


                                                                                                                             
 
 
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG  
                                                                                                                     

 
NUMBER
13-10-00228-CV
 
HIDALGO COUNTY,                                                            Appellant, 
 
  v.
 
MALCOLM G. DYER,                                           
     Appellee.
                                                                                                                     
  
 
NUMBER 13-10-00251-CV
 
TEXAS DEPARTMENT OF
TRANSPORTATION,                                                           Appellant, 
 
  v.
 
MALCOLM G. DYER,                                        
         Appellee.
                                                                                                                     
  
 
On appeal from the 398th
District Court 
of Hidalgo County,
Texas.
                                                                                                                     

 
OPINION
 
Before Chief Justice
Valdez and Justices Rodriguez and Perkes   
Opinion
by Justice Perkes  
            These
cases are interlocutory, accelerated appeals from the trial court’s orders denying
the Texas Department of Transportation (“the Department”) and Hidalgo County’s
(“the County”) respective pleas to the jurisdiction based on sovereign and
governmental immunity.[1] 
We conclude the trial court lacked subject-matter jurisdiction over all of
appellee Malcolm G. Dyer’s claims challenged on appeal.  We reverse the trial
court’s respective orders denying the Department and the County’s pleas to the
jurisdiction and render judgment dismissing all of Dyer’s claims with prejudice,
except for Dyer’s inverse-condemnation claim, which is not challenged on appeal. 

I.  FACTUAL AND
PROCEDURAL BACKGROUND
In May 2006, the County filed a
condemnation action in county court to acquire fee title to approximately 1.48
acres of land Dyer owned in Hidalgo County, Texas.[2] 
The County sought the land for purposes of expanding Jackson Road in Hidalgo
County.[3] 
A Special Commissioners’ Hearing was convened in July 2006 to assess damages
the County owed Dyer for the condemnation.  Dyer claimed he never received
proper notice of the hearing, and he did not participate in the hearing.[4] 
In August 2006, the county court adopted the Special Commissioners’ findings as
its judgment in the County’s condemnation suit.  
On or about April 1, 2007, the
Department and the County entered and took possession of Dyer’s property. 
According to Dyer, the Department and the County started storing equipment on
his land, destroyed access to one parcel of his land without ever restoring it,
and diminished his income from mining soil on his land.
In October 2007, Dyer filed a partial
motion for summary judgment in the county court, seeking dismissal of the
County’s condemnation action for lack of jurisdiction.  Among other things,
Dyer complained he was not given proper notice of the Special Commissioners’
Hearing.  In January 2008, the county court granted Dyer’s partial motion for
summary judgment, and dismissed the County’s condemnation action as defective. 
In April 2008, the county court signed an agreed order to sever Dyer’s
counterclaims against the County from the condemnation case.[5]

In June 2008, Dyer sued the Department
and the County in the trial court, the 398th District Court of Hidalgo County. 
Against each defendant, Dyer alleged a claim for inverse condemnation under
article 1, section 17 of the Texas Constitution, violation of the due-course-of-law
provision in article 1, section 19 of the Texas constitution, violation of the
Texas Private Real Property Rights Preservation Act, violation of title 42,
section 1983 of the United States Code, trespass, and claims for attorney’s
fees.  In February 2009, Dyer filed his First Amended Petition, adding claims
for declaratory relief premised on the previously-filed claims in the lawsuit.
Both the Department and the County
answered Dyer’s suit and asserted pleas to the jurisdiction.  The trial court
held a hearing on the pleas to the jurisdiction at which Dyer testified.  After
the hearing, Dyer filed a Second Amended Petition, adding a claim for
“negligent trespass.”[6] 
  
Several months later, the trial court
denied the Department and the County’s respective pleas to the jurisdiction. 
The trial court signed two orders denying the respective pleas.  The County and
the Department each filed a timely notice of accelerated, interlocutory
appeal.  See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (West 2008) (authorizing interlocutory
appeal from a district court’s order denying a governmental unit’s plea to the
jurisdiction); see also Id. § 101.001 (West 2005) (defining
“governmental unit” so as to include the Department and the County); Tex. R. App. P. 28.1 (identifying and
setting forth procedural rules for accelerated appeals).     
There
being two orders, a separate cause number was assigned to each case on appeal. 
The appeals arise from a single case in the trial court and a single set of facts. 
The record on appeal has been consolidated in these cases.  Although the
appeals have not been consolidated, in the interest of judicial economy, we
issue a single opinion herein disposing of both appeals.
II.    ISSUES PRESENTED
            The
Department and the County each present this single issue, with several
sub-issues for review; Does the trial court lack subject-matter jurisdiction over
the following:
(1) 
 Dyer’s
claim under article 1, section 19 of the Texas Constitution;
(2)   Dyer’s
claim under title 42, section 1983 of the United States Code;
(3)   Dyer’s
claim under the Texas Private Real Property Rights Preservation Act;
(4)   Dyer’s
trespass claim;
(5)   Dyer’s
declaratory-judgment claims; and
(6)   Dyer’s
attorney’s fees claims?[7]

III.  
 STANDARD
OF REVIEW AND BURDEN OF PROOF
To render a binding judgment, a court
must have both subject-matter jurisdiction over the controversy and personal
jurisdiction over the parties.  Spir Star AG v. Kimich, 310 S.W.3d 868,
871 (Tex. 2010).  A plea to the jurisdiction is a dilatory
plea; its purpose is “to defeat a 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).  The plea challenges the trial court’s subject matter
jurisdiction over a pleaded cause of action.  Tex. Dep’t of Parks and
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Cameron County,
Tex. vs. Ortega, 291 S.W.3d 495, 497 (Tex. App.—Corpus Christi 2009, no
pet.).  Subject- matter jurisdiction is a question of law; therefore, we review
the trial court’s ruling on a plea to the jurisdiction de novo.  See Miranda, 133 S.W.3d at 228;
Ortega, 291 S.W.3d at 497.  
A
plaintiff bears the burden of alleging facts that affirmatively demonstrate the
trial court's jurisdiction.  Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d
864, 867 (Tex. 2002); State of Tex. Parks & Wildlife Dept.
v. Morris, 129 S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no
pet.).  In
deciding a plea to the jurisdiction, a court may not weigh the merits of the
causes of action, but must consider only the plaintiff’s pleadings and any
evidence in the record pertinent to the jurisdictional inquiry.  County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); City
of Laredo v. Nuno, 94 S.W.3d 786, 788 (Tex. App.—San Antonio 2002, no pet.). 
The appellate court must examine the pleader's intent and construe the pleading
in the plaintiff's favor.  Brown, 80 S.W.3d at 555; Ramirez, 74
S.W.3d at 867.  However, a plea to the jurisdiction may be granted without
allowing the plaintiff to amend the pleading if the pleading affirmatively
negates the existence of jurisdiction.  Brown, 80 S.W.3d at 555; Ramirez,
74 S.W.3d at 867.  
IV.   ANALYSIS

            On appeal, Dyer argues this
Court should not analyze on a claim-by-claim basis whether the trial court had
subject-matter jurisdiction because the Department and County’s pleas to the
jurisdiction were general and asked that all of Dyer’s claims be dismissed. 
The reporter’s record on appeal shows that at the special-appearance hearing,
without objection, the Department challenged the trial court’s subject-matter
jurisdiction claim-by-claim, the County adopted the Department’s arguments as
its own, and afterward the trial court denied the respective pleas to the
jurisdiction.  In Thomas v. Long, the Supreme Court of Texas held a
trial court should address subject-matter jurisdiction claim-by-claim,
dismissing claims over which it lacks subject-matter jurisdiction and retaining
claims in the same case over which it has jurisdiction.  207 S.W.3d 334, 338–39
(Tex. 2006).  Accordingly, we address Dyer’s claims individually to determine
whether the trial court lacked subject-matter jurisdiction over them.  See
id.
A.     Dyer’s
Trespass Claim
            The Department and the County argue that
immunity from suit has not been waived for Dyer’s trespass claim because Dyer
has alleged an intentional tort for which the Texas Tort Claims Act does not
waive immunity.  We agree.
            The Texas Tort Claims Act
(the “Act”) provides a limited waiver of immunity for certain suits against
governmental entities and caps recoverable damages.  See Tex. Civ. Prac. & Rem. Code Ann. §§
101.021, 101.023 (West 2005).  The Act does not waive immunity for claims
arising from any intentional tort.  Id.  § 101.057 (West 2005).  In
determining whether a plaintiff’s claims are barred by immunity, we look to the
substance of the claims alleged because governmental immunity cannot be
circumvented by artful pleading.  See Tex. Dep’t of Pub. Safety v. Petta,
44
S.W.3d 575, 577 & 580 (Tex. 2001); Harris County v. Cabazos,
177 S.W.3d 105, 111-12 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Delaney
v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex. 1992)).
            The intentional tort of trespass involves the
intent to commit an act which violates a property right or is practically
certain to have that effect, although the actor may not know the act he intends
to commit is a violation of a property right.  Warwick
Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park
Warwick, L.P.  298 S.W.3d 436, 447 (Tex.
App.—Houston [14th Dist.] 2009, no pet.); Harris County v. Cypress Forest
Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001,
no pet.).  Dyer pleaded that the Department and the County
trespassed on his property by entering it and “staging” construction
materials/equipment, concrete, and piping on it.  Dyer pleads the Department
and the County’s contractor for the Jackson Road Project told Dyer that the
Department and the County instructed the contractor to place and keep these
items on Dyer’s property.  In the alternative, Dyer claims these same actions
are a “negligent trespass” that caused him damages.  
            Although Dyer attempts to characterize his
trespass claim as a negligence claim, Dyer’s petition alleges intentional
conduct for which there is no waiver of immunity.  See Harris County, 50
S.W.3d at 554 (holding allegation of trespass by dumping hazardous materials on
land alleged an intentional tort).  In light of this conclusion, we need not
reach the County’s argument that the trial court lacked subject-matter jurisdiction
over Dyer’s trespass claim because Dyer failed to give pre-suit notice of this
claim under Texas Civil Practice and Remedies Code section 101.101.  See Tex. Civ. Prac. & Rem. Code Ann. §
101.101 (West 2005).  We sustain the Department and the County’s fourth sub-issue
on appeal.       
B.  
 Dyer’s Texas Private Real Property Rights and
Preservation Act Claims
              The Department argues Dyer’s claim against
it under the Texas Private Real Property Rights Preservation Act (“PRPRPA”)
should have been dismissed for lack of subject-matter jurisdiction because Dyer
failed to exhaust his administrative remedies by filing a contested case with
the Department, a prerequisite to judicial review of Dyer’s PRPRPA claim
against the Department.  See Tex. Gov't Code Ann. § 2007.001–.045
(West 2008) (PRPRPA).  The County argues Dyer’s PRPRPA claim against
it should be dismissed for lack of subject-matter jurisdiction because Dyer
failed to timely file the PRPRPA claim against it in district court.  
i.      Standard
of Review for Questions of Statutory Construction
We
review questions of statutory construction de novo.  Singleton v. Casteel,
267
S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.
2003)).  In construing statutes, our primary objective is to give
effect to the Legislature's intent.  Tex. Lottery Comm’n v. First State Bank
of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).  We rely on the
plain meaning of the text as expressing legislative intent, unless a different
meaning is supplied by legislative definition or is apparent from the context,
or the plain meaning leads to absurd results.  Id.  We presume the
Legislature selected the language in a statute with care and that every word or
phrase was used with a purpose in mind.  Id.  When the language of a
statute is clear and unambiguous, Texas courts do not resort to rules of
construction or extrinsic aids to construe the language.  Id. at 640
(citing City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008)).
PRPRPA
waives sovereign immunity from suit and liability to the extent it creates
liability.  See Tex. Gov't Code
Ann. § 2007.004(a).  PRPRPA authorizes a “private real property owner”
to seek a determination that a “governmental action” constitutes a “taking” as
defined in the act.  See id. §§ 2007.002(2), (4), (5), 2007.021–.23. 
If the owner succeeds in obtaining such a determination, he is entitled to an
order that the governmental entity in question rescind the governmental action,
or the part of the governmental action resulting in the taking.  See id.
§§ 2007.023(b), .024(a).  In response to such an order, the governmental entity
has the option, instead of rescission, of paying damages as compensation to the
prevailing owner for the taking. See id. § 2007.024(c)–(f).
PRPRPA
sets forth different requirements for an “Administrative Proceeding Against [a]
State Agency” and a “Suit Against a Political Subdivision.”  Compare id. §
2007.021 (suit against political subdivision), and, §.022
(administrative proceeding against state agency).  PRPRPA provides “a private
real property owner may file a contested case with a state agency to determine
whether a governmental action of the state agency results in a taking under
this chapter.”  Id. § 2007.022(a).  PRPRPA specifies a private real
property owner may bring suit “under this subchapter to determine whether the
governmental action of a political subdivision results in a taking under this
chapter.”  Id. § 2007.021(a).  Such a suit “must be filed in a district
court in the county in which the private real property owner’s affected
property is located.”  Id.  
“In
each case, the proceeding must be filed with its appropriate tribunal ‘not
later than the 180th day after the date the private real property owner knew or
should have known that the governmental action restricted or limited the
owner's right in the private real property.’”  State
v. BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex.
App.—Austin 2009, pet. filed) (quoting Tex. Gov’t. Code Ann. §§ 2007.021(b), .022(b)). Further, “a
person who has exhausted all administrative remedies available within the state
agency and is aggrieved by a final decision or order in a contested case filed
under Section 2007.22 is entitled to judicial review” under the Administrative
Procedure Act, although such review is by trial de novo.  Tex. Gov't Code Ann. § 2007.025(b)
(referencing Government Code Chapter 2001, the Administrative Procedure Act). 
The court or state agency shall award a private real property owner or
governmental entity that prevails in a suit or a contested case reasonable and
necessary attorney’s fees and court costs.  Id. § 2007.026.
            ii.  The Department’s PRPRPA Argument
            The Department argues that
because it is a state agency, as a jurisdictional prerequisite to judicial
review of his PRPRPA claim against it, Dyer was required to timely file a
contested case with the Department.  Dyer argues filing a contested case is
optional because the statute says a contested case “may” be filed.  We agree
with the Department.  
            The parties agree the Department is a state
agency.
 See State v. Lucek, 290 S.W.3d 876, 880 (Tex. 2009) (recognizing the
Texas Department of Transportation as a state agency).  Under the plain meaning
of the text of the statute, the timely filing of a contested case with the
Department is a prerequisite for judicial review of a PRPRPA claim against it. 
See Tex. Gov't Code Ann. §
2007.022, .025(b).  While the statute provides a contested case “may” be filed
with a state agency, it also provides that sovereign immunity from a PRPRPA
claim is only waived to the extent set forth in the PRPRPA statute.  Id. §
2007.004, .022.  The statute only provides for judicial review of a PRPRPA
claim against a state agency after a person has “exhausted all administrative
remedies available within the state agency and” obtained “a final decision or
order in a contested case filed under Section 2007.22.”  Id. § 2007.025(b). 
Analyzing this language in BP America Production Company, the
Third Court of Appeals concluded a timely contested case challenging the
actions of a state agency is a jurisdictional prerequisite to filing a suit for
judicial review of a PRPRPA claim against a state agency.  BP
Am. Prod. Co., 290 S.W.3d at 348.      
Dyer’s
pleadings do not demonstrate that he exhausted his administrative remedies by
timely filing a contested case to challenge the Department’s actions.  At oral
argument, Dyer conceded he did not file a contested case with the Department
prior to seeking judicial review of his PRPRPA allegations against the
Department.  Under these facts, the district court erred in denying the
Department’s plea to the jurisdiction as to Dyer’s PRPRPA claim against the
Department.  See Tex. Gov't Code
Ann. § 2007.025(b); BP Am. Prod. Co.,
290 S.W.3d at 348.  Dyer cannot be entitled to
attorney’s fees on his PRPRPA claim against the Department in this case because
there is no way he can prevail in a contested case or suit against the
Department under PRPRPA, now that the 180 days for filing a contested case has
expired.  See Tex. Gov't Code
Ann. § 2007.022(b), .026.  We sustain the Department’s third sub-issue
on appeal. 
iii.    The
County’s PRPRPA Argument
The
County argues Dyer’s PRPRPA claim against it should be dismissed for lack of
subject-matter jurisdiction because Dyer failed to timely file his PRPRPA claim
against it in district court.  The County points out that Dyer alleges the
taking occurred in April 2007, but the present lawsuit was filed in June 2008,
well outside the applicable 180-day time frame.  Dyer maintains the time to
file his PRPRPA claim against the County in district court was tolled during
the pendency of the County’s condemnation suit against him in county court.  The
record in this case reflects that the County’s condemnation suit was filed in
May 2006 and dismissed on Dyer’s motion for summary judgment for lack of
jurisdiction in January 2008.  Dyer argues his 180 days to file suit started to
operate in April 2008, when the county court severed his counterclaims from the
County’s condemnation suit.  According to Dyer, he timely filed his PRPRPA
claim against the County by filing this lawsuit in the trial court in June 2008.
Dyer
bases his tolling argument on section 2007.003(b)(8), which provides that
PRPRPA “does not apply to” a “formal exercise of the power of eminent domain.” 
See
Tex. Gov't Code Ann. § 2007.003(b)(8). 
Otherwise, Dyer does not cite any legal authority for his tolling
argument and there is no tolling provision in the statute.  See id. §§
2007.001–.045.  Dyer simply argues that because PRPRPA does not waive immunity
for a formal exercise of eminent domain, his time to file suit against the
County was tolled until the county court granted Dyer’s motion for summary
judgment and dismissed the County’s condemnation action against Dyer for lack
of jurisdiction.  We disagree.
Nothing
in the plain language of PRPRPA provides for tolling the time a private real
property owner may bring suit against a political subdivision.  The plain
language of the statute provides “[a] suit under this subchapter must be filed
not later than the 180th day after the date the private real property owner
knew or should have known that the governmental action restricted or limited
the owner’s right in the private real property.”  Id. § 2007.021(b). 
Under the statute, the time to file suit depends only on when the property
owner knew or should have known of the restriction or limitation on the owner’s
real-property right.  It does not depend on the timing of any other factor.
Applying
the statute to this case, the parties agree the County is a political
subdivision.  See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004) (identifying counties as political subdivisions of the state).  Dyer
pleads the alleged taking of his property commenced on or about April 1, 2007,
and testified to this fact at the special-appearance hearing.  As such, Dyer’s
180 days to file his PRPRPA claim against the County in district court expired
well before June 2008, when Dyer filed his PRPRPA claim against the County in
district court.  See Tex. Gov't Code Ann. § 2007.021(b).  As
PRPRPA only waives immunity from suit to the extent provided for in the act,
the requirement that suit against a political subdivision be timely filed in
district court is jurisdictional.  See id.
§§ 2007.004(a), .021(b); BP Am. Prod. Co., 290 S.W.3d at 367 (holding
timely filing in proper district court is a jurisdictional requirement for
suing a political subdivision pursuant to PRPRPA).   
We
hold the trial court lacked jurisdiction over Dyer’s PRPRPA claim against the
County.  Dyer cannot be entitled to attorney’s fees on his PRPRPA
claim against the County because there is no way he can prevail in a PRPRPA
suit against the County, now that the 180 days for filing suit has expired.  See
Tex. Gov't Code Ann. §
2007.021(b), .026.  We sustain the County’s third sub-issue on
appeal.
In
doing so, we note that this conclusion is consistent not only with the plain
language of the statute, but also with Dyer’s position in the trial court until
the time of the special-appearance hearing.  In Dyer’s response to the County’s
plea to the jurisdiction, which was a live pleading at the time of the
special-appearance hearing, Dyer argued the trial court had jurisdiction over
his PRPRPA claim because the County’s condemnation action filed in county court
was not a “formal exercise of the power of eminent domain” as it was
defective.  Accordingly, Dyer argued he could sue the County under PRPRPA and
he argued he did so in a timely basis by asserting a counterclaim within 180
days of April 1, 2007, and then amending the counterclaim (after 180 days had
expired) to allege a PRPRPA claim against the County.[8] 
              
C.  
 Dyer’s Claims Under Texas Constitution and
Declaratory-Judgment Action
              The Department and the County do not
dispute the trial court’s assertion of subject-matter jurisdiction over Dyer’s
inverse-condemnation claim brought pursuant to article I, section 17 of the
Texas Constitution.  See Tex.
Const. art. I, § 17.  But the Department and the County argue the trial
court lacked subject-matter jurisdiction over Dyer’s claims against them under
article I, section 19 of the Texas Constitution because it is an unauthorized
claim for money damages.  Id. art. I, § 19.   
              There is no cause of action for money
damages against the State or a political subdivision of the State under article
I, section 19 of the Texas Constitution.  See id.; Smith
v. City of League City, 338 S.W.3d 114, 127 (Tex. App.—Houston
[14th Dist.] 2011, no pet.) (citing City of Beaumont v. Bouillion, 896
S.W.2d 143, 149 (Tex. 1995)).  In his petition, Dyer alleges the
Department and the County violated his rights under section 19 by taking his
land without notice and an opportunity to be heard.  Dyer prays for money damages,
but does not seek any injunctive relief under article I, section 19.  
              On appeal, Dyer argues he is not only seeking
money damages, but is also seeking a declaratory judgment that his rights under
section 19 were violated.  In his petition, Dyer also seeks a declaratory
judgment that he is entitled to relief on all of his other causes of action
alleged against the Department and the County.  Dyer also seeks attorney’s fees
for prevailing in the declaratory-judgment action.  But a private party cannot
circumvent sovereign immunity from suit by characterizing a suit for money
damages as a declaratory-judgment claim.  City of Houston v. Williams,
216 S.W.3d 827, 828–29 (Tex. 2007); Tex. Dep’t of Transp. v. Crockett,
257 S.W.3d 412, 417 (Tex. App.—Corpus Christi 2008, pet. denied).  Where the
Legislature has not consented to a declaratory-judgment action against the
State or its political subdivision, there can obviously be no award of attorney’s
fees for prevailing in the incognizable declaratory-judgment action.  Compare
Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (concluding “that
by authorizing declaratory judgment actions to construe the legislative
enactments of governmental entities and authorizing awards of attorney fees,
the [Declaratory Judgment Act] necessarily waives governmental immunity for
such awards”), with Hagemand/Fritz, Byrne, Head & Harrison,
L.L.P. v. Luth, 150 S.W.3d 617, 727 (Tex. App.—Austin 2004, no pet.)
(holding attorney fees in declaratory-judgment action are improper when the
declaratory judgment sought is no different than the relief sought by other
causes of action in the same suit).   
              Here, the only alleged
injury Dyer complains of has already occurred, leaving him with only one
possible remedy—an award of money damages.  See City of Houston, 216
S.W.3d at 829.  Accordingly, the trial court lacked subject-matter
jurisdiction over the declaratory-judgment action and the claim under article
I, section 19 of the Texas Constitution.  See Smith, 338
S.W.3d at 127; City of Houston, 216 S.W.3d at 829.  We
sustain the Department and County’s first and fifth sub-issues on appeal.  In
light of our disposition of the County’s fifth sub-issue, we
need not reach the County’s argument on appeal that Dyer failed to plead a
basis for waiver of immunity for his article 1, section 19 claim.
D.  
Dyer’s Claims Under Title 42, Section 1983 of the United
States Code
            The Department argues the trial court lacks
subject-matter jurisdiction over Dyer’s section 1983 claim because the
Department is not a “person” under section 1983.  The County argues a section
1983 claim against it is not ripe because Dyer has not exhausted the remedies
the State of Texas provides, in particular his inverse-condemnation suit.  
i.      The
Department’s Section 1983 Argument
            Section 1983 provides: 
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
 
42
U.S.C. § 1983.
            The Eleventh Amendment to the United States
Constitution protects the State of Texas from suit in its own courts for an
alleged violation of federal law.  See U.S.
Const. amend. XI; Will v. Michigan Dep’t of State Police, 491
U.S. 58, 66 (1989).  A state’s eleventh-amendment immunity is not waived for a
civil-rights claim based on section 1983.  Will, 491 U.S. at 66–67. 
While the scope of the Eleventh Amendment and section 1983 are separate issues,
the Supreme Court has held that neither the state nor a state official acting
in his official capacity is a “person” for purposes of section 1983, and
therefore a citizen cannot sue the State pursuant to section 1983.  Id. at
66, 71.  As a result, the trial court lacked subject-matter jurisdiction
over Dyer’s section 1983 claim against the Department.  See id.; see
also Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001)
(holding suit against highway patrolman in his official capacity was really a
suit against the Texas Department of Public Safety which is not a “person”
under section 1983); Jones v. Texas Dep’t of Trans., 318 S.W.3d 398, 403
(Tex. App.—Waco 2010, pet. denied) (holding Texas Department of Criminal
Justice and its employees acting in their official capacity are not “persons”
under section 1983).  Because attorney’s fees for a section 1983
action are only recoverable by a prevailing party and Dyer cannot
prevail on his 1983 claim against the Department, the trial court lacked
jurisdiction over Dyer’s claim for attorney’s fees in conjunction with his 1983
claim.  See 42 U.S.C. § 1988.  We sustain the Department’s
second sub-issue on appeal.
ii.       
The County’s Section 1983 Argument
            Ripeness is a component of subject-matter jurisdiction. 
Ripeness cannot be waived and may be raised for the first time on appeal.  See
Waco Ind. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (addressing
ripeness in school district’s interlocutory appeal even though trial court did
not rule on ripeness).  Assuming, for the sake of argument only,[9]
that Dyer’s 1983 claim against the County is premised on an alleged violation
of the “just compensation clause” of the Fifth Amendment to the United States
Constitution, we agree with the County that Dyer’s 1983 claim against the
County is not ripe because Dyer’s inverse-condemnation claim against the County
has not yet been resolved.
            The Fifth Amendment to the United States
Constitution prohibits the taking of private property for public use without
just compensation, but it does not require payment before the taking occurs.  See
U.S. Const. amend. V; Town
of Flower Mound v. Stafford Estates, L.P., 135 S.W.3d 620, 645 (Tex. 2004). 
A violation of the Just Compensation Clause may be brought under section 1983. 
See Town of Flower Mound, 135 S.W.3d at 645–46.  But if there is an
adequate state-law remedy to compensate for the taking of property, a federal
claim under the Just Compensation Clause is premature until the aggrieved party
has used the state remedy and been denied just compensation.  Williamson County
Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–95
(1985).  
            An inverse-condemnation action under article
1, section 17 of the Texas Constitution is an adequate state remedy for seeking
just compensation for a taking.  See id. at 196 (holding federal
just-compensation claim was premature when property owner had not yet used
Tennessee’s inverse-condemnation statute to obtain relief); Town of Flower
Mound, 135 S.W.3d at 646 (holding inverse-condemnation claim under article
1, section 17 of Texas Constitution provided just compensation for taking and
therefore precluded federal just-compensation claim using section 1983); see
also Severance v. Patterson, 566 F.3d 490, 496–500 (5th Cir. 2009) (holding
federal takings claim unripe under Williamson County because owner had
not yet used Texas state remedies to challenge physical takings); Guetersloh
v. State, 930 S.W.2d 284, 287–88 (Tex. App.—Austin 1996, writ denied) (discussing
possibility of bringing state and contingent federal claims for just
compensation in a single lawsuit as to avoid risk of forfeiting federal claim
by claim preclusion).  Accordingly, Dyer’s 1983 claim is not yet ripe for
review in the trial court because he has not been denied just compensation in
his inverse-condemnation suit against the County under article 1, section 17 of
the Texas Constitution.  Because attorney’s fees for a section 1983
action are only recoverable by a prevailing party and Dyer cannot
prevail on an unripe 1983 claim, the trial court lacked jurisdiction over
Dyer’s claim for attorney fees in conjunction with his 1983 claim.  See 42
U.S.C. § 1988.  We sustain the County’s
second sub-issue.
E.  
 Dyer’s Attorney’s-Fees Claims
            As set forth above, Dyer’s claims for
attorney’s fees under section 1983, PRPRPA, and his declaratory-judgment action
fail for lack of subject-matter jurisdiction.  In his petition, Dyer also seeks
attorney’s fees generally under the laws of Texas and the United States. 
Because the only claim over which the trial court had subject-matter
jurisdiction is Dyer’s inverse-condemnation claim and attorney’s fees are not
recoverable for an inverse-condemnation claim, the trial court lacks
subject-matter jurisdiction over Dyer’s claims for attorney’s fees.  See State v. Biggar, 848
S.W.2d 291, 298 (Tex. App.—Austin 1993), aff’d, 873 S.W.2d 11 (Tex. 1994)
(holding attorney’s fees are not available for prevailing on
inverse-condemnation claim).  We sustain the Department and the
County’s sixth sub-issue.
V.  
CONCLUSION
            Having sustained the Department and County’s
respective issues, including all sub-issues, we conclude the trial court lacked
subject matter jurisdiction over all of Dyer’s claims challenged on appeal.  We
reverse the trial court’s respective orders denying the Department and the
County’s pleas to the jurisdiction and render judgment dismissing all of Dyer’s
claims with prejudice,[10]
except for Dyer’s inverse-condemnation claims, which are not challenged on
appeal.         
 
                                                                                         ______________________
                                                                                         Gregory
T. Perkes
                                                                                         Justice
 
Delivered and filed the

31st day of August,
2011.
 




[1]  This court has jurisdiction to hear
interlocutory appeals from orders denying a plea to the jurisdiction filed by a
governmental unit.  See Tex. Civ.
Prac. & Rem. Code §51.014(a)(5), (8) (West 2008); see also Texas
A&M Univ Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007); Hidalgo
County v. Gonzalez, 128 S.W.3d 788, 791 (Tex. App.—Corpus Christi 2004, no
pet.).
 


[2]  The County’s condemnation action was
cause number CCD-1484-E in the County Court at Law Number Five, Hidalgo County,
Texas.
 


[3]  By agreement, the County was
responsible for initiating and implementing condemnation proceedings for
acquisition of Dyer’s property, and the Department was to reimburse the County
for the cost of acquiring the right-of-way.
 


[4]  Dyer also alleged other deficiencies
pertaining to the Special Commissioners’ Hearing, but they are immaterial to
the issues in these appeals. 
 


[5]  The severed counterclaims were
assigned cause number CCD-1484-E-1 in the County Court at Law Number Five, Hidalgo
County, Texas.  In November 2008, the trial court granted a motion to transfer
Dyer’s severed counterclaims from the county court to the trial court and to
consolidate them with Dyer’s suit against the Department and the County in the
trial court.


[6]  All subsequent references to Dyer’s
“petition” in this opinion are to Dyer’s Second Amended Petition as it was his
live pleading when the trial court ruled on the pleas to the jurisdiction. 


[7]  In its appellate briefing, the
County includes its sub-issue challenging Dyer’s claims for attorney fees with
sub-issue five, in which it challenges the trial court’s subject-matter
jurisdiction over Dyer’s declaratory-judgment action.  For purposes of this
opinion, we treat the County’s challenge to Dyer’s claim for attorney fees as a
sixth sub-issue.  


[8]  Dyer first raised his tolling
argument at the special-appearance hearing and afterward made the tolling
argument in a brief filed in support of Dyer’s response to the Department’s
plea to the jurisdiction.


[9]  On appeal, the County argues Dyer’s
pleading is too conclusory to allege a 1983 claim against it because as the
County reads his petition, Dyer has not clearly identified the federal right
the County has allegedly violated.  See City of Dallas v. Saucedo-Falls,
268 S.W.3d 653, 659 (Tex. App.—Dallas 2008, pet. denied) (explaining section
1983 does not create substantive rights, but provides a remedy for violation of
a federal right created elsewhere).  Under the facts of this case, it is not
necessary to the disposition of this case for this Court to reach the merits of
this contention.  See Tex. R.
App. P. 47.1. 
   


[10]  See Harris County, 136 S.W.3d
at 639 (holding dismissal should be with prejudice when plaintiff has been
afforded reasonable opportunity to amend its pleading after governmental entity
filed plea to the jurisdiction and plaintiff still does not allege facts that
would constitute a waiver of immunity). 


