Opinion
No. 04-04-00907-CV
Delivered and Filed: April 27, 2005.
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-19812, Honorable Lori Massey, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Appellant, the Town of Hollywood Park, is a municipality located in Bexar County, Texas. Appellees are residents of the Town of Hollywood Park and members of a non-profit organization dedicated to the prevention of cruelty to animals. In December 2002, appellant enacted an ordinance prohibiting the purposeful feeding of deer on privately owned property within the town ("the feeding ban ordinance"). In December 2003, appellant enacted a resolution authorizing the trapping, killing, and transporting of deer within the town limits. Appellees filed suit in December 2003, and appellant removed the case to federal court. In early 2004, the federal court denied appellees' request for injunctive relief and remanded the case back to state court.
In their First Amended Petition, appellees raise a number of complaints against the town, including that the feeding ban ordinance violates Texas Health and Safety Code chapter 821, which prohibits the cruel and inhumane treatment of animals. Appellant filed a plea to the jurisdiction in which it argued that no private cause of action exists under chapter 821, and alternatively, it was entitled to governmental immunity because chapter 821 contained no legislative waiver of immunity. The trial court denied the plea, and this appeal ensued.
Although appellant's plea to the jurisdiction was based entirely on its arguments under chapter 821, it requested a dismissal of all of appellees' claims. However, on appeal, appellant acknowledges that the "only issue present for appeal is whether the trial court has jurisdiction to hear the challenge brought under the Texas Health and Safety Code." Accordingly, on appeal, we address only whether the trial court erred in refusing to dismiss appellees' claims that the town's feeding ban ordinance conflicts with Health and Safety Code chapter 821. We conclude the trial court did not err; therefore, we affirm.
IMMUNITY FROM SUIT
On appeal, appellant asserts it is entitled to immunity from suit because chapter 821 (1) contains no clear and unequivocal waiver of immunity, (2) does not require that the State of Texas or a political subdivision be made a party to a suit, and (3) provides no monetary cap on damages. While these are factors that may be considered in determining whether language in a statute constitutes an express and unambiguous waiver of immunity, see Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 697-98 (Tex. 2003), we do not agree that they apply here because the issue is not whether appellant is immune from suit under chapter 821. Instead, the issue is whether appellant is immune from a suit on the grounds that its ordinance is inconsistent with chapter 821.
Appellant is a Type-A general municipality, which "may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic." Tex. Loc. Gov't Code Ann. §§ 51.011, 51.012 (Vernon 1999) (emphasis added). Appellant may sue or be sued. Id. § 51.013. In this suit, appellees do not attempt to hold the town liable for damages based on any alleged violation of chapter 821. Instead, on appeal, appellees concede they challenge the feeding ban ordinance on the grounds that it violates State law and they seek an injunction to prevent enforcement of the ban to the extent it is invalid or improperly applied. Under these circumstances, we conclude that appellant is not immune from a suit to determine whether its ordinance is inconsistent with state law. Cf. Texas S. Univ. v. Araserve Campus Dining Servs., 981 S.W.2d 929, 935 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (unlike suits for monetary damages, suits against State seeking equitable remedies for constitutional violations are allowed without State's consent); Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 730 (Tex.App.-Corpus Christi 1994, writ denied) (a municipality is not immune from its performance of proprietary functions); Tex. Civ. Prac. Rem. Code Ann. § 37.006(b) (Vernon 1997) (a municipality must be made a party and is entitled to be heard in any proceeding involving validity of a municipal ordinance).
CONCLUSION
Because appellant is not immune from suit on appellees' claim that the feeding ban ordinance is inconsistent with Texas law, the trial court did not err in denying the plea to the jurisdiction. Therefore, we affirm the trial court's judgment.
We do not address appellant's first issue regarding whether chapter 821 creates a private cause of action against a municipality because, even if appellants are correct that there exists no private cause of action under this statute, as discussed above, appellant is not immune from a suit to determine whether its ordinance violates state law.