                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00171-CV


THE TOWN OF ANNETTA SOUTH,                        APPELLANTS/APPELLEES
TEXAS; GERHARD
KLEINSCHMIDT; JAMES
ABLOWICH; PHILLIP KUNTZ; AND
DAVID GOOLSBY

                                      V.

SEADRIFT DEVELOPMENT, L.P.                          APPELLEE/APPELLANT


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            FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                       TRIAL COURT NO. CV11-0220

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                                 OPINION1

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        1
        The undersigned became author of this majority opinion on August 12,
2014.
                                 I. INTRODUCTION

      The primary issue in this appeal is whether Appellant The Town of Annetta

South’s Ordinance 011—which requires that all lots within the Town’s

extraterritorial jurisdiction (ETJ) must be at least two acres in size—violates

Texas Local Government Code section 212.003(a)(4). See Tex. Loc. Gov’t Code

Ann. § 212.003(a) (West 2008); Annetta South, Tex., Ordinance 011 (Sept. 12,

1985). The trial court found that it did and granted a partial summary judgment

for Appellee Seadrift Development, L.P. specifically on this ground.       For the

reasons set forth below, we will affirm the trial court’s partial summary judgment

for Seadrift.

                   II. PROCEDURAL AND FACTUAL BACKGROUND

      Seadrift brought a declaratory judgment action and a request for

mandamus relief against the Town after the Town denied Seadrift’s preliminary

subdivision plat for an approximately 106-acre tract. A large portion of Seadrift’s

platted subdivision was located in the ninety-five acres of the Town’s ETJ. While

Seadrift’s proposed subdivision lots within the Town’s boundaries were two acres

in size, the lots in the Town’s ETJ were not.

      At the time of Seadrift’s plat application, the only Town ordinance

provisions addressing density in the Town’s ETJ were located in Town Ordinance

011. Ordinance 011 contains a provision requiring that all lots in the Town’s ETJ

be at least two acres in size. After the Town denied Seadrift’s subdivision plat,

Seadrift requested that the Town certify the reasons for the Town’s denial. See

                                         2
Tex. Loc. Gov’t Code Ann. § 212.009(e) (West 2008) (providing that a municipal

authority responsible for approving plats shall certify the reasons for the action

taken on a plat application upon request of the land owner).              The Town

responded, certifying that the reason for its denial of Seadrift’s plat was that “the

density of this development is excessive.”         After receiving this certification,

Seadrift filed suit against the Town seeking a declaratory judgment that

Ordinance 011’s provision requiring that all lots within the Town’s ETJ must be at

least two acres in size violates Texas Local Government Code section

212.003(a)(4). See id. § 212.003(a)(4). Seadrift also sought a writ of mandamus

to compel the Town to engage in the ministerial act of approving the subdivision

plat.

        The parties filed competing motions for summary judgment on the issue of

whether the provision in the Town’s Ordinance 011 that required all lots in the

Town’s ETJ to be at least two acres in size violated Texas Local Government

Code section 212.003(a)(4). See id. The trial court granted Seadrift’s motion for

partial summary judgment on its declaratory judgment claim but denied all other

relief, including Seadrift’s request for a mandamus, and denied the Town’s

motion for summary judgment. The Town perfected this appeal, raising three

issues.

        Seadrift filed a cross-appeal in this court, asserting that not only should we

affirm the trial court’s partial summary judgment for Seadrift on its declaratory

judgment claim but also that we should reverse and render judgment for Seadrift

                                           3
on its request for mandamus relief because the Town possessed a ministerial

duty to approve Seadrift’s preliminary plat.

                            III. STANDARDS OF REVIEW

                           A. Statutory Construction

      Courts use the same rules to construe statutes and to construe municipal

ordinances. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424,

430 (Tex. 2002). Thus, our objective in construing the Town’s Ordinance 011 is

to discern the Town’s intent, and our objective in construing local government

code section 212.003(a) is to discern the legislature’s intent.   See id. (citing

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.

1999)). In making this determination, we look first to the plain meaning of the

words of the provisions, using any definitions provided. Tex. Mut. Ins. Co. v.

Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). In giving effect to the statute or

ordinance as a whole, we should not assign a meaning to a provision that would

be inconsistent with other provisions of the statute or ordinance. See Wende, 92

S.W.3d at 430.

      Statutes and ordinances in derogation of the common law are strictly

construed. Tex. Co. v. Grant, 182 S.W.2d 996, 1000 (Tex. 1944); accord 3

Sutherland Statutes and Statutory Construction § 61:1 (7th ed.) (“Statutes in

derogation of a property owner’s right at common law to build what she pleases

upon her own property must be strictly construed in favor of the owner.”).

Because a municipality possesses authority to regulate land development in its

                                         4
ETJ only to the extent it is legislatively granted that authority, legislatively-created

express limitations to that grant of authority—such as local government code

section 212.003—are construed strictly against the authority of the municipality

and in favor of the land owner. See Tex. Loc. Gov’t Code Ann. § 212.003; 3

Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative

grant of authority must be construed, whenever possible, so that it is no broader

than that which the separation of powers permits.”).

         When reviewing the validity of a city ordinance, we begin with the

presumption that the ordinance is valid. City of Brookside Village v. Comeau,

633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087 (1982); RCI Entm’t, Inc.

v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App.—San Antonio 2012, no

pet.).    The party challenging the ordinance bears the burden to establish its

invalidity.   RCI Entm’t, 373 S.W.3d at 595.          An ordinance that attempts to

regulate a subject matter preempted by a state statute is unenforceable to the

extent it conflicts with a state statute.       Dallas Merchant’s & Concessionaire’s

Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993).

                              B. Summary Judgment

         We review a trial court’s summary judgment de novo. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004); City of San Antonio v.

En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex. App.—San Antonio 2007, no pet.).

When reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant, and we indulge every reasonable inference and resolve any

                                            5
doubts in the nonmovant’s favor. Joe, 145 S.W.3d at 156–57; En Seguido, 227

S.W.3d at 240. The party moving for a “traditional” summary judgment bears the

burden to show that no genuine issue of material fact exists and that it is entitled

to judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En Seguido, 227

S.W.3d at 240; Tex. R. Civ. P. 166a(c).

IV. THE TOWN’S FIRST ISSUE: DOES ORDINANCE 011 VIOLATE LOCAL GOVERNMENT
                          CODE SECTION 212.003?

      In its first issue, the Town contends that Ordinance 011’s two-acre-

minimum-lot-size subdivision rule is not equivalent to a restriction on the number

of residential units that can be built per acre as prohibited by Texas Local

Government Code section 212.003(a)(4). Accordingly, the Town argues that the

trial court erred by granting partial summary judgment for Seadrift on this basis.

    A. The Town’s Powers to Regulate in Its Extraterritorial Jurisdiction

      A city’s authority to regulate land development in its ETJ is wholly derived

from a legislative grant of authority. FM Props. Operating Co. v. City of Austin,

22 S.W.3d 868, 902 (Tex. 2000); accord Ex parte Ernest, 136 S.W.2d 595, 597

(Tex. Crim. App. 1939) (“As a general rule a municipal corporation’s powers

cease at municipal boundaries and cannot, without plain manifestation of

legislative intention, be exercised beyond its limits.”). If no municipal ordinances

are legislatively authorized to be extended to a municipality’s ETJ, then only

county land-use regulations apply. FM Props. Operating Co., 22 S.W.3d at 876,

902. A city is authorized to apply municipal ordinances “governing plats and


                                          6
subdivisions of land . . . to promote the health, safety, morals, or general welfare

of the municipality and the safe, orderly, and healthful development of the

municipality” to property within its ETJ.       See Tex. Loc. Gov’t Code Ann.

§§ 212.002, .003 (West 2008). The municipality is also authorized to apply in its

ETJ other city ordinances relating to access to public roads or the pumping,

extraction, and use of groundwater by persons other than retail public utilities. Id.

§ 212.003(a). But, unless otherwise authorized by state law, a municipality “shall

not regulate” the following within the municipality’s ETJ:

            (1) the use of any building or property for business, industrial,
      residential, or other purposes;

             (2) the bulk, height, or number of buildings constructed on a
      particular tract of land;

             (3) the size of a building that can be constructed on a
      particular tract of land;

             (4) the number of residential units that can be built per acre of
      land; or

             (5) the size, type, or method of construction of a water or
      wastewater facility that can be constructed to serve a developed
      tract of land if [certain other facts apply].

Id. § 212.003(a)(1)–(5). The purpose of these restrictions on a municipality’s

authority to impose regulations on land in the municipality’s ETJ is to prohibit the

municipality’s extension of zoning ordinances into its ETJ under the guise of

cleverly drafted rules “governing plats and subdivision of land.”           See id.




                                         7
§ 212.002; Quick v. City of Austin, 7 S.W.3d 109, 121 (Tex. 1998) (noting section

212.003 prohibits the application of zoning regulations in ETJ areas).2

    B. Statutory Construction Analysis Establishes That Ordinance 011
       Violates Texas Local Government Code Section 212.003(a)(4)

       In its first issue, the Town argues:

              A minimum lot size only regulates how small a resulting lot
       can be. It does not expressly mandate the number of residential
       units that can be built on the resulting lots and thus, does not
       regulate how many residential units can be placed on an acre of
       land. A resulting two-acre lot can logically be the site for one or
       multiple duplexes, triplexes or apartment buildings and thus, can
       contain one, twenty, or more residential units. The same is true of a
       0.2-acre lot. The restriction in the Annetta South’s ordinance is on
       the size of lots, not number of residences per acre.

             ....

              . . . In this case, lot size could have some impact [on] the
       resulting number of residential units per acre, but that is not the
       specific characteristic that the law proscribes.

                              1. Ordinance 011

       Turning to the language of the ordinance at issue, Ordinance 011 defines a

“lot” as


       2
        The Town cites the legislative history of section 212.003, compares
section 212.003 to the zoning powers granted in chapter 211 of the local
government code, and argues that the section 212.003 language relied upon by
Seadrift to challenge Ordinance 011’s lot-size restriction was only intended to
prevent zoning regulations from being applied in the ETJ. But in construing a
statute, we look to the plain meaning of the words chosen by the legislature and
do not consider extrinsic aids unless the statute is ambiguous. Combs v. Roark
Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013). As set forth
below, giving the words of section 212.003(a)(4) their plain meaning, the statute
is not ambiguous; thus, we do not consider extrinsic aids.

                                              8
             [a]n undivided tract or parcel of land, no less than two (2)
      acres, having frontage on a public street and which is, or in the
      future may be offered for sale, conveyance, transfer or improvement;
      which is designated as a distinct and separate tract, and which is
      identified by a tract or lot number or symbol in a duly approved
      subdivision plat which has been properly filed.

Annetta South, Tex., Ordinance 011 (emphasis added).             Based on the plain

meaning of the above language of Ordinance 011, it is undisputed that it

mandates that lots within the Town’s ETJ must be at least two acres in size.

      We are required to give the words used in Ordinance 011 their defined

meaning, if one exists.     See, e.g., Tex. Mut. Ins. Co., 381 S.W.3d at 452.

“Subdivision” is defined in Ordinance 011 as “[t]he division of any tract of land

[situated within the Town or its ETJ] into two or more parts for the purpose of . . .

laying out suburban lots or building lots, or any lots . . . intended for public use or

the use of purchasers.” Annetta South, Tex., Ordinance 011. Thus, if the owner

of a two-acre lot in the Town’s ETJ wants to divide his lot into two or more parts

to sell a part of it, the lot is a tract of land located in the Town’s ETJ that meets

the ordinance’s definition of “subdivision” because the division of the tract of land

is for the purpose of laying out lots offered for sale and is intended for the use of

purchasers. Approval of any re-subdivision of a two-acre lot, however, would not

be granted due to Ordinance 011’s two-acre minimum lot size.3              Therefore,


      3
       The Town’s summary judgment response asserts that Seadrift “seems to
want the court to ignore the fact that the [Town] has adopted a new ordinance
which is [in] evidence and which would be available to such resubdividers which
does not require two[-]acre minimums.” But the new ordinance referenced by the
Town does continue to require two-acre lots; it simply provides that variances
                                          9
applying the definitions of “lot” and “subdivision” that are provided in Ordinance

011, it is undisputed that Ordinance 011 prohibits the owner of a two-acre lot in

the Town’s ETJ from dividing the two-acre lot into a less than two-acre parcel of

land and selling it. Accord City of Weslaco v. Carpenter, 694 S.W.2d 601, 602–

04 (Tex. App.––Corpus Christi 1985, writ ref’d n.r.e.) (construing this same

definition of “subdivision” as used in City of Weslaco’s ordinance addressing

minimum standards—other than lot size—and licensing requirements for mobile

home and/or recreational vehicle parks in city’s ETJ). Through this circuitous

definitional loop created by Ordinance 011—definitions that we are required to

apply in construing the ordinance—although multiple duplexes, triplexes, and

apartment complexes may technically be built on a single two-acre lot in the

Town’s ETJ, they can never be individually sold. The result is that the entirety of

each two-acre lot is required to share common ownership; under Ordinance 011,

parcels of land on which duplexes, triplexes, or apartment complexes are built

within a two-acre lot are incapable of ownership different than the ownership of

the entire two-acre lot.

                            2. Section 212.003(a)(4)

      The next issue is whether the regulation imposed in the Town’s ETJ by the

circuitous definitional loop contained in Ordinance 011 violates section


may be sought—but not necessarily granted—from such minimums. And the
existence of a new ordinance does not alter an analysis of whether Ordinance
011 violates local government code section 212.003(a)(4).

                                        10
212.003(a)(4).     See Tex. Loc. Gov’t Code Ann. § 212.003(a)(4) (“[I]n its

extraterritorial jurisdiction a municipality shall not regulate . . . (4) the number of

residential units that can be built per acre of land.”). Again, we must give the

language of section 212.003 its plain meaning; we discern the intent of the

legislature by the plain meaning of the words it chose to use. See Tex. Mut. Ins.

Co., 381 S.W.3d at 452. In section 212.003(a)(4), the legislature chose to use

the mandatory words “shall not regulate,” expressly limiting the grant of authority

given to municipalities to extend rules governing plats and subdivisions into its

ETJ. The plain meaning of “shall not” imposes a prohibition. See Tex. Gov’t

Code Ann. § 311.016(5) (West 2013); accord Fuentes v. Howard, 423 S.W.2d

420, 423 (Tex. Civ. App.––El Paso 1967, writ dism’d) (construing “shall not” in a

statute as mandatory, however innocent the violation of the statute).             And

although “regulate” is not defined in the statute, its most common dictionary

meaning is “to control or supervise by means of rules and regulations.” See

Oxford                   Dictionaries,                   available                   at

http://www.oxforddictionaries.com/us/definition/american_english/regulate?q=reg

ulate; see also Webster’s Third New International Dictionary 1913 (2002)

(defining “regulate” as “to govern or direct according to rule”).        Thus, giving

section 212.003(a)(4) its plain meaning, the legislature intended to impose a

mandatory duty on municipalities to refrain from controlling or directing in a

municipality’s ETJ—whether explicitly or implicitly—the number of residential

units built per acre.

                                          11
               3. Ordinance 011 Violates Section 212.003(a)(4)

      The Town essentially concedes that Ordinance 011’s two-acre lot size

requirement could have some impact on the resulting number of residential units

per acre. But the Town claims that the number of residential units that can be

built per acre is not the specific characteristic that Ordinance 011 proscribes.

Contrary to the plain meaning of “regulate” as used in section 212.003(a)(4), the

Town gives an overly narrow meaning to the word, equating “regulate” with

“specifically proscribing.” Using the ordinary meaning of the term “regulate,” it is

clear that Ordinance 011 does control or “regulate” the number of residential

units that can be built per acre on land within the Town’s ETJ. See Tex. Att’y

Gen. Op. No. GA-0648 (2008) (“The Bulverde Ordinance provisions repeatedly

refer to density and also establish residential lot size limits. . . .    Thus, the

ordinance provisions appear on their face to be inconsistent with Local

Government Code section 212.003(a)(1)-(4).”).4

      Moreover, the summary-judgment evidence establishes that, by extending

Ordinance 011 into its ETJ, the Town in fact intended to regulate the number of

residential units built per acre in its ETJ. As Seadrift points out, there are 43,560


      4
       The Town’s reliance on Quick as justification for Ordinance 011 is
misplaced. See 7 S.W.3d at 121. Quick dealt with an ordinance involving water
control measures; section 212.003 expressly authorizes a municipality to extend
such ordinances to its ETJ. See id.; see also Tex. Loc. Gov’t Code Ann.
§ 212.003(a).

                                         12
square feet in an acre, and while the Town denied Seadrift’s preliminary plat that

would have provided for one home on each of eight 11,000-square-foot lots, the

Town claims that Seadrift’s preliminary plat would have complied with Ordinance

011 if only Seadrift would have platted eight homes on an 88,000-square-foot (a

little more than two acres) lot. Seadrift points out that both scenarios would

impose the same infrastructure and utility needs; eight homes on an 88,000-

square-foot lot (supposedly not prohibited by Ordinance 011) require the exact

same water, sewer, electricity, and gas infrastructure as eight homes all built on

eight 11,000-square-foot lots (prohibited by Ordinance 011).       Thus, Seadrift

contends that Ordinance 011 is and was intended to be exactly the type of

regulation prohibited by section 212.003(a)(4)—an implicit extension of the

Town’s zoning-density ordinances into its ETJ under the guise of cleverly drafted

rules governing plats and subdivision of land. See Tex. Loc. Gov’t Code Ann.

§ 212.002; Quick, 7 S.W.3d at 121 (noting that section 212.003 prohibits the

application of zoning regulations in ETJ areas); accord S. Crushed Concrete,

LLC v. City of Houston, 398 S.W.3d 676, 679 (Tex. 2013) (holding city ordinance

invalid because it conflicted with statutory provision).

        Finally, if any question remains that Ordinance 011 violates section

212.003(a)(4), we are required to construe section 212.003(a)(4) against the

authority of the Town to regulate within its ETJ both because section 212.003 is

an express limitation on the authority granted to municipalities to regulate within



                                          13
ETJs and because any regulation of land use5 is in derogation of the common

law. See Thomas v. Zoning Bd. of Adjustment, 241 S.W.2d 955, 957 (Tex. Civ.

App.—Eastland 1951, no writ); accord Bryan v. Darlington, 207 S.W.2d 681, 683

(Tex. Civ. App.––San Antonio 1947, writ ref’d n.r.e.) (“All restrictions of the free

use of land are in derogation of the common law right to use land for all lawful

purposes that go with the title and possession, and are to be construed strictly

against the person creating or attempting to enforce such restrictions.”); 3

Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative

grant of authority must be construed, whenever possible, so that it is no broader

than that which the separation of powers permits.”).

      Because Ordinance 011 violates section 212.003(a)(4), we overrule the

Town’s first issue.

    V. THE TOWN’S SECOND ISSUE: DOES THE SUMMARY-JUDGMENT EVIDENCE
     ESTABLISH THAT SEADRIFT’S PRELIMINARY PLAT WAS DENIED BASED ON A
       VIOLATION OF ORDINANCE 011’S TWO-ACRE LOT-SIZE REQUIREMENT




      5
       The Town claims that Ordinance 011’s two-acre restriction is not a
regulation of land use but only a regulation of lot size. This is a distinction
without a difference under the present facts. Seadrift wants to use its land
located in the Town’s ETJ by dividing it into less than two-acre tracts and by
building one single family residential unit on each lot; the Town relies on
Ordinance 011’s two-acre lot-size requirement to prohibit this use. Accord Ferris
v. City of Austin, 150 S.W.3d 514, 516 (Tex. App.––Austin 2004, no pet.)
(recognizing ordinance’s lot-size restriction was effectively a land-use restriction
because, although single-family residential unit could have been built on tract,
tract could not be subdivided into lots large enough to meet ordinance’s
condominium lot-size restriction, and owner wanted to build condominiums).

                                        14
      In its second issue, the Town argues that “there was no evidence or

conflicting evidence” that the reason for the Town’s denial of Seadrift’s

preliminary plat was because of the less than two-acre lot size of lots within

Town’s ETJ. The Town does not contend that it conclusively established any

specific alternative reason for its denial of Seadrift’s preliminary plat; the Town

merely argues that Seadrift failed to conclusively establish the two-acre lot-size

subdivision rule was the reason.

      In support of its motion for partial summary judgment, Seadrift attached

summary-judgment evidence that the Town voted to deny Seadrift’s preliminary

plat on November 18, 2010.         When Seadrift requested, per Texas Local

Government Code section 212.009(e), that the Town certify the basis for its

denial, the Town’s Mayor dictated a letter to Seadrift identifying the density of

Seadrift’s proposed development as the sole basis for the denial of Seadrift’s

preliminary plat. See Tex. Loc. Gov’t Code Ann. § 212.009(e). Several of the

Town’s city council members also testified to this fact in their depositions. And

an October 29, 2010 letter from the Town’s engineer to Seadrift’s engineer

indicated that the only way in which Seadrift’s preliminary plat did not comply with

Ordinance 011 was the plat’s lot size.

       Thus, although the Town urges on appeal that Seadrift’s plat failed to

conform with other requirements necessary for its approval—and this may or

may not be true—viewing the summary-judgment evidence in the light most

favorable to the Town, it conclusively establishes that the Town’s sole reason for

                                         15
the denial of Seadrift’s preliminary plat was “density”; that is, a violation of

Ordinance 011’s two-acre lot-size restriction.         The Town did not offer

controverting summary-judgment evidence in the trial court establishing that it

denied Seadrift’s preliminary plat for any other reason.

      We overrule the Town’s second issue.

                VI. THE TOWN’S THIRD ISSUE: ATTORNEY’S FEES;
              SEADRIFT’S CROSS-APPEAL ISSUE: MANDAMUS RELIEF

      In its third issue, the Town complains that the trial court erred by awarding

Seadrift attorney’s fees because, according to the Town, Seadrift impermissibly

utilized the Declaratory Judgments Act solely as a vehicle to obtain attorney’s

fees.6 According to the Town, Seadrift was required to prove that Ordinance

011’s lot-size restriction was unenforceable in order to obtain the mandamus

relief Seadrift sought so that Seadrift’s declaratory judgment action was

unnecessary and served no purpose other than being a mechanism for attorney’s

fees. That is, the Town contends that Seadrift’s primary cause of action was for

mandamus and that Seadrift’s declaratory judgment action was simply an add-

on, addressing issues already pending before the trial court.

      It its cross-appeal, Seadrift argues that the trial court erred by denying its

request for mandamus relief after Seadrift established via its declaratory

judgment action that Ordinance 011’s two-acre lot-size provision was


      6
     The Town does not challenge the reasonableness of or necessity for the
amount of the attorney’s fees awarded to Seadrift.

                                        16
unenforceable as violative of local government code section 212.003(a)(4).

According to Seadrift, at this point, the Town’s approval of the preliminary plat

became a ministerial duty. See Tex. Loc. Gov’t Code Ann. § 212.005 (West

2008) (providing that the municipal authority responsible for approving plats must

approve a plat or replat that is required to be prepared under this subchapter and

that satisfies all applicable regulations).   Consequently, via its cross-appeal,

Seadrift requests that this court issue a writ of mandamus ordering the Town to

approve Seadrift’s preliminary plat.

      We address these two issues together because they are somewhat

interrelated. It is well settled that the validity of an ordinance may be challenged

through a declaratory judgment action. See, e.g., City of San Antonio v. Greater

San Antonio Builders Ass’n, 419 S.W.3d 597, 599–605 (Tex. App.—San Antonio

2013, pet. denied) (affirming trial court’s declaratory judgment declaring

ordinance invalid).   It is likewise well settled that a trial court may award

attorney’s fees in a declaratory judgment action. See, e.g., Tex. Civ. Prac. &

Rem. Code Ann. § 37.009 (West 2008); Bocquet v. Herring, 972 S.W.2d 19, 20–

21 (Tex. 1998); Greater San Antonio Builders Ass’n, 419 S.W.3d at 605

(affirming award of attorney’s fees to prevailing party after trial court declared

ordinance invalid).   Thus, the issue is whether Seadrift’s mandamus action

somehow altered the application of these two well-settled rules.

      It is true, as the Town contends, that a claim may not simply be repleaded

as a declaratory judgment claim in order to justify an award of attorney’s fees.

                                        17
See, e.g., MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 670

(Tex. 2009). Instead, the Declaratory Judgments Act is “intended as a speedy

and effective remedy” for settling disputes before substantial damages are

incurred and is “intended to provide a remedy that is simpler and less harsh than

coercive relief, if it appears that a declaration might terminate the potential

controversy.” Id.

      Here, Seadrift’s pleaded mandamus cause of action was conditioned on

the trial court’s declaration that the Town’s Ordinance 011 violated Texas Local

Government Code section 212.003(a)(4). Seadrift conceded that only if the trial

court declared the Town’s Ordinance 011 invalid would Seadrift be entitled to

issuance of a mandamus requiring the Town to approve its preliminary plat.

Seadrift argued:    “In other words, as long as the two-acre minimum lot size

remains enforceable under Ordinance 11, the Town is not required to approve

Seadrift’s preliminary plat[,] and a writ of mandamus could not issue.”

      A district court is vested with original mandamus jurisdiction over county

officials. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex.

1981) (citing former Tex. Const. art. V, § 8); Sheppard v. Thomas, 101 S.W.3d

577, 580 (Tex. App.––Houston [1st Dist.] 2003, pet. denied). A district court may

issue a writ of mandamus to compel a public official to perform a ministerial act.

See Sheppard, 101 S.W.at 580.7 An act is ministerial when the law clearly spells


      7
        Citing Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)
(requiring mayor to hold election on question of abolishing city’s corporate
                                        18
out the duty to be performed by the official with sufficient certainty that nothing is

left to the exercise of discretion. Anderson, 806 S.W.2d at 793.

      Here, the Town denied Seadrift’s preliminary plat because the proposed

subdivision lots in the Town’s ETJ were less than two acres in size; a two-acre lot

size was required by the Town’s Ordinance 011. Thus, as Seadrift concedes, at

the time the Town denied Seadrift’s preliminary plat, no ministerial duty existed

for the Town to approve the plat because the plat did not “satisfy all applicable

regulations,” namely Ordinance 011. Only after the trial court declared that the

Town’s Ordinance 011 violated the local government code could any ministerial

duty have arisen for the Town to approve Seadrift’s preliminary plat. Seadrift has

not cited, and we have not located, any authority for the proposition that a

mandamus will issue against a county official based on allegations that a

ministerial duty arose after the county official acted or failed to act. Likewise, no

summary-judgment evidence exists in the record before us that the Town has,

since Ordinance 011 was declared violative of local government code section

212.003(a)(4), granted or denied Seadrift’s preliminary plat. See In re Kuster,

363 S.W.3d 287, 290–91 (Tex. App.––Amarillo 2012, orig. proceeding) (denying

petition for writ of mandamus to the extent it sought relief based of facts that had

existence); Turner v. Pruitt, 161 Tex. 532, 533–34, 342 S.W.2d 422, 423 (1961)
(citing action against justice of peace for damages for failure to provide jury for
person charged with misdemeanor criminal offense in justice of peace court); and
Bichsel v. Carver, 159 Tex. 393, 394–95, 321 S.W.2d 284, 285 (1959)
(proceeding brought to mandamus chief of police to reinstate suspended police
officer).

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not yet occurred); Owens Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622,

624 (Tex. App.––Houston [1st Dist.] 1991, orig. proceeding) (holding mandamus

will not issue to compel a public official to do what he has not been asked to do).

Thus, the trial court did not err by denying Seadrift’s motion for summary

judgment on its mandamus claim. Our holding here does not prevent Seadrift

from refiling its mandamus claim. We overrule the sole issue raised by Seadrift

in its cross-appeal.

      For these same reasons, we overrule the Town’s third issue contending

that Seadrift’s declaratory judgment action was simply a recasting of its

mandamus action. Because we affirm both the trial court’s grant of summary

judgment for Seadrift on Seadrift’s declaratory judgment claim and the trial

court’s denial of Seadrift’s motion for summary judgment on its claim for

mandamus relief, these two claims cannot be considered the same claim.

Moreover, it is the summary judgment on Seadrift’s declaratory judgment action

that terminated the uncertainty and the controversy between the parties, not the

mandamus action; the mandamus action will lie only if there is no controversy

because a ministerial duty is owed. See Anderson, 806 S.W.2d at 793; see also

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (recognizing

that a trial court may enter a declaratory judgment so long as it will serve a useful

purpose of terminating the controversy between the parties).




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                                 VII. CONCLUSION

      Having overruled the Town’s three issues and having overruled the sole

issue raised in Seadrift’s cross-appeal, we affirm the trial court’s judgment.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE


PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: September 25, 2014




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