                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 THE CITY OF EL PASO,                                          No. 08-12-00264-CV
                                                §
                       Appellant,                                   Appeal from
                                                §
 v.                                                         County Court at Law No. 3
                                                §
 JOHN FOX,                                                   of El Paso County, Texas
                                                §
                       Appellee.                                 (TC # 2009-5570)
                                                §


                                         OPINION

       The City of El Paso appeals from an order denying its plea to the jurisdiction. We

reverse and render judgment dismissing John Fox’s suit against the City.

                                    FACTUAL SUMMARY

       In 2009, Horace Perkins, Jr. filed suit against the City alleging that in 2005 he acquired

an undivided portion of an apartment complex co-owned by John Fox and the City’s order

requiring removal of the electric meters on the property violated his rights to due process and

equal protection. He sought injunctive relief and also asserted claims for inverse condemnation

and breach of conduct. The City filed an answer and a plea to the jurisdiction. Fox filed a

petition in intervention asserting that he is the principal owner of the apartment complex. He

sought monetary damages for inverse condemnation arising from the City’s order for removal of

the electric meters on the property. Perkins died while the suit was pending.
        The City filed a motion to declare Fox a vexatious litigant, or alternatively, to strike the

petition in intervention.1 At the hearing on the motion, Fox represented to the court that he

intended to hire counsel. The trial court entered an order requiring Fox to hire counsel within 30

days or the court would enter an order declaring Fox to be a vexatious litigant. An attorney

made an entry of appearance on Fox’s behalf in accordance with the order. Fox subsequently

filed an amended petition alleging that the City’s removal of the electric meters had resulted in

an extrajudicial de facto condemnation of the property which had continued since 2001. The

amended petition dropped the request for monetary damages and instead sought a declaration

that the condemnation of the property constituted a deprivation of his right to due process.

Additionally, Fox sought a declaration that the City could not condemn his property without

notice or a hearing. The City responded by filing an amended motion to strike the plea in

intervention, and in the alternative, an answer and plea to the jurisdiction. Following a hearing,

the trial court entered an order denying the City’s plea to the jurisdiction.

                                        PLEA TO THE JURISDICTION

        In two related issues, the City challenges the trial court’s order denying the plea to the

jurisdiction.

                                  Standard of Review and Relevant Law

        A plea to the jurisdiction is a dilatory plea by which a party challenges the court's

authority to determine the subject matter of the action. Harris County v. Sykes, 136 S.W.3d 635,

638 (Tex. 2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

The burden is on the plaintiff to allege facts affirmatively demonstrating that the trial court has

subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587


1
   Over the last ten years and counting this case, Fox has filed fourteen suits against the City and various city
officials related to the City’s condemnation of Fox’s property.

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(Tex. 2001); City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13, 18 (Tex.App.--El Paso 2012, pet.

denied). Whether a party has alleged facts that affirmatively demonstrate a trial court’s subject

matter jurisdiction is a question of law which is subject to de novo review. Texas Department of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mazie’s, 408 S.W.3d at 18.

Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s

jurisdiction is also a question of law subject to de novo review. Miranda, 133 S.W.3d at 226.

       When a plea to the jurisdiction challenges the pleadings, we look to the pleader’s intent,

construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the

pleadings as true to determine if the pleader has alleged sufficient facts to affirmatively

demonstrate the trial court’s jurisdiction to hear the case. Heckman v. Williamson County, 369

S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively negate the existence of jurisdiction,

then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to

amend its pleading. Miranda, 133 S.W.3d at 226-27.

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, the

appellate court considers relevant evidence on that issue even where those facts may implicate

the merits of the cause of action. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009);

Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence

“generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”

Miranda, 133 S.W.3d at 228. Under this standard, when reviewing a plea in which the pleading

requirement has been met, we credit as true all evidence favoring the non-movant and draw all

reasonable inferences and resolve any doubts in the non-movant’s favor. Id. The movant must

assert the absence of subject-matter jurisdiction and present conclusive proof that the trial court

lacks subject-matter jurisdiction. Id. If the movant discharges this burden, the non-movant must



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present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will

be sustained. Id. If the evidence creates a fact question regarding the jurisdictional issue, then

the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by

the fact finder. Id. at 227-28. The trial court rules on the plea to the jurisdiction as a matter of

law if the relevant jurisdictional evidence is undisputed or it fails to raise a fact question on the

jurisdictional issue. Id. at 228.

        Sovereign immunity protects the State from lawsuits for money damages.                 Reata

Construction Corporation v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Texas Natural

Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). It also

deprives a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. Political

subdivisions of the state, including cities, are entitled to such immunity--referred to as

governmental immunity--unless it has been waived. Reata, 197 S.W.3d at 374; City of El Paso

v. High Ridge Construction, Inc., --- S.W.3d ---, 2014 WL 3765932 (Tex.App.--El Paso 2014, no

pet. h.).

                     Failure to Plead Valid Waiver of Governmental Immunity

        In Issue One, the City alleges that Fox failed to plead sufficient facts to show that the

City’s immunity from suit has been waived.           Fox’s amended petition seeks a declaratory

judgment that the removal of the electric meters from the property constituted a de facto

condemnation of the property and deprived Fox of his right to due process. Additionally, Fox

sought a declaration that the City could not condemn his property without notice or a hearing.

The City asserts that Fox’s declaratory judgment claim is simply a recasting of his inverse

condemnation claim which sought monetary damages.




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       A party generally can maintain a suit to determine its rights without legislative

permission because such suits are not considered a suit against the state for purposes of

sovereign immunity. City of El Paso v. Bustillos, 324 S.W.3d 200, 205 (Tex.App.--El Paso

2010, no pet.), citing Texas Natural Resources Conservation Commission v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002). Similarly, a plaintiff whose constitutional rights have been violated may

sue the state for equitable relief. City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007);

Bustillos, 324 S.W.3d at 205, citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 144 & 149

(Tex. 1995). On the other hand, sovereign immunity from suit cannot be circumvented by

characterizing a suit for money damages as a declaratory judgment claim. Bustillos, 324 S.W.3d

at 205. A suit against a sovereign for money damages is not transformed into a viable suit by the

request for a declaratory judgment. Bustillos, 324 S.W.3d at 205. If the sole purpose of a

declaration concerning contractual or statutory rights is to obtain a money judgment, immunity is

not waived. Id.

       We do not agree with the City that Fox is attempting to circumvent sovereign immunity

by disguising a claim for money damages as a declaratory judgment claim. Fox’s original

petition in intervention included a claim for money damages but his first amended petition is

restricted to requesting only declaratory and injunctive relief related to his assertion that the City

violated his right to due process. See Bustillos, 324 S.W.3d at 207 (rejecting city’s argument that

the declaratory judgment action is a disguised claim for monetary relief where record showed

that plaintiffs had amended their pleadings to drop request for money damages). Issue One is

overruled.




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                      Section 214.0012 of the Texas Local Government Code

        In its second issue, the City contends that the trial court does not have subject matter

jurisdiction of Fox’s declaratory judgment action because he failed to timely appeal the

condemnation order issued by the El Paso City Council in 2003. In its plea to the jurisdiction,

the City asserted that the removal of the electric meters from Fox’s property was part of the

lawful condemnation of the property by the City on August 12, 2003. The City maintained that

Fox had failed to comply with Section 214.0012 of the Local Government Code by timely filing

a verified petition specifying the grounds of the illegality and requesting issuance of a writ of

certiorari from a state court.

        Section 214.0012 of the Texas Local Government Code provides the following, in

pertinent part: “Any owner, lienholder, or mortgagee of record of property jointly or severally

aggrieved by an order of a municipality issued under 214.001 may file in district court a verified

petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of

the illegality.” TEX.LOC.GOV’T CODE ANN. § 214.0012(a)(West 2008). The petition must be

filed within 30 calendar days after a copy of the final decision of the municipality is personally

delivered, mailed by first class mail, or delivered by the U.S. Postal Service using signature

confirmation service to the owner, lienholder, or mortgagee of record. Id. Filing of the petition

for writ of certiorari is a prerequisite to invoking the trial court’s subject-matter jurisdiction over

the appellate proceeding. Fox v. Wardy, 318 S.W.3d 449, 453 (Tex.App.--El Paso 2010, pet.

denied).

        Fox has not filed a brief on appeal, but he asserted in the trial court that he is not

attacking the condemnation order entered by the City Council in 2003. Fox maintains that he is

“requesting that the City be required to provide due process to him to facilitate his rehabilitation



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of the condemned property . . . .” Fox’s pleadings allege that the City caused the electric meters

to be removed from his property and the City “purported to condemn the property for various

alleged deficiencies” but he has never received notice of those deficiencies. Although Fox

claims he is not challenging the condemnation order, his pleadings are to the contrary.

       The City did not attach to its plea to the jurisdiction a copy of the resolution entered by

City Council on August 12, 2003. The City instead relied on our decision in Fox v. Wardy which

held that Fox had failed to comply with the requirements of Section 214.0012. See Fox, 318

S.W.3d at 453. An appellate court may judicially notice an adjudicative fact not subject to

reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the

trial court or (2) capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned. TEX.R.EVID. 201(b). The facts described by Rule

201(b)(1) are known as “notorious facts” and the facts described by Rule 201(b)(2) are known as

“verifiably certain facts.” Tranter v. Duemling, 129 S.W.3d 257, 262 (Tex.App.--El Paso 2004,

no pet.), quoting Cathy Cochran, Texas Rules of Evidence Handbook 138-41 (5th ed. 2003). The

minutes from the August 12, 2003 meeting of City Council are available on the City of El Paso’s

website. We take judicial notice of the minutes sua sponte. See Lazarides v. Farris, 367 S.W.3d

788, 799 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(taking judicial notice that the minutes

were available on the city’s website); Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.App.--

Houston [14th Dist.] 1991, no writ)(acknowledging that a court may take judicial notice of

matters of public record, whether requested by a party or on its own motion, for the first time on

appeal).

       The minutes reflect that the owner of the property, John J. Fox, appeared before the City

Council on August 12, 2003 and the City Council entered a resolution finding that the structures



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located on Fox’s property are unsafe, substandard, unfit for human habitation or use, and

therefore a hazard to the public health, safety, and welfare; the structures are not in substantial

compliance with municipal ordinances regulating fire protection, structural integrity, and

disposal of refuse; and the structures could be repaired. The resolution ordered Fox to comply

with several requirements, including that the buildings be vacated until reconstructed to meet

current codes within 30 days and the premises be cleaned of all weeds, trash, and debris within

30 days. The resolution also scheduled a public hearing on October 7, 2003 to determine if Fox

had complied with these requirements.

       By his declaratory judgment action, Fox effectively seeks judicial review of the City’s

order in that he complains his right to due process was violated because he was not given notice

of the deficiencies and not afforded a hearing. This is the type of review contemplated by

Section 214.0012. As we observed in a previous appeal, Fox did not file a verified petition for

writ of certiorari within thirty days after the City entered the resolution on August 12, 2003. See

Fox, 318 S.W.3d at 453. Consequently, he did not invoke the trial court’s jurisdiction to review

the condemnation order. Issue Two is sustained. We reverse the trial court’s order and render

judgment granting the City’s plea to the jurisdiction and dismissing Fox’s suit against the City.


October 8, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)




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