                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-255-CV


CITY OF ARGYLE, TEXAS                                                APPELLANT

                                        V.

DAVID PIERCE, AN INDIVIDUAL, AND                                      APPELLEES
CLEAR CHANNEL OUTDOOR, INC.

                                    ------------

         FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                                   OPINION

                                    ------------

                                 I. Introduction

      This is the case of “Where’s the sign?” In four issues, Appellant City of

Argyle (“the City”) appeals the denial of its plea to the jurisdiction and asserts

that (1) David Pierce (“Pierce”) and Clear Channel Outdoor, Inc. (“Clear

Channel”) (collectively, “the Signers”) have no standing to bring constitutional

property claims because they have no vested property rights; (2) if Pierce and
Clear Channel had standing, their inverse condemnation claim is invalid and

would not defeat sovereign immunity; (3) a civil court lacks jurisdiction over

claims in equity that challenge a penal ordinance; and (4) the City cannot be

estopped from enforcing its sign ordinance. Because we hold that the City has

successfully challenged the trial court’s jurisdiction over some, but not all, of

the Signers’ claims, we reverse and render in part and affirm in part.

                      II. Factual and Procedural Background

         Pierce and Clear Channel erected an off-premises outdoor advertising sign

and sued the City when the City attempted to enforce its sign ordinance

preventing such signs from being erected in the City’s extra-territorial

jurisdiction (“ETJ”) against Pierce and Clear Channel.

         A. Ordinance Prohibits Signs in the ETJ

         On August 24, 1993, the City adopted a “Sign Regulations” ordinance

(“the Ordinance”), known as “Article 12.400.” The Ordinance, as amended in

1997, regulated and applied to signs within the City’s limits and within its ETJ.

The Ordinance contained detailed descriptions of the City’s sign regulations,

including a requirement to obtain a permit from the City and a list of prohibited

signs.     The Ordinance expressly prohibited “[s]igns advertising off-premise

businesses, products or services” like the one that is the genesis of this suit

and included a $500 penalty clause.




                                         2
      In 2003, the City adopted a very similar ordinance that raised the fine to

a maximum of $2,000 and continued to prohibit off-premises signs within the

City and its ETJ. As reflected in the city council meeting minutes for June 10,

1997, the City approved an ETJ Apportionment Agreement between the City

and two nearby municipalities, the City of Northlake and Corral City, and that

agreement has been on public file in the Denton County property records since

July 21, 1997. The ETJ agreement describes a dotted line that forms the

southern and eastern boundaries of the City’s ETJ.

      B. McCutchin Property

      On January 26, 1999, the City annexed approximately 144 acres of land

owned by the Ronald McCutchin Family Partnership, LTD., and Gene Paul

McCutchin into its ETJ (“McCutchin Property”).        The McCutchin Property

mostly surrounded the property at issue in this case. The City annexed the

McCutchin Property by adopting Ordinance 99-01.

      The City requested that David Gattis, the City’s cartographer, draw a map

concerning the City’s boundaries and ETJ. The map in part designated the

City’s ETJ by labeling such property “Extraterritorial Jurisdiction.” The map did

not, however, designate the sign property as “Extraterritorial Jurisdiction.”

Labeled “Abstracts,” the Gattis map was displayed in the City offices.




                                       3
      C. Pierce

      In 2000, prior to executing a Lease with Clear Channel, Pierce sought to

have his property rezoned. According to Pierce, the City Secretary, Debbie

Milligan, responded that whether he could accomplish rezoning was not an

issue for the City but for Denton County because the sign property was not

located within the City’s ETJ and that he could therefore do whatever he

wanted to do with the property. To support this statement, Milligan referred

Pierce to the Gattis map that designated the sign property as not within the

City’s ETJ. Before the sign was constructed, Pierce did not tell Clear Channel

about his conversation with Milligan, his interpretation of the Gattis map, or

other information regarding whether the sign location was within the City’s

ETJ. No one from Clear Channel ever asked Pierce whether the sign location

on the Pierce property was in the City’s ETJ.

      D. Clear Channel, TxDOT, and the City

      Prior to entering into the lease with Pierce, and prior to applying for a

permit, Clear Channel looked into whether the sign property was located within

the City’s ETJ.   Clear Channel began working with Texas Department of

Transportation (“TxDOT”) in March 2002 to determine the location of the

property and whether an outdoor advertising sign could be erected on the

property. Clear Channel was seeking to obtain a rural-road sign permit. The

property was located on a rural road, and Texas law required Clear Channel to

                                      4
obtain a permit from TxDOT to operate its sign unless the property was located

in the ETJ of a municipality.

      According to Judy Jamison, Clear Channel’s Assistant Real Estate

Manager, 1 whenever Clear Channel applied to TxDOT for a sign permit, it

included maps of the location of the sign so that TxDOT knew where to go to

inspect the sign location. One map that Clear Channel submitted to TxDOT

showed the sign in question as a “Centermount monopole,” with the center

pole of the sign twenty-seven feet south of the southern edge of F.M. 407 and

about .8 miles east of Interstate Highway 35.

      Jamison went to the City’s offices in late 2001 or early 2002 to find out

if the sign property was in the City’s ETJ. The City referred Jamison to the

Gattis map, hanging on the wall of the City’s permit clerk’s office, which did

not show the property to be in the City’s ETJ. The Gattis map indicated that

the sign property was separate from the City, located in an “island” surrounded

by the City. According to Jamison, the city secretary, Codi Delcambre, told her

that the property had possibly been disannexed by the City some time ago

because the City and the former owner of the property “had a falling out.” The



      1
       … Jamison was Clear Channel’s only Assistant Real Estate Manager for
the Dallas Division, and no other employee in that division performed her job
functions. Jamison’s job functions included determining whether a potential
sign location would be in conformance with state and local regulations.
According to Jamison, it was her responsibility to determine whether a sign
location was in a municipality’s ETJ.

                                      5
sign location was south of and adjacent to F.M. 407 (a two-lane rural road) in

Denton County and was adjacent to the City’s corporate boundary running

along the north edge of that road. In other words, the sign was across the

street from the City’s incorporated limits, and it was less than fifty feet from

the City’s corporate boundary.      Jamison’s visit to the City provided the

information that Clear Channel relied on to conclude that the sign location was

not in the City’s ETJ.

      Jamison also went to City Hall on September 23, 2003, after the City

discovered that the sign had been built and had promptly “red tagged” the sign

before construction could be finalized. During the second visit to the City,

Jamison was accompanied by another Clear Channel employee, Teresa Moore.

Jamison and Moore spoke with Bill Palmer, the City’s Code Enforcement

Officer, who asserted that the sign was in the City’s ETJ. That same day,

Jamison and Moore spoke with Delcambre, who also asserted that the property

was in the City’s ETJ. Clear Channel investigated the Denton County Appraisal

Records with regard to the property; the records indicated that the property

was not taxed by the City.

      Before Clear Channel built the sign, it was aware that off-premises signs

were prohibited within the City’s ETJ. Jamison had reviewed the City’s sign

ordinance before the sign was built, and it was clear to her that the ordinance

prohibited the type of sign at issue within the City’s ETJ. Because of that fact,

                                       6
Clear Channel specifically intended to find a potential sign location in an area

outside the City’s ETJ. A year and two months before initiating the permitting

process for the sign in question, Arnold Velez (President of the Dallas Division

of Clear Channel) received written notification from TxDOT stating that the City

did not allow certain signs in its ETJ. Velez stated that it was likely that he

would have forwarded that letter to the Clear Channel real estate department.

      E. The Lease

      Clear Channel routinely solicited lease agreements to place outdoor

advertising signs on private property, and it solicited and obtained such a lease

from Pierce. On March 29, 2002, Pierce and Clear Channel executed a lease

allowing Clear Channel to erect an outdoor advertising sign on Pierce’s

property, which is located in an unincorporated region of Denton County. The

lease contained a provision that allowed Clear Channel to terminate the

agreement if it was “unable to obtain or maintain any necessary permit for the

erection, use and/or maintenance” of a sign or if its sign’s use was “prevented

or restricted by law.” Clear Channel obtained the permit from TxDOT to own

and operate a sign on the property, as previously recounted. But after Clear

Channel began constructing the sign, the City stopped Clear Channel, asserting

that the property was in its ETJ and, therefore, was prohibited by the

Ordinance.




                                       7
       F. Procedural History

       On November 24, 2003, the City’s municipal court issued complaints

against Pierce and Velez for erecting an illegal off-premises sign. The following

day, summonses were issued commanding Pierce and Velez to appear in

municipal court on December 15, 2003, and answer the complaints.

       The Signers—Pierce and Clear Channel—filed this lawsuit in state court,

seeking a declaratory judgment with regard to the property’s location and was

that the property in question had been subject to inverse condemnation, that

the plaintiffs had been deprived of their property interests, and that the

penalties accessed by the City were tolled during the Signers’ constitutional

challenges. On the City’s motion, the case was removed to federal court. The

federal court subsequently denied the City’s motion for summary judgment,

specifically ruling that the location of the property relative to the City’s ETJ was

a question under Texas law, and remanded the majority of the case to state

court. 2

       On May 25, 2007, the City filed its plea to the jurisdiction to challenge

the subject matter jurisdiction of the trial court, alleging,




       2
        … Currently, the case is splintered between the federal court and the
state trial court where it was originally filed; the federal court maintained
jurisdiction over some of the constitutional causes of action filed by the Signers.


                                         8
      Plaintiffs are challenging a penal ordinance and are not in danger of
      any constitutional deprivations to vested property rights. Plaintiffs’
      pleading affirmatively negates their inverse condemnation claim.
      Argyle’s sign ordinance is not arbitrary or capricious. Enforcement
      of the sign ordinance is a governmental function and Argyle is not
      subject to being estopped from enforcing the sign ordinance.
      Therefore, Argyle is immune from suit, this Court is without
      jurisdiction in this matter and Plaintiffs’ suit should be dismissed.

On June 29, 2007, the trial court denied the City’s plea to the jurisdiction

without specifying the reason therefor. This appeal followed.

               III. Standard of Review—Plea to the Jurisdiction

      W e review the denial of a plea to the jurisdiction under a de novo

standard. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004).    A plea to the jurisdiction is a dilatory plea; its purpose is “to

defeat a cause of action without regard to whether the claims asserted have

merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The

purpose of a dilatory plea is not to force the plaintiffs to preview their case on

the merits but to establish a reason why the merits of the plaintiffs’ claims

should never be reached. Id. Although the claims may form the context in

which a plea to the jurisdiction is raised, the plea should be decided without

delving into the merits of the case. Id.

      Accordingly, in determining whether jurisdiction exists, we construe the

pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. See

Miranda, 133 S.W.3d at 226. We may also consider evidence presented to the



                                         9
trial court relevant to jurisdiction when it is necessary to resolve the

jurisdictional dispute.   See Bland, 34 S.W.3d at 554–55.            If the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction

may be granted without allowing the plaintiff an opportunity to amend. County

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

                            IV. Declaratory Judgment

      In their live petition at the time of the trial court’s ruling on the City’s plea

to the jurisdiction, the Signers first asserted a cause of action under the

Declaratory Judgments Act. The Act provides,

      A person interested under a . . . written contract, or other writings
      constituting a contract or whose rights, status, or other legal
      relations are affected by a statute, municipal ordinance . . . may
      have determined any question of construction or validity arising
      under the . . . ordinance . . . and obtain a declaration of rights,
      status, or other legal relations thereunder.

T EX. C IV. P RAC. & R EM. C ODE A NN. § 37.004(a) (Vernon Supp. 2007).

Specifically, the Signers sought a declaratory judgment that (1) the sign

property is not within the City’s ETJ; (2) the City is estopped from asserting

that the sign property is within its ETJ; (3) the City’s authority to regulate in its

ETJ has been revoked; and (4) the City has disannexed the sign property. 3 The




      3
        … The Signers also sought a declaratory judgment that Velez is not
subject to the Ordinance, but the City’s plea to the jurisdiction did not challenge
the trial court’s jurisdiction over that cause of action.

                                         10
City’s third and fourth issues challenge the trial court’s jurisdiction over these

declaratory judgment claims.

      A.    The Trial Court’s Jurisdiction Over a Case Involving a Penal
            Ordinance

      In its third issue, citing State v. Morales, 869 S.W.2d 941, 945 (Tex.

1994), the City argues that the trial court may not hear these declaratory

judgment claims because the Ordinance is a penal ordinance, over which a civil

court has no jurisdiction.4 The Texas Supreme Court in State v. Morales held

that, with exceptions, a civil court does not have jurisdiction to render a

declaratory judgment regarding the constitutionality of a penal statute. Id. at

947. The court explained,

             In this state’s bifurcated system of civil and criminal
      jurisdiction, a civil court has jurisdiction to declare constitutionally
      invalid and enjoin the enforcement of a criminal statute only when
      (1) there is evidence that the statute at issue is unconstitutionally
      applied by a rule, policy, or other noncriminal means subject to a
      civil court’s equity powers and irreparable injury to property or
      personal rights is threatened, or (2) the enforcement of an
      unconstitutional statute threatens irreparable injury to property
      rights. A naked declaration as to the constitutionality of a criminal
      statute alone, without a valid request for injunctive relief, is clearly
      not within the jurisdiction of a Texas court sitting in equity.

Id. at 942. The City argues that the Signers cannot challenge the Ordinance in

a civil suit because they cannot meet the Morales exceptions and because they




      4
        … The City asserts that its Ordinance is a penal statute because its
violation constitutes a misdemeanor offense that carries a fine of up to $2,000.

                                        11
have an adequate remedy at law: challenging the penal provision as part of their

defense to a criminal prosecution. Because this argument mischaracterizes the

Signers’ requested declaratory relief, we disagree.

      The Signers do not challenge the constitutionality or the enforceability of

the Ordinance; rather, their lawsuit seeks a declaration that their conduct did

not constitute a violation of that Ordinance. This request necessarily assumes

the validity of the Ordinance because it asks the court to apply the Ordinance’s

provisions to the facts of this case and to conclude that the Ordinance does not

proscribe the Signers’ erection of their sign. Accordingly, we hold that State

v. Morales does not affect the trial court’s jurisdiction in this case, and we

overrule the City’s third issue.5

      B.    The Trial Court’s Jurisdiction Over the Signers’ Allegedly Meritless
            Claim of Estoppel

      Next, the City argues in its fourth issue that it is not estopped from

enforcing the Ordinance because estoppel cannot be invoked against a



      5
        … We note that courts have allowed the Declaratory Judgments Act to
be used to address conflicts over construction of municipal ordinances and
boundary disputes. See, e.g., Super Wash, Inc. v. City of White Settlement,
131 S.W.3d 249, 256 (Tex. App.—Fort Worth 2004) (holding that appellant
could seek declaration of the validity of a municipal ordinance under the
Declaratory Judgments Act because appellant’s rights, status or other legal
relations were affected by the ordinance), rev’d on other grounds, 198 S.W.3d
770 (Tex. 2006); Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79,
88–89 (Tex. App.—Austin 2004, pet. denied) (holding that appellees had the
right to have the courts interpret a water district’s enabling act to determine
issues relating to the water district’s boundaries).

                                      12
municipality that is engaged in its governmental or public functions. Citing

Bexar Metropolitan Water District v. Education & Economic Development Joint

Venture, 220 S.W.3d 25, 32 (Tex. App.—San Antonio 2006, pet. filed), the

City asserts that if equitable estoppel does not apply in a case against a

governmental unit, there is no waiver of immunity from suit.

      In Bexar Metropolitan Water District, a joint venture sued Bexar Met for

specific performance of a contract to sell real estate after Bexar Met had

refused to close. Id. at 27. The joint venture argued that principles of justice,

honesty, and fair dealing should estop Bexar Met from asserting its immunity

from suit. Id. at 32. The court held that, because the joint venture had failed

to show that application of equitable estoppel would not interfere with the

exercise of Bexar Met’s governmental functions and that Bexar Met had

accepted and retained the benefits arising from the contract, Bexar Met was not

estopped from asserting its immunity, and it reversed the trial court’s denial of

Bexar Met’s plea to the jurisdiction. Id. (citing City of Hutchins v. Prasifka, 450

S.W.2d 829, 836 (Tex. 1970) (discussing lack of interference with

governmental functions); City of Corpus Christi v. Gregg, 155 Tex. 537, 543,

289 S.W.2d 746, 751 (1956) (discussing accepted and retained benefits)).

      In contrast, here, the City is not arguing that its plea to the jurisdiction

should have been granted because estoppel does not apply to its assertion of

governmental immunity. Rather, the City is attempting to argue that the trial

                                        13
court lacks jurisdiction because estoppel cannot be invoked to bar its assertion

that the sign property is within its ETJ. In essence, the City is arguing that the

trial court does not have jurisdiction because the Signers’ cause of action is

without merit. However, the City has not shown that this is a proper manner

in which to challenge the trial court’s jurisdiction.

      In our review of a trial court’s ruling on a plea to the jurisdiction, we do

not delve into the merits of a case or decide whether the plaintiff would lose on

its claims; rather, we merely decide whether the trial court has the power to

reach the merits of those claims. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

Even if the law ultimately would not permit the City to be estopped from

asserting that the sign property is within its ETJ, the City has cited no authority

for the proposition that the ultimate outcome on the Signers’ declaratory

judgment claims has any bearing on the existence of the trial court’s jurisdiction

to hear the declaratory judgment causes of action. Accordingly, we overrule

the City’s fourth issue.

                           V. Inverse Condemnation

      In the alternative to their declaratory judgment causes of action, the

Signers pleaded a claim for inverse condemnation under Article I, Section 17 of




                                        14
the Texas constitution. 6 As the Signers explain, in the event that the trial court

ruled that the sign property is in the City’s ETJ and that the Ordinance is

constitutional, then they would assert this alternative cause of action. In its

second issue, the City argues that the trial court erred by denying its plea to the

jurisdiction as to the Signers’ inverse condemnation claim because the Signers

cannot show that the City’s sovereign immunity has been waived.

      A.    Waiver of Immunity for Inverse Condemnation Claims

      Governmental immunity affords a city protection from suit when the city

engages in the exercise of governmental functions unless that immunity is

clearly waived. City of Dallas v. Jennings, 142 S.W.3d 310, 315 (Tex. 2004);

Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Article I, section

17 of the Texas constitution waives governmental immunity for valid inverse

condemnation claims. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39

S.W.3d 591, 598 (Tex. 2001). Inverse condemnation occurs when property



      6
        … The Signers also pleaded a cause of action for deprivation of property
under the Fifth and Fourteenth Amendments to the United States Constitution.
The City contends that this claim is merely a restatement of, and is therefore
subsumed by, the inverse condemnation claim. The Signers do not disagree,
and in fact, do not even discuss this deprivation-of-property cause of action in
their brief; they discuss only the inverse condemnation claim, stating that it is
“contingent upon the outcome of its declaratory judgment requests and
constitutional challenges to the Sign Ordinance, the latter of which is pending
before the Federal Court.” Therefore, we shall assume that the Signers’
alternative inverse condemnation claim includes their deprivation-of-property
claim as well.


                                        15
is “taken” for public use without proper condemnation proceedings and the

property owner attempts to recover compensation for that taking.           City of

Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971). To state a

cause of action for inverse condemnation under the Texas constitution, a

plaintiff must allege (1) an intentional governmental act, (2) that resulted in his

property being taken, damaged, or destroyed, (3) for public use. Little-Tex, 39

S.W.3d at 598.

      Takings are classified as either physical or regulatory. Mayhew v. Town

of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998), cert. denied, 526 U.S. 1144

(1999).   The Signers do not argue that the City has physically taken their

property; instead, they allege a regulatory taking. A compensable regulatory

taking occurs when a governmental agency imposes restrictions that either

deny a property owner all economically viable use of his property or

unreasonably interfere with the owner’s right to use and enjoy the property.

Id. at 935; Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex. 1994), cert.

denied, 513 U.S. 1112 (1995). Whether particular facts are sufficient to allege

a constitutional taking is a question of law. Little-Tex, 39 S.W.3d at 598.

When a plaintiff does not allege a valid inverse condemnation claim,

governmental immunity applies, and the trial court should grant a plea to the

jurisdiction. Bell v. City of Dallas, 146 S.W .3d 819, 825 (Tex. App.—Dallas

2004, no pet.).

                                        16
      B.       The Property Interests Alleged To Have Been “Taken”

      The Signers assert four property interests that the City has “taken”:

Pierce’s fee interest in the land and Clear Channel’s leasehold, sign, and TxDOT

sign permit.

      1.       TxDOT sign permit

      First, we observe that the TxDOT permit is not a property interest

because the Texas Administrative Code unequivocally states: “[I]ssuance of a

permit shall not be deemed to create a property right in the permittee.” 43 T EX.

A DMIN. C ODE § 21.581 (2002). The Signers, citing Graham v. Richardson, 403

U.S. 365, 374, 91 S. Ct. 1848, 1853 (1971), and Reed v. Village of

Shorewood, 704 F.2d 943 (7th Cir. 1983), contest this statute by asserting

that “a State’s characterization of a governmental benefit is not determinative

of the constitutional rights of the benefit holder.” However, they present no

argument nor cite any authority that the permit is a property interest contrary

to the clear wording of the statute. We hold that the TxDOT permit is not a

property interest compensable as a result of inverse condemnation.

      2.       The sign

      The Signers argue that the sign on the sign property is a fixture, so it

gives rise to a property right for which compensation is owedwhen taken. But

whether a billboard is a fixture is a question of fact to be determined from the

mode and sufficiency of annexation, either real or constructive; from the

                                       17
adaptation of the article to the use or purpose of the realty; and from the intent

of the party who annexed the chattel to the realty. See Logan v. Mullis, 686

S.W.2d 605, 607 (Tex. 1985); see also Stevenson v. Clausel, 437 S.W.2d

404, 407 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ) (“Of the tests

for determining whether or not a chattel has become a fixture, pre-eminence is

given to the intention to make the thing a permanent accession to the freehold;

the other tests are of value chiefly as evidence of this intention.”).

      In our review of the trial court’s ruling on the City’s plea to the

jurisdiction, we construe the pleadings liberally in favor of the plaintiffs and look

to the pleaders’ intent. See Miranda, 133 S.W.3d at 226. We take as true all

evidence favorable to the Signers and indulge every reasonable inference and

resolve any doubts in their favor. See id. at 228. But in their petition, the

Signers merely provide the conclusory assertion that “[t]he City’s actions . . .

constitute an inverse condemnation through the taking, damaging, or destroying

of Pierce    and   Clear Channel’s     property   for public    use   without    just

compensation.” They do not further allege any facts explaining why the sign

in this case is “property” that the City has inversely condemned through a




                                         18
“taking.” Furthermore, on appeal, the Signers merely assert generally that “the

Sign is a fixture,” without providing any evidence of its permanent nature.7

      While we are to construe the pleadings and evidence liberally in favor of

the Signers, we cannot create evidence where none has been presented, and

we cannot assume that the billboard is a fixture in the absence of any evidence

showing so.      Therefore, we hold that the sign is not a property interest

compensable as a result of inverse condemnation.

      3.      The fee simple and leasehold interests

      Finally, the Signers claim that the City has “taken” Pierce’s fee interest

and Clear Channel’s leasehold interest8 in the sign property because the City

has denied them the economically viable use of their property interests and has

unreasonably interfered with their right to enjoy and use their property interests.



      7
       … Compare Stevenson, 437 S.W.2d at 406–08. The Stevenson court
held that the evidence was sufficient to support the jury’s finding that a
billboard was a fixture when evidence was presented that the billboard

      extended to a very considerable distance into the air and was 90
      feet in length. It was supported by nine vertical wide flange metal
      columns, each of which were set in concrete to a depth of
      approximately eight feet. The billboard appears to have been a
      most substantial structure very firmly attached to the premises.

Id. at 406.
      8
        … An ownership interest in a leasehold is the legal right to possess that
property for a set period of time. Travis Cent. Appraisal Dist. v. Signature
Flight Support Corp., 140 S.W.3d 833, 841 (Tex. App.—Austin 2004, no pet.).


                                        19
However, there is no constitutional property right to use realty in any certain

way without restriction. City of La Marke v. Braskey, 216 S.W.3d 861, 863

(Tex. App.—Houston [1st Dist.] 2007, pet. denied).       In Braskey, the court

noted that

      use of [the appellee’s] property as a facility for cats is not a
      constitutionally protected vested right because it concerns only the
      way that her property is used, which is not an absolute right [and
      that the] asserted harms—the closing of her facility, the death of
      cats housed at the facility, possible fines levied against her for
      operating the facility, her possible confinement for operating the
      facility, and her expenditure of attorney’s fees to pursue continued
      operation of the facility—all concern the use of her property as a
      facility for cats, which is not a constitutionally protected vested
      right.

Id. at 864; see also in Sterling v. San Antonio Police Dep’t, 94 S.W.3d 790,

794–95    (Tex. App.—San      Antonio    2002, no    pet.) (“Sterling   has no

constitutionally protected property right to lease gambling devices.”); Hang On

III v. Gregg County, 893 S.W.2d 724, 727 (Tex. App.—Texarkana 1995, writ

dism’d by agr.) (“[A] property owner does not acquire a constitutionally

protected right in a property use merely because it began as a conforming use

and is later rendered nonconforming.”); Smith v. Copeland, 787 S.W.2d 420,

422 (Tex. App.—San Antonio 1990, no writ) (holding when considering an

injunction preventing the operation of massage parlors within 1,500 feet of

residents, that “property owners do not acquire a constitutionally protected

vested right in property uses once commenced or in zoning classification once



                                        20
made); Sparten Indus., Inc. v. State, 379 S.W .2d 931, 932 (Tex. Civ.

App.—Eastland 1964, no writ) (holding when considering enforcement of the

Sunday “blue law,” that “it is evident [that] appellant had no vested property

rights entitling them to an injunction against enforcement of the statute).

      Overall, it must be remembered that, whatever value and usage the

property may be put to, the singular use and benefit being foreclosed is that of

an outdoor sign advertising off-premises material. Therefore, the entirety of

Pierce’s ability to use the property he owns, and of Clear Channel’s ability to

use the property it leases, is not wholly curtailed; they may use the property for

myriad purposes, but not for the one specific purpose of erecting the billboard

at issue in this case. Accordingly, the Signers have not alleged facts sufficient

to allege a constitutional taking of property, so they have also not alleged a

valid inverse condemnation claim. See Little-Tex, 39 S.W.3d at 598.

      Citing Harris County v. Progressive National Bank, 93 S.W.3d 381, 383

(Tex. App.—Houston [14th Dist.] 2002, pet. denied), the Signers argue that the

City’s challenge to the trial court’s jurisdiction is an improper attempt to litigate

the merits of their inverse condemnation claim. In Harris County, the court held

that Harris County’s plea to the jurisdiction improperly rested upon unresolved

factual contentions that went directly to the merits of the bank’s suit. Id. at

383–84. However, the court went on to examine the allegations in the bank’s

petition, taking them as true and construing them in the light most favorable to

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the pleader, and held that the petition stated a claim for a constitutional taking

because it alleged that (1) Harris County intentionally sold an automobile on

which the bank held a lien without fulfilling its duty to notify the bank, (2) that

the sale resulted in a taking of the bank’s property, and (3) that such taking

was for public use. Id. at 384.

      Here, we have examined the allegations in the Signers’ petition, as well

as the evidence presented to the trial court, but we reach the opposite

conclusion. The Signers have not stated a valid claim for a constitutional taking

because (1) the TxDOT permit and the billboard are not property interests

subject to compensation and (2) the sign ordinance does not deny them all

economically viable use of their property or unreasonably interfere with their

right to use and enjoy the property; therefore, no regulatory taking is alleged.

Accordingly, because the Signers have not stated a valid inverse condemnation

claim, governmental immunity applies, and the trial court should have granted

the City’s plea to the jurisdiction on the inverse condemnation claim. See Bell,

146 S.W.3d at 825. We sustain the City’s second issue.9




      9
       … Having sustained the City’s second issue, we need not address its first
issue, in which it claims that the Signers have no standing to sue for inverse
condemnation. See T EX. R. A PP. P. 47.1.

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                                  VI. Conclusion

      Having    sustained   the   City’s   second   issue   and   concluded   that

governmental immunity applies to the Signers’ inverse condemnation claim, we

reverse that part of the trial court’s order denying the City’s plea to the

jurisdiction with regard to the inverse condemnation and deprivation of property

claims and render judgment dismissing those claims.          See T EX. R. A PP. P.

43.2(c).    However, having overruled the City’s third and fourth issues

challenging the trial court’s jurisdiction over the Signers’ declaratory judgment

causes of action, we affirm that part of the trial court’s order denying the City’s

plea to the jurisdiction with regard to the Signers’ declaratory judgment claims.

See T EX. R. A PP. P. 43.2(a).




                                             BOB MCCOY
                                             JUSTICE

PANEL A:     CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

DELIVERED: May 15, 2008




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