argues that the trial court has jurisdiction over her claims because "the City's approval and County's further affirmation of the Replat qualify as ultra vires acts that make them subject to Stone's suit."
A. Standard of Review and Applicable Law
Governmental immunity protects political subdivisions of the state from lawsuits and liability for monetary damages unless their immunity is waived by the Legislature. See Schroeder, 646 S.W.3d at 332; see also Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (stating political subdivision "retain[s] immunity unless the Legislature clearly and unambiguously waives it"). Government officials acting in their official capacity enjoy the same immunity as the governmental unit unless the official has engaged in ultra vires conduct. See Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011) ("With that [ultra vires] exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer."); City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009) ("With the limited ultra vires exception . . ., governmental immunity protects government officers sued in their official capacities to the extent that it protects their employers."). "'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.'" Schroeder, 646 S.W.3d at 332 (quoting Heinrich, 284 S.W.3d at 372).
Governmental immunity encompasses both immunity from suit and immunity from liability. See Dohlen, 643 S.W.3d at 392. Immunity from liability "bars enforcement of a judgment against a governmental entity," whereas immunity from suit "bars suit against the entity altogether." Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Thus, while immunity from suit implicates a court's subject matter jurisdiction, immunity from liability does not. Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009) ("Immunity from suit is jurisdictional and bars suit; immunity from liability is not jurisdictional and protects from judgment.").
Because immunity from suit implicates the court's subject-matter jurisdiction, a governmental entity can assert immunity from suit in a plea to jurisdiction. See Dohlen, 643 S.W.3d at 392 (stating immunity from suit is "properly raised in a plea to the jurisdiction" because it "implicates a court's subject-matter jurisdiction"); Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019) ("[I]mmunity from liability only protects the state from money judgments, is not jurisdictional, and must be raised as an affirmative defense rather than by jurisdictional plea.").
We review a court's ruling on a plea to the jurisdiction de novo. See Dohlen, 643 S.W.3d at 392. When reviewing a trial court's ruling on a challenge to its jurisdiction, we consider the plaintiff's pleadings and factual assertions, as well as any evidence relevant to the jurisdictional issue. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We construe pleadings liberally in favor of the plaintiff, look to the pleader's intent, and determine if the pleader has alleged facts affirmatively demonstrating the court's jurisdiction. Id.
A plaintiff asserting ultra vires claims must "allege facts affirmatively demonstrating actionable ultra vires conduct by state officials in order to avoid dismissal on jurisdictional grounds due to sovereign [or governmental] immunity." Matzen v. McLane, 659 S.W.3d 381, 388 (Tex. 2021). Allegations found in pleadings may affirmatively demonstrate or negate the court's jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). A plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend if the pleadings affirmatively negate the existence of jurisdiction or if the jurisdictional defect cannot be cured by amendment. See Dohlen, 643 S.W.3d at 397; see also Tex. A & M Univ. System v. Koseoglu, 233 S.W.3d 835, 837 (Tex. 2007) ("[W]hen a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend.").
B. Relevant Case Law
The Texas Supreme Court's opinion in Schroeder v. Escalera Ranch Owners' Association, Inc., 646 S.W.3d 329 (Tex. 2022) and this Court's opinion in Martinez v. Northern, No. 01-22-00435-CV, 2023 WL 162743 (Tex. App.-Houston [1st Dist.] Jan. 12, 2023, pet. denied) (mem. op.) are instructive with regard to ultra vires claims against city officials based on the approval or denial of subdivision plats.
1. Schroeder v. Escalera Ranch Owners' Association, Inc.
In Schroeder, a homeowners association sued the members of the City of Georgetown's planning and zoning commission in their official capacities after the commissioners approved a subdivision plat the homeowners association claimed did not conform to the city's ordinances. 646 S.W.3d at 331. The plaintiff argued that because the plat was nonconforming, the commissioners' approval of the plat constituted a clear abuse of discretion. Id. The plaintiff requested mandamus relief directing the commissioners to rescind their approval of the plat. Id.
To fall within the ultra vires exception to governmental immunity, the plaintiff "must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." Heinrich, 284 S.W.3d at 372; see also Schroeder, 646 S.W.3d at 332. The Schroeder court explained that while plat approval is a discretionary function, "once the relevant governmental unit determines that a plat conforms to applicable regulations, it has a ministerial duty to approve that plat." Schroeder, 646 S.W.3d at 332. The court held that although a governmental unit has a ministerial duty to approve a conforming plat, "[t]he Local Government Code does not create a ministerial duty to deny a nonconforming plat." Id. at 333; see also id. at 336 ("The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one."). The commission members thus did not engage in ultra vires conduct by failing "perform a purely ministerial act" when they failed to deny the allegedly nonconforming plat. Id. at 333 (stating official commits ultra vires act when he "fail[s] to perform a purely ministerial act" (quoting Heinrich, 284 S.W.3d at 372)).
The ultra vires exception also applies when an officer acts without legal authority. Id.; see also Heinrich, 284 S.W.3d at 372 (stating official commits ultra vires act when he "act[s] without legal authority"). In Schroeder, the commission's authority was derived from the City of Georgetown's Unified Development Code ("UDC"). Although the UDC "limits the discretion of what the Commission may consider" when it evaluates whether a plat conforms to applicable regulations, "it does not otherwise restrict the Commission's exercise of its discretion to determine [plan] conformity." Schroeder, 646 S.W.3d at 335. The court held:
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", "determin[e] that the plat conforms" to the law, and decide whether "conformance to [the applicable standards had been] demonstrated." 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.Id. (quoting Georgetown, Tex., Unified Dev. Code §§ 2.05.010(A)(1), 3.08.070(C)(2), 12.01.040(B)).
In reaching its decision, the Schroeder court noted that the plaintiff "[did] not allege that the commissioners made the conformity determination based on improper considerations." Id. Instead, the plaintiff "assert[ed] that the Commissioners simply got the determination wrong." Id. But "[n]either the UDC nor State law allow third parties to second-guess the Commission's decision in this way." Id. The court explained that "the Legislature has not created a mechanism for third parties to seek judicial review of a municipality's platting approval," and "[p]roviding 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." Id. at 336.
2. Martinez v. Northern
This Court's opinion in Martinez, which relies on Schroeder, is particularly instructive with respect to the obligations of City of Houston officials to approve or deny subdivision plats. In Martinez, the plaintiffs sued the City, three of the City's governmental units, and three City officials in their official capacity, seeking a declaratory judgment under the Uniform Declaratory Judgments Act ("UDJA") and injunctive relief to stop the approval of a subdivision plat and variances requested by the Houston Housing Authority ("HHA"). See Martinez, 2023 WL 162743, at *4. The defendants included, (1) the City's Planning and Development Department, (2) Brown, in her official capacity as Director of the Planning and Development Department, (3) the Commission, (4) Martha Stein, in her official capacity as Chair of the Commission, and (5) the City. Id. The City, the Planning and Development Department, the Commission, Stein, and Brown filed pleas to the jurisdiction arguing that the plaintiffs' suit should be dismissed for lack of subject-matter jurisdiction because, among other things, the suit was barred by governmental immunity. Id. at *6. In their response to the plea, the plaintiffs argued that the governmental entities' immunity was waived by the UDJA. Id. This Court held the UDJA did not waive the governmental entities' right to immunity from the plaintiffs' suit, and thus the trial court correctly granted the governmental entities' plea. Id. at *9.
The plaintiff also named as defendants the HHA and David A. Northern, Sr., in his official capacity as President and CEO of HHA.
HHA and Northern also filed a plea to the jurisdiction. The trial court's grant of the plea was upheld on appeal. See Martinez v. Northern, No. 01-22-00435-CV, 2023 WL 162743, at *14 (Tex. App.-Houston [1st Dist.] Jan. 12, 2023, pet. denied) (mem. op.).
With respect to Brown and Stein, the plaintiffs argued in their response to the plea that Brown and Stein were not immune from the plaintiffs' ultra vires claims because Brown and Stein had exceeded their legal authority by wrongfully approving the variances included in the plat. Id. at *10. In their petition, the plaintiffs alleged that "Stein's final approval of the plat application would constitute an ultra vires act" and the plaintiffs requested a declaration that Stein and Brown were without legal authority "to approve the variances set forth in the Plat application." Id. Stein was a voting member of the Commission and Brown was the Commission's Secretary and an ex officio member of the Commission. See id..
Citing to Sections 42-71 and 42-74 of the Code of Ordinances which govern the Commission's consideration of class III plats, and Section 42-81 which applies to the Commission's consideration of variances, this Court observed that "[o]ther than requiring consideration of the plat, which was considered here, the Code [of Ordinances] does not otherwise constrain the Planning Commission's discretion in determining a class III plat's conformity with Chapter 42 and 'other applicable law.'" Id. at *12; see Hous., Tex., Code of Ordinances ch. 42, art. II, § 42-74(b)(1) ("Upon consideration of a preliminary class III plat, the commission shall . . . [g]rant approval of the preliminary class III plat, with or without conditions, upon finding that it meets all the applicable requirements of [Chapter 42] and other applicable law . . . ."); id. § 42-81(a) (authorizing Commission "to consider and grant variances from the requirements of [Chapter 42] by majority vote of those members present and voting . . . for any subdivision plat . . . when the commission finds that [five listed] conditions exist"). Relying on the Texas Supreme Court's opinion in Schroeder, this Court held that even if the members of the Commission had erroneously determined that the plat and requested variances satisfied the applicable law, "such erroneous decision would nonetheless be within the scope of the commission's authority." Martinez, 2023 WL 162743, at *13. This Court stated that "when government officials like members of the Planning Commission are given unconstrained discretion to interpret laws collateral to their enabling authority, a misinterpretation of the law is not overstepping their authority." Id. "The misinterpretation may be erroneous but is nonetheless compliant with the granted authority." Id.
This Court held that the ultra vires exception did not apply to the plaintiffs' claims against Stein because Stein did not lack legal authority to approve the plat with the variances. Id. at *14. "And, to the extent that Brown, as Secretary and an ex officio member of the Planning Commission, played a role in the approval of the plat with the variances, we also conclude that she was not without legal authority to do so." Id.
C. Stone's Claims Against the City and County
In her petition, Stone requests permanent injunctions against the City and County prohibiting them from "recognizing" the Replat and issuing or renewing permits for the Property that violate the Restrictions. In their pleas to the jurisdiction, the City Appellees and County Appellees argued, among other things, that Stone's suit should be dismissed for lack of jurisdiction based on governmental immunity grounds because (1) the Legislature has not waived the City's and County's immunity over Stone's claims and (2) the ultra vires exception to governmental immunity is inapplicable.
As political subdivisions of the state, the City and County are immune from suit and liability unless their immunity is waived by the Legislature. See Schroeder, 646 S.W.3d at 332; see also Heinrich, 284 S.W.3d at 369-70. Stone does not argue that the Legislature waived the City's or County's immunity with respect to the approval of replats and issuance of permits. See generally Schroeder, 646 S.W.3d at 332 (stating plaintiff "concedes that [the Legislature] has not [waived governmental immunity] in the case of plat approval"). Rather, Stone argues the City and County are not immune because "the City's approval and County's further affirmation of the Replat qualify as ultra vires acts."
Ultra vires claims, however, "cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity." Heinrich, 284 S.W.3d at 373; see also Patel v. Tex. Dep't of Licensing & Regul., 469 S.W.3d 69, 76 (Tex. 2015) (stating ultra vires claims "may not be brought against a governmental unit, but must be brought against the allegedly responsible government actor in his official capacity"). The underlying governmental entity remains immune from an ultra vires suit, "even though the suit is, for all practical purposes, against the state." Heinrich, 284 S.W.3d at 373. As governmental units, the City and the County are not proper parties to an ultra vires claim, and they therefore retain their immunity from such suits. Id. (stating ultra vires claims "cannot be brought against the state, which retains immunity"). Stone's ultra vires claims against the City and County are thus barred by governmental immunity. See id.
D. Stone's Ultra Vires Claims Against Brown
In her petition, Stone asserted an ultra vires claim against Brown, in her official capacity as Director of the City's Planning Department and Secretary of the Commission based on Brown's alleged failure to perform what Stone asserts are purely ministerial acts. See id. at 372 (stating plaintiff in ultra vires suits must "allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act"). Stone alleged that Brown signed the Replat on December 27, 2018, certifying that "the Planning Commission of the City of Houston, Texas had approved the Replat and Subdivision of Lakeview Homes Partial Replat No. 3 in conformance with the laws of the State of Texas and the ordinances of the City of Houston, as shown hereon, and authorized the recording of this plat." Stone argues the Replat violates Sections 212.014, and 212.0146 of the Local Government Code because the Replat attempts to amend, remove, or violate the Restrictions. According to Stone, Brown "had a ministerial duty to comply with Sections 212.014, 212.0146, and 212.015 of the Texas Local Government Code before approving or signing the replat," as well as a "duty to comply with Chapter 42 of the City of Houston's Code of Ordinances in approving the replat, including compliance with Section 42-193." In other words, Stone contends that Brown had a ministerial duty to deny the Replat because the Replat violates the Restrictions and Sections 212.014, and 212.0146 of the Local Government Code.
Section 42-193 of the Code of Ordinances states: "A plat restriction limiting the use of property to residential or single-family residential use may be amended to permit the use of that property only for landscape, park, recreation, drainage, or open space uses." Hous., Tex., Code of Ordinances ch. 42, art. III, § 42-193(c)(1). Stone does not argue on appeal that Brown had a ministerial duty to comply with Section 42-193.
The Subdivision is located in the City's extraterritorial jurisdiction, and thus the Commission was solely responsible for is responsible for reviewing and approving Replat. See Tex. Loc. Gov't Code § 212.006(a); Hous., Tex., Code of Ordinances ch. 33, art. II, § 33-22(a); see also Tex. Loc. Gov't Code § 242.002(c) ("In the extraterritorial jurisdiction of a municipality, the municipality has exclusive authority to regulate subdivisions under Subchapter A of Chapter 212 and other statutes applicable to municipalities."). Brown is the Commission's Secretary and an ex officio member. See Martinez, 2023 WL 162743, at *10.
Pursuant to Section 212.009(c) of the Local Government Code, all plats approved by the Commission must be endorsed with a certificate indicating such approval and the certificate must be "signed by . . . the authority's presiding officer and attested by the authority's secretary" or "a majority of the members of the authority." Tex. Loc. Gov't Code § 212.009(c). In her petition, Stone alleged that the Commission "considered and approved" the Replat and that Brown, as the Commission's Secretary, signed the Replat certifying that the Commission had approved the Replat "in conformance with the Laws of the State of Texas and the Ordinances of the City of Houston, as shown hereon, and authorized the recording of the plat." Brown thus satisfied her ministerial duty to certify the Replat's approval. See id.; see also Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) ("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."). Thus, Stone has failed to allege facts affirmatively demonstrating that Brown engaged in actionable ultra vires conduct when she signed the Replat. See Heinrich, 284 S.W.3d at 372 (stating plaintiff in ultra vires suits must "allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act"); see also Matzen, 659 S.W.3d at 388 (stating plaintiff must "allege facts affirmatively demonstrating actionable ultra vires conduct by state officials in order to avoid dismissal on jurisdictional grounds due to sovereign [or governmental] immunity").
Stone's ultra vires claim against Brown based on Brown's alleged approval of the Replat fares no better. Sections 212.014 and 212.0146 of the Local Government Code prohibit the approval of a subdivision plat that attempts to amend, remove, or violate deed restrictions. See Tex. Loc. Gov't Code §§ 212.014, 212.0146. According to Stone, Brown had a ministerial duty to deny the Replat, which attempts to amend, remove, or violate the Restrictions, because the Replat violates Sections 212.014 and 212.0146. In other words, Stone alleges that Brown had a ministerial duty to deny the nonconforming plat. Although a government officials have a ministerial duty to approve a conforming plat, "[t]he Local Government Code does not create a ministerial duty to deny a nonconforming plat." Schroeder, 646 S.W.3d at 333; see also id. at 336 ("The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one."). The Commission members thus did not commit an ultra vires act by failing to deny the allegedly nonconforming plat. Id. at 333 (stating official commits ultra vires act when he "act[s] without legal authority or fail[s] to perform a purely ministerial act" (quoting Heinrich, 284 S.W.3d at 372)).
As this court explained in Martinez,
The Code [of Ordinances] directs the Planning Commission to determine a plat's conformity. The Supreme Court of Texas has explained that the determination of a plat's conformity "is a discretionary one that necessarily involves 'interpreting and construing applicable ordinances.'" Schroeder, 646 S.W.3d at 335 (quoting Smith, 687 S.W.2d at 303 (cleaned up)). Other than requiring consideration of the plat, which was considered here, the Code does not otherwise constrain the Planning Commission's discretion in determining a class III plat's conformity with Chapter 42 and "other applicable law."Martinez, 2023 WL 162743, at *12. In her petition, Stone acknowledged that the Commission "considered and approved" the Replat. While Stone disagrees with the Commission members' finding that the Replat conforms to Chapter 42 of the Code of Ordinances, Chapter 212 of the Local Government Code, and all other applicable regulations, the members of the Commission had the authority and the discretion to make such a finding. See Schroeder, 646 S.W.3d at 335 (holding plaintiff's ultra vires claim against commission member based on allegedly erroneous approval of plat was barred by governmental immunity because member had discretion to decide plat's conformity with regulations); see also Martinez, 2023 WL 162743, at *13 ("[W]hen government officials like members of the Planning Commission are given unconstrained discretion to interpret laws collateral to their enabling authority, a misinterpretation of the law is not overstepping their authority."). Because they found the Replat conformed to the applicable regulations, the Commission members had a ministerial duty to approve the Replat. See Schroeder, 646 S.W.3d at 332. To the extent Brown played a role in the approval of the Replat, she, like the other Commission members, had discretion to find that the Replat conformed to the regulations and a ministerial duty to approve the Replat under that circumstance. See id.
Stone has thus failed to allege facts affirmatively demonstrating that Brown engaged in actionable ultra vires conduct when she allegedly approved of the Replat. See Heinrich, 284 S.W.3d at 372 (stating plaintiff in ultra vires suits must "allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act"); see also Matzen, 659 S.W.3d at 388 (stating plaintiff must "allege facts affirmatively demonstrating actionable ultra vires conduct by state officials in order to avoid dismissal on jurisdictional grounds due to sovereign [or governmental] immunity"). Stone's claims against Brown are thus barred by governmental immunity.
E. Stone's Ultra Vires Claims Against Blount
In her petition, Stone asserted an ultra vires claim against Blount, in his official capacity as the County Engineer based on Blount's alleged failure to perform what Stone asserts is a purely ministerial act. See Heinrich, 284 S.W.3d at 372.
Stone argues the Replat violates Section 232.009 of the Local Government Code because the Replat attempts to amend, remove, or violate the Restrictions, and thus "interfere[s] with the established rights of any owner of a part of the subdivided land." Tex. Loc. Gov't Code § 232.009(d)(1). In her petition, Stone asserted that Blount, as the County's engineer, "had a ministerial duty to comply with Section 232.009 of the Texas Local Government Code before approving or signing the replat." In other words, Stone contends Blount had a ministerial duty to deny the Replat because the Replat violates the Restrictions and Section 232.009 of the Local Government Code.
Section 232.009(d) requires the Commissioners Court to "adopt an order to permit the revision of the subdivision plat if it is shown to the court that . . . the revision will not interfere with the established rights of any owner of a part of the subdivided land." Id. § 232.009(d)(1). This section thus imposes an affirmative duty upon the members of the Commissioners Court to approve a subdivision replat they determine does not "interfere with the established rights of any owner of a part of the subdivided land." See id. The plain language of Section 32.009(d) does not, however, require the members of the Commissioners Court to deny a nonconforming replat. See generally Schroeder, 646 S.W.3d at 336 ("The Legislature created a ministerial duty to approve a conforming plat, with no reciprocal duty to deny a nonconforming one."). Section 32.009(d) also does not impose any restrictions on the Commissioners Court's ability to evaluate whether a replat interferes with another subdivision owner's rights. Stone has not cited to any legal authority obligating Blount to deny the Replat.
Stone has thus failed to allege facts affirmatively demonstrating that Blount engaged in actionable ultra vires conduct when he allegedly approved of the Replat. See Heinrich, 284 S.W.3d at 372; see also Matzen, 659 S.W.3d at 388. Stone's ultra vires claims against Blount are thus barred by governmental immunity.
Conclusion
Because Stone's claims against Appellees are barred by governmental immunity, we affirm the trial court's judgment dismissing Stone's claims against the City Appellees and County Appellees with prejudice.
Remanding this case to the trial court to give Stone an opportunity to amend her pleadings would serve no legitimate purpose because Stone's underlying claim is based on her contention that the Replat was nonconforming and thus the City, the County, and their respective officials, had a ministerial duty to deny a nonconforming replat. According to Stone, the Commission and the Commissioners Court considered the Replat and approved it. As discussed, this is all the law requires them to do. The members of the Commission and members of the Commissioners Court who approved the Replat had the discretion to determine whether it conformed to the applicable regulations and third parties, such as Stone, do not have the right to second-guess their decision. See Schroeder v. Escalera Ranch Owners' Ass'n, Inc., 646 S.W.3d 329, 335 (Tex. 2022) (stating "the Legislature has not created a mechanism for third parties to seek judicial review of a municipality's platting approval," and "[p]roviding 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"). Once they determined that the Replat conformed, the Commission members and members of the Commissioners Court had a ministerial duty to approve it. However, even if they had determined that the Replat was nonconforming, the officials would not have had a ministerial duty to deny it. We thus will not give Stone an opportunity to replead her claim. See 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.").