                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-13-00323-CV


MOSTAFA ARAM AZADPOUR                                                   APPELLANT

                                          V.

CITY OF GRAPEVINE, BRUNO                                                APPELLEES
RICHARD RUMBELOW, GENE
TIGNOR, AND DOES 1-49


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          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      In three issues, Appellant Mostafa Aram Azadpour, who appeared pro se

in the trial court and appears pro se on appeal, appeals from the trial court order

granting the plea to the jurisdiction filed by Appellees City of Grapevine (the City),


      1
       See Tex. R. App. P. 47.4.
Bruno Richard Rumbelow, Gene Tignor, and Does 1-49. We will affirm in part

and reverse and remand in part.

                                  II. BACKGROUND

      Azadpour filed suit against Appellees in the 236th District Court of Tarrant

County after the City cited and fined Azadpour for violating a city ordinance

concerning the height of grass or weeds growing on property in a residential

neighborhood in the City. The City’s Ordinance 12-111 (the Ordinance) provides

that a property owner who fails to cut or remove grass or weeds taller than six

inches within ten days after receiving notification from the City that the property is

in violation of the Ordinance must pay the cost incurred by the City to abate the

Ordinance violation. Grapevine, Tex., Code of Ordinances ch. 12, art. VI, § 12-

111 (1979). The City’s Code of Ordinances also provides that a person who

violates the Ordinance is guilty of a misdemeanor and can be fined up to $2,000

in addition to the cost of abatement. Id. § 12-98 (1979). Azadpour’s pleadings

alleged that he found a paper notice, indicating that he had violated the

Ordinance, taped to the glass next to the main entrance to his house. The City

assessed a $2,000 fine against Azadpour for violating the Ordinance; the fine

was later reduced to $500.

      Azadpour’s suit against the City, Rumbelow (individually and in his official

capacity as City Manager and Officer for Public Information Act for the City),

Tignor (individually and in his official capacity as a code enforcement official for



                                          2
the City),2 and Does 1-49 (who represent members of the City government)3

sought the following relief:

             29. Pursuant to a bench-trial, Plaintiff seeks a temporary
      injunction issued against Defendant-Rumbelow to enjoin him and all
      those within the City Government for the City of Grapevine over
      whom Defendant-Rumbelow has authority to enforce the said City
      Ordinance 12-111 against the Plaintiff till such time [as] the Court
      has determined whether or not the said City Ordinance 12-111 is
      vague or not and what correction(s), if any, is needed to rectify the
      said City Ordinance 12-111.

            30. Plaintiff seeks a declaratory judgment stating the said City
      Ordinance 12-111 is vague.

            31. Upon the issuance of the declaratory judgment[,] Plaintiff
      seeks the Court, within a time-line and procedure the Court may find
      appropriate and applicable, to issue a writ of mandamus directing
      the Defendant-Rumbelow (as the City Manager) to correct
      ambiguities in the said City Ordinance of 12-111 and to draw an
      amendment to the said Ordinance of 12-111 and to present such an
      amendment to the City Council for the City of Grapevine for voting
      and adoption.

            32. Plaintiff seeks a permanent injunction against Defendant
      Gene Tignor prohibiting his entrance into my property when he does
      not have my written consent to do so, or, otherwise he has a legal
      authority to do so.

            33. Plaintiff seeks a writ of mandamus directing the Officer for
      Public Information Act for the City of Grapevine, Defendant Bruno
      Richard Rumbelow, to make available to Plaintiff [the] whole and
      unredacted record responsive to Plaintiff’s record request dated
      June 28, 2013[,] which was received by the said Officer on-or-about
      July 01, 2013.

      2
       Tignor’s handwritten name was at the bottom of the notice that Azadpour
received regarding his violation of the Ordinance.
      3
       Azadpour does not challenge on appeal the trial court’s granting of
Appellees’ plea to the jurisdiction as to Does 1–49.

                                        3
      Appellees filed a plea to the jurisdiction and general denial. Azadpour

responded to Appellees’ plea to the jurisdiction, arguing that the City had waived

immunity because he is not claiming monetary damages. After a hearing, which

was not recorded, the Honorable Judge Dixon W. Holman (Senior Justice,

Retired; substitute judge sitting by assignment) granted Appellees’ plea to the

jurisdiction and dismissed Appellees from the case with prejudice to refiling suit

against them. Azadpour perfected this appeal and raises three issues.

                             III. STANDARD OF REVIEW

      A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action based on lack of subject-matter jurisdiction without regard to

the merits of the claim. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). The plaintiff bears the burden of alleging facts affirmatively showing

that the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction

challenges the pleadings, we determine if the pleader alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the case. City of El Paso

v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). When reviewing a trial court’s

order dismissing a case for lack of jurisdiction, we liberally construe the plaintiff’s

pleadings in favor of jurisdiction, and we look to the pleader’s intent. State v.

Holland, 221 S.W.3d 639, 643 (Tex. 2007).




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     IV. TRIAL COURT DID NOT ERR BY GRANTING APPELLEES’ PLEA TO THE
   JURISDICTION AS TO THE CITY ON AZADPOUR’S REQUEST FOR A DECLARATORY
                                  JUDGMENT

      In his first issue, Azadpour argues that the trial court erred by granting

Appellees’ plea to the jurisdiction on his declaratory judgment claim. Azadpour

argues that if he did not plead sufficient jurisdictional facts, he should be allowed

the opportunity to amend his pleadings.

      The law is well-settled that generally a court exercising equitable

jurisdiction in a suit (as opposed to criminal jurisdiction) has no jurisdiction to

render naked declarations of rights, status, or other legal relationships arising

under a penal statute or ordinance. See, e.g., State v. Morales, 869 S.W.2d 941,

945 (Tex. 1994) (holding that trial court exercising equitable jurisdiction in civil

declaratory judgment action did not have jurisdiction to declare penal code

section unconstitutional); City of La Marque v. Braskey, 216 S.W.3d 861, 863

(Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that trial court

exercising equitable jurisdiction in civil declaratory judgment action did not have

jurisdiction to declare penal ordinance inapplicable to plaintiff or enjoin its

enforcement); Wild Rose Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211,

218 (Tex. App.—Tyler 2012, no pet.) (holding that trial court exercising equitable

jurisdiction in civil declaratory judgment action did not have jurisdiction to declare

ordinance unconstitutional). An exception to this general rule exists if the plaintiff

establishes both that the penal statute or ordinance (1) is unconstitutional and (2)

threatens irreparable injury to property rights. Morales, 869 S.W.2d at 942. If a

                                          5
party fails to satisfy both of these prongs, then a court acting in equity lacks

jurisdiction over the cause. See Passel v. Fort Worth Indep. Sch. Dist., 440

S.W.2d 61, 63 (Tex. 1969); Braskey, 216 S.W.3d at 863 (holding that because

Braskey failed to establish that the ordinance threatened irreparable injury to

property rights, the trial court acting in equity lacked jurisdiction, and the

appellate court need not address the first prong).       That is, if questions of

constitutionality of a penal statute or of a penal ordinance can be resolved in a

criminal proceeding and if vested property rights are not in jeopardy, then a court

of equity should not intervene. Braskey, 216 S.W.3d at 863.

      Turning to the issue of whether the Ordinance is penal, the test is whether

the wrong sought to be redressed by the Ordinance is a wrong to the public or a

wrong to the individual. See Huntington v. Attrill, 146 U.S. 657, 668, 13 S. Ct.

224, 228 (1892). Public wrongs are a breach and violation of public rights and

duties, which affect the whole community, considered as a community, and are

distinguished by the harsher appellation of “crimes and misdemeanors.” Id. at

668–69, 13 S. Ct. at 228; see also Trop v. Dulles, 356 U.S. 86, 96, 78 S. Ct. 590,

595 (1958) (“In deciding whether or not a law is penal, this Court has generally

based its determination upon the purpose of the statute. If the statute imposes a

disability for the purposes of punishment—that is, to reprimand the wrongdoer, to

deter others, etc., it has been considered penal.”).        The purpose of the

Ordinance—which is set forth in the City’s Code of Ordinances in “Chapter 12 –

Health and Sanitation,” “Article VI – Nuisances,” and “Division 2. – Cleanliness

                                        6
and Sanitation of Premises”—is to protect the health, safety, and welfare of the

community from the problems that arise from an overgrowth of grass and weeds.

See Grapevine, Tex., Code of Ordinances ch. 12, art. VI, § 12-92 (1979)

(defining a nuisance as “[w]hatever is dangerous to human life or health;

whatever renders the ground, the water, the air, or any food or drink

unwholesome or a hazard to human life and health”).         Thus, the Ordinance

addresses a wrong to the public at large, which could adversely impact the

health, safety, and welfare of the entire community.      Also, in addition to the

Ordinance’s provisions authorizing citations and a statement of costs equal to the

cost the City incurs to abate the violation, the City’s Code of Ordinances provides

that a person who violates the Ordinance is guilty of a misdemeanor and can be

fined up to $2,000 in addition to the cost of abatement. See id. § 12-98. The

Ordinance is penal. See Holford v. City of Houston, No. 01-97-00296-CV, 1998

WL 177349, at *1 (Tex. App.—Houston [1st Dist.] Apr. 16, 1998, pet. denied) (op.

on reh’g, not designated for publication) (describing Houston’s high-grass

ordinance as a penal ordinance because a violation was punishable by a fine of

$50 to $2,000); see also Mayer v. State, No. 05-07-00695-CR, 2007 WL

4112035, at *1–4 (Tex. App.—Dallas Nov. 20, 2007, no pet.) (mem. op., not

designated for publication) (following his citation for violating Grand Prairie’s

high-grass-and-weeds ordinance, appellant challenged the ordinance in his

criminal proceeding, arguing that his due process rights were violated by not

properly putting him on notice of a violation and by allowing arbitrary enforcement

                                        7
of an unconstitutionally vague ordinance); McDonald v. State, 693 S.W.2d 660,

660–62 (Tex. App.—Dallas 1985, no pet.) (following his conviction for violations

of McKinney’s high-grass-and-weeds ordinance, appellant challenged the

ordinance in his criminal proceeding as unconstitutional on the grounds that it

was vague and overbroad).

      Because the Ordinance is penal, the trial court––a court exercising

equitable jurisdiction in a civil suit filed by Azadpour against Appellees––

possesses no jurisdiction to render declarations of rights, status, or other legal

relationships arising under the Ordinance unless Azadpour established both that

the penal Ordinance (1) is unconstitutional and (2) threatens irreparable injury to

property rights. See Morales, 869 S.W.2d at 942. Azadpour’s pleadings do not

explain what vested property right of his was threatened with irreparable harm by

the Ordinance. Even broadly construing Azadpour’s pleadings to allege that he

somehow has a vested property right to grow grass on his property taller than six

inches, this allegation does not constitute a threat of irreparable injury to a vested

property right. See City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex.

1972), abrogated on other grounds by Bd. of Adjustment of City of San Antonio v.

Wende, 92 S.W.3d 424 (Tex. 2002) (explaining property owners do not have a

constitutionally-protected, vested right to use real property in any certain way

without restriction); Wild Rose Rescue Ranch, 373 S.W.3d at 217 (holding

ordinance’s restriction that would prohibit continued use of property as animal

shelter did not threaten irreparable injury to property rights because property

                                          8
owners do not acquire vested rights in particular use of property); Braskey, 216

S.W.3d at 864 (holding that ordinance’s restrictions on use of plaintiff’s property

as to cat shelter did not constitute threats to vested property rights).

      Because Azadpour has failed to plead facts that demonstrate how he

would suffer irreparable injury to vested property rights by virtue of the

Ordinance, the 236th District Court—exercising equitable jurisdiction in the civil

suit filed by Azadpour—lacks subject-matter jurisdiction to issue a declaration as

to the rights, status, or other legal relationships arising under the City’s penal

Ordinance. See, e.g., Morales, 869 S.W.2d at 942; Wild Rose Rescue Ranch,

373 S.W.3d at 218 (holding that plaintiff was not allowed to replead because its

pleadings negated any jurisdiction over declaratory judgment action challenging

constitutionality of ordinance where plaintiff did not show that ordinance was not

penal or that it would suffer irreparable injury to a vested property right). We hold

that the trial court did not err by granting Appellees’ plea to the jurisdiction as to

the City on Azadpour’s declaratory judgment action. See Wild Rose Rescue

Ranch, 373 S.W.3d at 218 (affirming trial court’s order granting plea to

jurisdiction on plaintiff’s request for declaratory judgment on penal ordinance);

Braskey, 216 S.W.3d at 864 (vacating trial court’s judgment and dismissing case

for want of jurisdiction because trial court did not have jurisdiction to hear lawsuit




                                          9
involving penal ordinance in absence of showing of irreparable injury to vested

property right). We overrule Azadpour’s first issue.4

V. TRIAL COURT ERRED BY GRANTING APPELLEES’ PLEA TO THE JURISDICTION AS TO
      TIGNOR ON AZADPOUR’S REQUEST FOR AN INJUNCTION AGAINST TIGNOR

      With regard to his claim for a permanent injunction against Tignor to

prevent him from trespassing on Azadpour’s property, Azadpour argues in his

second issue that the trial court erred by “accepting Defendants’ contention that

there is no private civil cause-of-action in the State of Texas for trespass to a

private property.” The trial court, however, did not reach the merits of any of

Azadpour’s claims because it decided the case on the Appellees’ plea to the

jurisdiction. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)

(“In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits

but must consider only the plaintiffs’ pleadings and the evidence pertinent to the

jurisdictional inquiry.”). Because the trial court granted Appellees’ plea to the

jurisdiction and dismissed all Appellees from the suit, including Tignor, we

broadly construe Azadpour’s argument as asserting that the trial court erred by

granting Appellees’ plea to the jurisdiction on Azadpour’s claim against Tignor.

See generally Tex. R. App. P. 38.9.


      4
        Azadpour does not challenge the trial court’s granting of Appellees’ plea
to the jurisdiction on his claims for (1) a temporary injunction against Rumbelow
to enjoin him and Does 1-49 from enforcing the Ordinance or (2) a writ of
mandamus directing Rumbelow to correct the Ordinance. Our disposition of
Azadpour’s claim for a declaratory judgment on the vagueness of the Ordinance
necessarily precludes Azadpour from repleading these two claims.

                                        10
      Immunity does not bar a suit for prospective injunctive relief against

government actors in their official capacity for violating the law. Heinrich, 284

S.W.3d at 373–77. The proper defendant in an ultra vires action—in which the

plaintiff’s complaint is that a state official has “trampled on the plaintiff’s rights”—

is the state official whose acts or omissions allegedly trampled on the plaintiff’s

rights, not the state agency itself. Id. at 372–73. 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. Id.

      Azadpour’s second amended petition reflects that he sued Tignor in his

individual and official capacities. Azadpour’s second amended petition alleges

that because the Ordinance provides that a property owner shall be notified of a

violation of the Ordinance by mail or may be notified by publication in the city’s

official newspaper, Tignor acted ultra vires by entering onto Azadpour’s property

and taping the notice on the glass next to Azadpour’s front door.            Azadpour

contends that the Ordinance does not authorize notice by entering the property

and taping papers near the door; consequently, Azadpour contends Tignor’s

entry onto the property was a trespass.        Because Azadpour sued Tignor in his

official capacity and alleged that Tignor acted ultra vires by entering Azadpour’s

property and by taping the notice near his front door, Azadpour’s claim for an

injunction prohibiting Tignor from entering Azadpour’s property falls within the

ultra vires exception to governmental immunity that allows a suit against a

                                          11
government actor in his official capacity. We therefore hold that the trial court

erred by granting Appellees’ plea to the jurisdiction on Azadpour’s claim for a

permanent injunction against Tignor. See id. at 377, 380 (holding that plaintiff

sued board members in their official capacities, and thus plaintiff’s claims for

prospective injunctive relief were not automatically barred by immunity); cf. Tex.

Dep’t. Transp. V. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (remanding to allow

plaintiff to replead to cure jurisdictional defect by adding a claim against TxDOT

officials for improperly denying his permit).5      We sustain Azadpour’s second

issue.

     VI. TRIAL COURT DID NOT ERR BY GRANTING APPELLEES’ PLEA TO THE
    JURISDICTION AS TO RUMBELOW ON AZADPOUR’S REQUEST FOR A WRIT OF
    MANDAMUS REQUIRING RUMBELOW TO MAKE PUBLIC RECORDS AVAILABLE

         In his third issue, with regard to his claim for a writ of mandamus directing

Rumbelow to make public records available to Azadpour, Azadpour argues that

the trial court “erred in accepting Defendants’ contention that a request for [a]

letter-ruling submitted by a governmental entity to the Texas Attorney General

deprives a court-of-competent jurisdiction to hear a private cause of action

brought pursuant to the Texas Public Information Act” (TPIA). [Ant’s Br. 4] We

broadly construe Azadpour’s argument as arguing that the trial court erred by

granting Appellees’ plea to the jurisdiction on his claim against Rumbelow. See

generally Tex. R. App. P. 38.9.

         5
        We express no opinion on the underlying merits of Azadpour’s trespass
claim; we hold only that it is not barred by immunity.

                                          12
      The TPIA provides that

      [a] requestor or the attorney general may file suit for a writ of
      mandamus compelling a governmental body to make information
      available for public inspection if the governmental body refuses to
      request an attorney general’s decision as provided by Subchapter G
      or refuses to supply public information that the attorney general has
      determined is public information that is not excepted from disclosure
      under Subchapter C.

Tex. Gov’t Code Ann. § 552.321(a) (West 2012). The Texas Supreme Court has

held that a suit for mandamus under section 552.321(a) should be brought

against the public information officer. A & T Consultants, Inc. v. Sharp, 904

S.W.2d 668, 681 (Tex. 1995) (orig. proceeding).

      Azadpour served a written request for public records on Rumbelow on or

about June 28, 2013. On or about July 5, 2013, Azadpour received records

responsive to his request; however, the name of the person who had complained

about Azadpour’s yard had been redacted, and other requested information was

not provided. Azadpour filed a complaint in the Open Records Division of the

Texas Attorney General’s Office, claiming that the redacted or withheld

information was not supported with references to any statute providing for the

redaction or withholding of such information. By letter dated July 16, 2013, the

City requested a letter ruling from the Attorney General on the withheld

information; the City copied Azadpour with this letter. Azadpour subsequently

filed his second amended petition, in which he added a claim against Rumbelow

requesting a writ of mandamus under the TPIA.        At that time, the City had

already requested the letter ruling from the Attorney General, and Azadpour’s

                                       13
brief concedes that Appellees brought this fact to the trial court’s attention during

the hearing on Appellees’ plea to the jurisdiction on August 22, 2013.

        Thus, because the City had already complied with the first portion of

section 552.321(a) by requesting a letter ruling from the Attorney General,

Azadpour’s request for a writ of mandamus under the first portion of section

552.321(a)—providing for a writ of mandamus compelling a governmental body

to make information available for public inspection if the governmental body

refuses to request an Attorney General’s decision—was moot at the time that the

trial court granted Appellees’ plea to the jurisdiction. And Azadpour did not plead

that the Attorney General had issued a letter ruling with which the City had not

complied; indeed, he could not because no letter ruling had been issued at that

time.

        We therefore hold that the trial court did not err by dismissing Azadpour’s

claim for a writ of mandamus against Rumbelow under the TPIA. See Tex. Gov’t

Code Ann. § 522.321(a). We overrule Azadpour’s third issue.

                                  VII. CONCLUSION

        Having overruled Azadpour’s first and third issues, we affirm the trial

court’s granting of Appellees’ plea to the jurisdiction to the extent that it dismisses

the City and Rumbelow from the suit.           Having sustained Azadpour’s second

issue, we reverse the trial court’s judgment and remand the case to the trial court

for further proceedings on Azadpour’s claim for an injunction prohibiting Tignor

from entering Azadpour’s property.

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                                         /s/ Sue Walker
                                         SUE WALKER
                                         JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: June 5, 2014




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