             TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-11-00817-CV



    Caroline Miller, Catherine Austin, Dewey T. Bell, Kimberly Bell, Mike Bellows,
    Rhonda Bellows, Curtis Dwayne Breaux, Lisa Gayle Breaux, Thomas J. Canton,
  Vera Canton, Warren J. Clark, Patricia K. Clark, Barbara Garry, Donna Ann Green,
     Clifford Guidry, Shirley Guidry, Bradley K. Kloefkorn, Patricia C. Kloefkorn,
     Jerald Paul LeBlanc, Janet Elizabeth LeBlanc, Don Lofton, Mattie L. Lofton,
     Joel Daniel Love Jr., Drew Potter, Ronald James Prince, Roger D. Rashall Jr.,
  Roger D. Rashall Sr., Cynthia G. Rashall, Larry C. Shoemaker, Martha Shoemaker,
                    Anton Smikal, and Martha Smikal, Appellants

                                                v.

  South East Texas Regional Planning Commission, Jefferson County Appraisal District,
       Roland R. Bieber, and Jefferson County Drainage District No. 6, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
         NO. D-1-GN-10-003240, HONORABLE TIM SULAK, JUDGE PRESIDING



                           MEMORANDUM OPINION


               After appellants’ homes were damaged by Hurricane Ike, they brought suit seeking

damages and declaratory relief against multiple governmental entities, officials, and others. In

June 2011, the trial court granted the motion to dismiss, plea to the jurisdiction, and motion for

summary judgment of appellees South East Texas Regional Planning Commission, Jefferson County

Appraisal District (JCAD), Roland R. Bieber, and Jefferson County Drainage District No. 6.1




       1
         We refer to the Commission, the JCAD, and the District collectively as the local
governmental entities.
Appellants raise five issues on appeal, challenging the trial court’s ruling. For the reasons that

follow, we overrule appellants’ issues and affirm the trial court’s order.2


                                         BACKGROUND

               Appellants filed suit on September 13, 2010, against 24 defendants, including the

State of Texas, local governmental entities and officials, private companies, and individual

surveyors. Appellants asserted the same federal and state causes of action against each defendant

based upon their alleged actions and inactions surrounding appellants’ property damage sustained

during Hurricane Ike. The causes of action were: (i) federal statutory and constitutional claims,

see U.S. Const. amend. I, V; 42 U.S.C. §§ 1983, 1985, 1988, 5121–5207; (ii) state statutory and

constitutional claims, see Tex. Const. art. I, § 17; Tex. Bus. & Com. Code §§ 17.46–.59 (DTPA),

27.01 (real estate fraud); Tex. Loc. Gov’t Code §§ 271.001–.907; (iii) fraud; (iv) breach of contract;

(v) fraud in the inducement of a contract; (vi) negligence and gross negligence; (vii) civil

conspiracy; and (viii) claims for declaratory relief, see Tex. Civ. Prac. & Rem. Code

§§ 37.001–.011 (UDJA).3

               Appellants factually pleaded that their homes were built in the 100-year flood plain

as a result of the “mishandling of information about the elevation of their homes by Jefferson



       2
          In a separate but related appeal, 03-11-00521-CV, appellants challenge a final judgment
in favor of Jefferson County. In August 2011, the trial court granted Jefferson County’s motion for
summary judgment and no evidence summary judgment and severed the claims against Jefferson
County into a separate cause number. The appeal from that judgment was consolidated with this
appeal for purposes of oral argument only. Appellants raise the same five issues in both appeals.
By opinion issued this same date, we affirm the trial court’s judgment in favor of Jefferson County.
       3
         The defendants, other than appellees and Jefferson County, were non-suited or dismissed
from the case prior to the final judgment. They are not parties on appeal.

                                                  2
County officials, surveyors and others”; the defendants published, approved, and concealed false

flood plain and elevation data prior to Hurricane Ike; and the defendants failed to warn appellants

despite knowing that the elevations concerning their properties were incorrect. Appellants also

sought damages arising out of their participation in a Federal Emergency Management Agency

(FEMA) flood buyout program. As part of this program, appellants, except appellant Drew Potter,

sold their property to Jefferson County. Appellants alleged that defendants misled them and that

funds were available to pay additional amounts to them for their property but were used for other

purposes. Appellants alleged: “FEMA agreed to pay the statutory maximum of 75% of the value

of each of the Plaintiffs’ homes and the State of Texas was obligated to pay the remaining 25%

from funds made available by the state.” They sought a declaration that “the State of Texas [was]

required to pay to Plaintiffs the 25% matching funds in the FEMA buyout and a mandate that the

Texas Comptroller of Public Accounts make such payment instanter.”

                In January 2011, appellees filed a plea to the jurisdiction, motion to dismiss, and

motion for traditional and no-evidence summary judgment. The local governmental entities

asserted governmental immunity with respect to the state claims, and Bieber, the Chief Appraiser

for JCAD, asserted official and qualified immunity from appellants’ claims. They sought to have

the state claims asserted against Bieber dismissed based upon the election of remedies section of

the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.106(e). They further

asserted that, “as a matter of law,” they “were entitled to summary judgment on all claims alleged

by Plaintiffs as the pleadings, evidence, and lack of evidence, do not specifically plead, or establish,

a claim against Defendants under the statutes, constitutional or common law causes of action pled.”




                                                   3
               Appellants filed a response to appellees’ plea to the jurisdiction, motion to dismiss,

and motion for traditional and no-evidence summary judgment in June 2011. One of their

arguments was that appellees’ motion was improper because they should have filed special

exceptions. Attached to their response was a preliminary report dated March 26, 2009, by the

Governor’s Commission for Disaster Recovery and Renewal. Appellees filed a reply and addressed

appellants’ contention that they should have filed special exceptions. They argued that appellants

should not be allowed an opportunity to amend their pleadings because they had failed to show how

they would amend their pleadings to plead a viable claim against appellees and that repleading in

this case would serve no legitimate purpose.

               After a hearing, the trial court granted appellees’ plea and motions. After the trial

court’s order became final, this appeal followed.


                                            ANALYSIS

               Appellants raise five issues on appeal. They contend: (i) they have a private cause

of action under the Stafford Act, (ii) appellees were required to have special exceptions sustained

prior to having appellants’ suit dismissed for failure to state a claim, (iii) Texas immunity law does

not protect appellees from liability for each of the causes of action appellants asserted,

(iv) provisions of chapter 271 of the local government code allow suit against local government

entities and their employees, and (v) the immunity defense is “abrogated” because the statutes at

issue required ministerial acts.




                                                  4
Special Exceptions

                We begin with appellants’ second issue. Appellants argue that appellees’ motion

was “essentially no more than a tarted-up Special Exception,” that appellees may not bypass the

special exceptions requirement, and that the trial court should not have granted appellees’ motion

without first requiring appellees to have special exceptions sustained. See Tex. R. Civ. P. 91

(special exception shall “point out particular pleading excepted to” and “the defect, omission,

obscurity, duplicity, generality, or other insufficiency in the allegations in the pleadings excepted

to”). Appellees counter that their plea to the jurisdiction and motion to dismiss were not based upon

the pleading’s lack of clarity but appellants’ failure to allege an actionable claim against appellees.

Appellees challenged the trial court’s jurisdiction to hear appellants’ claims, as factually pleaded,

based upon, among other grounds, governmental and official immunity.

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

defeat an action ‘without regard to whether the claims asserted have merit.’” Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (citing Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A plea to the jurisdiction may be based solely on the

plaintiffs’ pleadings. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex.

2004). “Typically, the plea challenges whether the plaintiff has alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the case.” Garcia, 372 S.W.3d at 635 (citing Texas

Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)); see Miranda,

133 S.W.3d at 226 (noting that focus for plea challenging pleadings is whether the pleaded facts

affirmatively demonstrate the court’s jurisdiction to hear the case).




                                                  5
                Governmental immunity, which is properly asserted in a plea to the jurisdiction,

deprives a trial court of subject matter jurisdiction in suits against political subdivisions of the State

unless the political subdivision consents to suit. See Rolling Plains Groundwater Conservation

Dist. v. City of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (per curiam) (noting that political

subdivisions of the State are “entitled to governmental immunity from a suit for money damages

unless it has been waived”); Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842

(Tex. 2009) (noting that governmental immunity protects political subdivisions of the State, such

as hospital districts, from lawsuits for damages); Miranda, 133 S.W.3d at 225–26 (noting that

sovereign immunity “properly asserted in a plea to the jurisdiction”).

                Similarly, a governmental official may seek dismissal in a plea to the jurisdiction.

“Under Texas law, a suit against a government employee in his official capacity is a suit against his

government employer with one exception: an action alleging that the employee acted ultra vires.”

Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011); see also City of El Paso v. Heinrich,

284 S.W.3d 366, 372–73 (Tex. 2009) (describing ultra vires claims).4 “With that exception, an

employee sued in his official capacity has the same governmental immunity, derivatively as his

government employer.” Franka, 332 S.W.3d at 382–83. A government employee sued in his


        4
          In the section of their briefing addressing their special exception issue, appellants argue that
appellees “misunderstand or mischaracterize the nature of this suit.” They state that their “suit is
fundamentally, though not entirely, a suit over ultra vires government actions” and a “declaratory
judgment action seeking construction of the federal Stafford Act and the obligations that Act
imposes on various governmental actors and agencies.” An ultra vires claim may only be asserted
against a governmental actor in his official capacity. City of El Paso v. Heinrich, 284 S.W.3d 366,
372–73 (Tex. 2009). The only possible defendant subject to an ultra vires claim is Bieber, but
appellants failed to plead facts or produce evidence that would support a finding that he committed
an ultra vires act. See id. Further, a declaratory judgment action does not change the underlying
nature of a suit, and it may not be used to circumvent immunity from a suit for money damages. Id.
at 371.

                                                    6
individual capacity also may assert official or qualified immunity. Official immunity protects

public employees “‘from suit arising from the performance of their (1) discretionary duties in

(2) good faith as long as they are (3) acting within the scope of their authority.’” Id. at 383 (quoting

City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). Qualified immunity provides

similar protections for a government official as to federal claims. Ballantyne v. Champion Builders,

Inc., 144 S.W.3d 417, 428 n.3 (Tex. 2004). Once a defendant raises qualified immunity, a plaintiff

must plead and prove that he can overcome the immunity or the claims may be dismissed. Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985).

                It is also well established that a governmental unit is immune from suit unless the

immunity is waived by clear and unambiguous legislative consent. See Tex. Gov’t Code § 311.034;

Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A plaintiff “must affirmatively

demonstrate the court’s jurisdiction by alleging a valid waiver of immunity,” Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); see Jones, 8 S.W.3d at 638, or that immunity

is inapplicable, see Heinrich, 284 S.W.3d at 372 (sovereign immunity does not prohibit “suits to

require state officials to comply with statutory or constitutional provisions”). It was appellants’

burden then to affirmatively demonstrate a valid waiver of immunity as to each of their claims or

that immunity did not apply.

                Appellees also sought dismissal of appellants’ claims against Bieber, the chief

appraiser for the JCAD, based upon the statutory election of remedies in section 101.106 of the

TTCA. See Tex. Civ. Prac. & Rem. Code § 101.106. Section 101.106 states in relevant part:


        (a)     The filing of a suit under this chapter against a governmental unit constitutes
                an irrevocable election by the plaintiff and immediately and forever bars any


                                                   7
               suit or recovery by the plaintiff against any individual employee of the
               governmental unit regarding the same subject matter.

       (e)     If a suit is filed under this chapter against both a governmental unit and any
               of its employees, the employees shall immediately be dismissed on the filing
               of a motion by the governmental unit.


Id. § 101.106(a), (e); see also Franka, 332 S.W.3d at 369 (noting that section 101.106 interpreted

to include all tort theories, not just those for which TTCA waives immunity).

               We also note that appellants had five months to respond to the plea and dispositive

motions. During that time, they did not amend their pleadings, and they have failed to show how

they would amend their pleadings to cure the jurisdictional problems. See Texas A&M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (declining to remand case in which plaintiff, on

appeal, lost a plea to the jurisdiction based upon immunity because plaintiff’s “pleading defects

cannot be cured, and he has made no suggestion as to how to cure the jurisdictional defect” and

noting that “pleading more facts in support of the breach of contract claim will not overcome Texas

A&M’s immunity from suit”); see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54–55

(Tex. 2003) (if pleading defect can be cured by amendment, not proper for trial court to grant

summary judgment without first sustaining special exception and permitting party opportunity to

cure defect). They also did not seek a continuance from the no-evidence motion for summary

judgment. See Tex. R. Civ. P. 166a(g), (i).

               We conclude that appellees were not required to have special exceptions sustained

prior to obtaining the trial court’s ruling on their plea to the jurisdiction and dispositive motions.

We overrule appellants’ second issue.




                                                  8
Stafford Act Claims

               In their first issue, appellants contend that they have a private right of action under

the federal Stafford Act consistent with Title IX precedent established in Cannon v. University of

Chicago, 441 U.S. 677 (1979). See 42 U.S.C. §§ 5121–5207 (Stafford Act). The Stafford Act

addresses federal disaster relief and assistance. See id.

               Appellants have not cited, and we have not found, authority to support their

contention that they have a private cause of action for damages under the Stafford Act against local

governmental entities or their officials. See, e.g., Ridgely v. Federal Emergency Mgmt. Agency,

512 F.3d 727, 729 (5th Cir. 2008) (action brought against FEMA for alleged constitutional

violations in administering program under Stafford Act); Sierra Club v. United States Army

Corps of Eng’rs, 446 F.3d 808, 813 n.l (8th Cir. 2006) (noting that “Stafford Act does not

expressly provide for private rights of action”); Diversified Carting, Inc. v. City of New York,

423 F. Supp. 2d 85, 95–96 (S.D.N.Y. 2005) (noting that generally actions brought under Stafford

Act are against FEMA and holding that the plaintiff did not have an express or implied right of

recovery against non-federal governmental entities pursuant to Stafford Act).

               Further, even if we were to conclude that there is a private cause of action under the

Stafford Act, we would conclude that the trial court did not err by dismissing the Stafford Act

claims against appellees. In their plea and motions, appellees asserted that appellants failed to

factually plead or prove that appellees violated any provision of the Stafford Act or that any of the

appellees were obligated to pay any amount to appellants under the Act or that the Stafford Act

waives governmental immunity. Appellants factually pleaded: “Under the terms of the buyout

program, as set forth in [the Stafford Act], FEMA agreed to pay the statutory maximum of 75% of


                                                 9
the value of each of the Plaintiffs’ homes [under the Stafford Act] and the State of Texas was

obligated to pay the remaining 25% from funds made available by the state.” Appellants’ pleaded

facts affirmatively assert that their Stafford Act claims were against the State, not appellees. See

Whitley, 104 S.W.3d at 542.

                Appellants’ evidence similarly does not support a Stafford Act violation by

appellees. The only evidence attached to appellants’ response to the plea to the jurisdiction and

motions was the preliminary report to the Governor from March 2009. The report provides

recommendations to address “the largest barriers to effective recovery and some vulnerabilities to

future disasters” and recommends certain amendments to the Stafford Act. Appellants rely upon

the following statement in the report that addressed a 25% matching requirement: “For example,

many of the funds disbursed through the act require a 25% match from the local jurisdiction.” This

statement, however, does not identify any legal obligation that appellees had to appellants under the

Stafford Act that would subject appellees to a suit for damages.5 We overrule appellants’ first issue.




        5
             Appellants filed a post-submission brief globally citing the Stafford Act as well
as related federal rules that they contend appellees violated. See 42 U.S.C. §§ 5121–5207;
44 C.F.R. §§ 206.203, 206.430–.440. None of these provisions, however, supports a private cause
of action against a local governmental entity or its employee based upon appellants’ factual
allegations. See 44 C.F.R. §§ 206.203 (describing type and extent of federal funding available under
state disaster assistance grants), .432 (describing extent of federal funding available under Hazard
Mitigation Grant Program, including cost sharing and limits on amount of federal funding),
.433 (describing state’s responsibilities under Hazard Mitigation Grant Program), .435 (describing
criteria for state to determine and select eligible hazard mitigation projects), .437 (describing state’s
plan for administration of Hazard Mitigation Grant Program), .438 (stating that state has primary
responsibility for project management and accountability). For example, section 206.203(2)(iii)
references “75 percent of the Federal share,” but it is expressly addressing damaged nonprofit
facilities. Id. § 206.203(2).

                                                  10
Ministerial Acts

                In their fifth issue, appellants urge that the immunity defense is “abrogated” when

a state actor fails to perform a ministerial duty. Appellants argue that there is a “ministerial

responsibility to comply with the commands of the Stafford Act.” As previously stated, appellants

failed to present any evidence to the trial court that would support a finding that any of the appellees

were obligated to make a payment to appellants or that they otherwise violated the Stafford Act.

Further, a claim that a state actor has failed to perform a ministerial duty is an ultra vires claim that

may only be asserted against a governmental actor in his official capacity. Heinrich, 284 S.W.3d

at 372–73. The only possible appellee subject to such a claim is Bieber, but appellants failed to

plead facts or to produce evidence that would support a finding that he failed to perform a

ministerial duty. See id. Other than naming Bieber as a defendant, appellants failed to make any

specific factual allegations as to Bieber.         Appellants also have not identified a statute or

constitutional provision that mandated a ministerial act by a county appraiser such as Bieber. On

this basis, we overrule appellants’ fifth issue.


Contract Claims

                In their fourth issue, appellants contend that appellees are not immune from contract

claims and that provisions in chapter 271 of the local government code allow suit against local

governmental entities and their employees. They point to section 271.152 that waives immunity

to suit for certain claims against local governmental entities and section 271.153 that places limits

on recoverable damages. See Tex. Loc. Gov’t Code §§ 271.152–.153. A contract that is subject

to the waiver in section 271.152 is defined to mean “a written contract stating the essential terms



                                                    11
of the agreement for providing goods or services to the local governmental entity that is properly

executed on behalf of the local governmental entity.” See id. § 271.151(2). Appellants did not

factually plead or produce evidence that they entered into a contract with any of the appellees “for

providing goods or services to the local government entity.” Based upon the plain language of this

limited waiver of immunity, we conclude that it does not apply here. See Presidio Indep. Sch. Dist.

v. Scott, 309 S.W.3d 927, 932 (Tex. 2010) (interpreting statute based upon its “plain language”).

               Appellants also argue that local governmental entities are not immune from contract

claims when they contract with private parties. Even if we were to agree with appellants, appellants

failed to factually plead or produce any evidence that would support a finding that they entered into

a contract with any of the appellees that would support a waiver of immunity from suits for

damages. See Whitley, 104 S.W.3d at 542 (plaintiff’s burden to affirmatively demonstrate waiver

of immunity). We overrule appellants’ fourth issue.6


Texas Immunity Law

               In their third issue, appellants argue that Texas immunity law does not absolutely

protect appellees from liability for each of their causes of action. We have already concluded that

the trial court did not err by dismissing appellants’ claims that were based upon the Stafford Act

and their contract claims. As to the remaining causes of action, we are also mindful that, in addition

to the motion to dismiss and plea to the jurisdiction, appellees sought no-evidence and traditional

summary judgment as to each of appellants’ causes of action. See Tex. R. Civ. P. 166a(c), (i).


       6
         In the section of their brief addressing contract claims, appellants urge that appellees plead
settlement and release based upon the contracts that were signed. They urge that the releases fail
because there was no consideration for the contracts that they signed and that they were signed under
duress. The only written contracts were between appellants and Jefferson County.

                                                 12
                We review the trial court’s decision to grant summary judgment de novo. Texas

Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007); Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for

summary judgment, the movant must establish that there are no genuine issues of material fact and

the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). In a no-evidence motion for

summary judgment, the movant, without presenting evidence, seeks summary judgment on the

ground that there is no evidence of one or more essential elements of the nonmovant’s claim, and

the burden shifts to the nonmovant to produce evidence raising a fact issue. Tex. R. Civ. P. 166a(i).

“A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same

legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing

a directed verdict.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003).

                When “the trial court’s order granting summary judgment does not specify the basis

for the ruling,” as is the case here, “we must affirm the trial court’s judgment if any of the theories

advanced are meritorious.” Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In this

context, we address appellants’ remaining causes of action.


        State Tort Claims

                In their pleadings, appellants globally asserted fraud, fraud in the inducement of a

contract, negligence, gross negligence, and civil conspiracy against all of the defendants.

Appellants rely upon sections 101.021 and 101.022 of the TTCA to support their position that

appellees are not protected by governmental immunity from these tort claims. See Tex. Civ. Prac.



                                                  13
& Rem. Code §§ 101.021, .022. In those two sections, the legislature granted a limited waiver of

immunity from suit for certain tort claims. The issue then is whether appellants affirmatively

demonstrated that appellees waived immunity from suit for damages under these two sections. See

Whitley, 104 S.W.3d at 542. Based upon the sections’ plain language, we conclude that appellants

did not. See Scott, 309 S.W.3d at 932.

                Appellants do not allege personal injury or death. See Tex. Civ. Prac. & Rem. Code

§ 101.021(2). Appellants also have not asserted a claim based upon the “operation or use of a

motor-driven vehicle or motor-driven equipment.” See id. § 101.021(1)(A). Appellants argue that

“immunity is waived for grossly negligent acts relative to a premises defect,” but they failed to

allege or present evidence that would support a premises defect claim against appellees. See id.

§ 101.022. They argue that appellees “created a premises defect that led to the flooding of

Plaintiff’s residences.” But to recover on a premises defect claim, a plaintiff must show that the

governmental entity “possessed—that is, owned, occupied, or controlled—the premises where the

injury occurred.” See County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). Appellants

did not factually plead or present evidence that appellees “possessed” appellants’ property. See id.

Premises liability claims under the TTCA also are limited to claims involving “personal injury” or

“death.” See Tex. Civ. Prac. & Rem. Code § 101.021(2).

                Appellants also argue that the TTCA does not apply to intentional and

“constitutional torts” that are ultra vires. See id. § 101.057 (excluding certain intentional torts from

TTCA). It was appellants’ burden, however, to establish a waiver of immunity through a state

statutory or constitutional provision to proceed against appellees on their state tort claims or that

immunity did not apply. As we previously discussed, the only appellee who could be subject to


                                                  14
ultra vires claims is Bieber. See Heinrich, 284 S.W.3d at 372–73. To the extent that appellants

asserted their state tort claims against Bieber, the trial court properly dismissed those claims based

upon section 101.106 of the TTCA. See Tex. Civ. Prac. & Rem. Code § 101.106(e); Franka,

332 S.W.3d at 369. In their pleadings, appellants asserted the same claims against Bieber and

JCAD. Under section 101.106(e), the trial court was required to dismiss the claims asserted against

Bieber on the filing of JCAD’s motion to dismiss. We conclude that the trial court did not err by

dismissing appellants’ state tort claims.


       State Statutory Claims

               Appellants globally pleaded that the defendants violated the DTPA and committed

statutory real estate fraud. See Tex. Bus. & Com. Code §§17.46, 27.01. In their briefing to this

Court, they admit that governmental immunity is not waived for their claims brought under the

DTPA or the statutory real estate fraud provision. See Dallas Cnty. v. Rischon Dev. Corp.,

242 S.W.3d 90, 94–95 (Tex. App.—Dallas 2007, pet. denied) (concluding that legislature did not

waive the county’s immunity from suit under sections 17.50 and 27.01 of business and commerce

code). They assert that there need be no waiver because they are bringing those claims against “an

ultra vires actor.” As previously stated, the only appellee subject to an ultra vires claim is Bieber,

and appellants failed to allege or present evidence to support a claim against Bieber under either

statute. The trial court did not err by dismissing appellants’ state statutory claims.


       State Constitutional Claim

               Appellants pleaded a takings claim under the Texas Constitution. See Tex. Const.

art. I, § 17. For purposes of this appeal, the takings clause states: “No person’s property shall be


                                                 15
taken, damaged or destroyed for or applied to public use without adequate compensation being

made, unless by the consent of such person.” Id. A takings claim is not barred by immunity. State

v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (noting that “sovereign immunity does not shield the

State from a claim based upon [the takings clause]”); General Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (same). But appellants fail to address appellees’

summary judgment motions as to this claim. See Urena, 162 S.W.3d at 550 (appellate court must

affirm trial court’s summary judgment if any ground meritorious). In their motions, appellees

asserted that appellants had failed to plead facts or present evidence that would support a finding

that appellees intentionally took appellants’ property without just compensation for a public use.

Appellees also argued that there was no case law to support a takings claim against an individual

governmental actor.

               “To establish a takings claim under Article I, section 17, the claimant must show that

a governmental actor acted intentionally to take or damage property for a public use.” Holland,

221 S.W.3d at 643 (citing Little-Tex Insulation Co., 39 S.W.3d at 598). “Whether particular facts

are enough to constitute a taking is a question of law.” Little-Tex Insulation Co., 39 S.W.3d at 598

(citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998)). We limit our review to

the “public use” element because it is dispositive here. See Tex. R. App. P. 47.1. Even if we were

to assume that appellees acted intentionally “to take or damage” appellants’ property, appellants

failed to plead facts or present evidence that would support a finding that they did so for “public

use.” See City of Austin v. Whittington, 384 S.W.3d 766, 779 (Tex. 2012) (noting that “public use”

provides benefit to public); City of Dallas v. Jennings, 142 S.W.3d 310, 313 (Tex. 2004) (noting

that when there is “no public benefit,” “the property cannot be said to be ‘taken or damaged for


                                                16
public use.’”) (quoting Texas Highway Dep’t v. Weber, 219 S.W.2d 70, 71 (Tex. 1949) (emphasis

added)). Appellants also fail to cite, and we have not found, authority to support a takings claims

based upon their pleaded facts against an individual such as Bieber. We conclude that the trial court

did not err by granting summary judgment in favor of appellees as to the takings claims.


       Federal Statutory and Constitutional Claims

               In their pleadings, appellants globally asserted that the defendants violated the First

and Fifth Amendments of the United States Constitution and sections 1983, 1985, and 1988 of title

42 of the United States Code. See U.S. Const. amend. I, V; 42 U.S.C. §§ 1983 (civil action for

“deprivation of any rights, privileges, or immunities secured by Constitution and law”), 1985 (civil

action for “conspiracy to interfere with civil rights”), 1988 (addressing “[p]roceeding in vindication

of civil rights”). In their briefing to this Court, appellants urge that “qualified immunity” does not

protect appellees from the federal claims, that “state law sovereign immunity and state law

limitations on damages do not protect local governments from liability under section 1983,” and

that “[l]ocal governments also have no immunity from damages flowing from their constitutional

violations.” Appellants again fail to address appellees’ summary judgment motions as to the federal

claims. See Urena, 162 S.W.3d at 550.

               Among other grounds, appellees asserted that appellants had failed to plead or

present any evidence that would support any of their federal claims, including their civil rights

and constitutional claims. See U.S. Const. amend. I, V; 42 U.S.C. §§ 1983, 1985, 1988; Lockett

v. New Orleans City, 607 F.3d 992, 1002 (5th Cir. 2010) (listing elements of a 1985 claim); Jones

v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000) (noting that “Fifth Amendment applies



                                                 17
only to violations of constitutional rights by United States or a federal actor”); Mylett v. Mullican,

992 F.2d 1347, 1349–50 (5th Cir. 1993) (noting plaintiff must show engaged in protected speech

or association to support a First Amendment claim); Paz v. Weir, 137 F. Supp. 2d 782, 796 (S.D.

Tex. 2001) (listing required elements of a 1983 claim). We agree and conclude that the trial court

did not err by granting summary judgment in favor of appellees as to appellants’ federal

constitutional and civil rights claims.


       UDJA Claims

               In their briefing to this Court, appellants contend that they seek declarations of the

rights and responsibilities of governmental agencies and “construction of the federal Stafford Act

and the obligations that Act imposes on various governmental actors and agencies.” In their

pleadings, however, the declaration that they sought was “that the State of Texas is required to pay

the 25% matching funds in the FEMA buyout and a mandate that the Texas Comptroller of Public

Accounts make such payment instanter.”

               In their plea and motions, appellees urged that appellants’ asserted UDJA claim was

not asserted against them, but against the State, and that the UDJA cannot be used to circumvent

governmental immunity as to past due money damages. As to Bieber, they also asserted that their

was no pleading or evidence to support any claim against him. We agree that appellants’ pleaded

request for declaratory relief did not address appellees, but the State. Further, a request for

declaratory relief “does not alter a suit’s underlying nature.” See Heinrich, 284 S.W.3d at 371. A

claim for past due money damages as a declaratory judgment claim is generally not allowed under

Texas immunity law. See id. We also note that appellants’ pleadings do not otherwise seek an



                                                 18
interpretation or challenge the constitutionality of any state statute, law, or ordinance. See Tex. Civ.

Prac. & Rem. Code § 37.004(a). Thus we conclude that the trial court did not err by dismissing

appellants’ UDJA claims against appellees.

                Because we conclude that the trial court did not err by ruling in favor of appellees

as to all of appellants’ claims whether or not they were barred by immunity, we overrule appellants’

third issue.


                                          CONCLUSION

                For these reasons, we affirm the trial court’s judgment.7



                                                __________________________________________

                                                Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: July 11, 2013




        7
          We need not address appellees’ other arguments that support affirming the trial court’s
judgment. See Tex. R. App. P. 38.1(f) (requiring appellant to “state concisely all issues or points
presented for review” in court of appeals), (i) (requiring appellant’s brief to “contain a clear and
concise argument for the contention made, with appropriate citations to authorities and to the
record”), 47.1.

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