                                  IN THE
                          TENTH COURT OF APPEALS

                               No. 10-10-00092-CV

LOWER COLORADO RIVER AUTHORITY,
                                                         Appellant
v.

JOSEPH ROBERT RILEY,
                                                         Appellee


                          From the 414th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-2865-5


                          MEMORANDUM OPINION

      Joseph Robert Riley owns property in McLennan County. In 2007, he executed a

“Deed of Easement” to Sandy Creek Energy Associates, L.P. (SCEA) authorizing the

construction and installation of a water pipeline to supply water to an electric

generation project. Riley filed a lawsuit against the Lower Colorado River Authority

(LCRA) and other entities regarding the easement. He alleges in his petition that SCEA

assigned an interest in the easement to LCRA without Riley’s approval in violation of

the “Deed of Easement.”
        LCRA filed a plea to the jurisdiction asserting governmental immunity as to all

of Riley’s claims except inverse condemnation. The trial court granted the plea to the

jurisdiction on Riley’s claims against LCRA “for trespass, exemplary damages and

attorney’s fees,” but denied the plea as to Riley’s claim for declaratory judgment and

suit to quiet title. LCRA appeals. Because the trial court erred in denying LCRA’s plea

to the jurisdiction regarding Riley’s claim for a declaratory judgment and to quiet title,

the trial court’s order as to those claims is reversed and this proceeding is remanded to

the trial court to order dismissal of Riley’s claim for a declaratory judgment and suit to

quiet title.

                                          IMMUNITY

        Sovereign immunity protects the State and its various divisions, such as agencies

and boards, from suit and liability, whereas governmental immunity provides similar

protection to the political subdivisions of the state, such as counties, cities, and school

districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). No one disputes

that LCRA is a political subdivision of the State and is entitled to governmental

immunity. See Hodge v. Lower Colorado River Authority, 163 S.W.2d 855, 857 (Tex. Civ.

App.—Austin 1942 writ dism’d by agr.); TEX. SPEC. DIST. LOCAL LAWS CODE ANN. §§

8503.001-004 (West Pamp. 2011).

        Sovereign immunity and governmental immunity are common law doctrines,

but the waiver of immunity has traditionally been left to the Legislature, assuming it to

Lower Colorado River Authority v. Riley                                              Page 2
be "better suited to balance the conflicting policy issues associated with waving [sic]

immunity." Travis Cent. Appraisal Dist., 342 S.W.3d at 58 (quoting Wichita Falls State

Hosp., 106 S.W.3d at 695). When dealing with these immunities, the Legislature has

been required to express its intent to waive immunity clearly and unambiguously. Id.

(citing Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) and

TEX. GOV'T CODE ANN. § 311.034 (West Supp. 2011) (codifying the clear and

unambiguous standard)).

       An order which grants or denies a plea questioning the trial court’s jurisdiction is

reviewed de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). When a plea to

the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts

that affirmatively demonstrate the court's jurisdiction to hear the case. Tex. Dep't of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings

liberally in favor of the plaintiffs and look to the pleaders' intent. Id.

       In one issue, LCRA contends the trial court erred in partially denying LCRA’s

plea to the jurisdiction to Riley’s lawsuit.

                                  IMMUNITY UNDER THE DJA

       LCRA argues that Riley’s cause of action under the Declaratory Judgment Act,

TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 et seq. (West 2008), is essentially a suit to

determine title to real property for which immunity is not waived.




Lower Colorado River Authority v. Riley                                              Page 3
       LCRA is correct that generally, a trespass to try title claim is the exclusive

method in Texas for adjudicating disputed claims of title to real property. Sawyer Trust,

2011 Tex. LEXIS 640, *9; see TEX. PROP. CODE ANN. § 22.001(a) (West 2000) ("A trespass to

try title action is the method of determining title to lands, tenements, or other real

property."). Further, a trespass to try title claim is barred by sovereign immunity,

absent the legislature’s waiver of immunity. See id. But, as will be discussed in more

detail below, whether Riley’s DJA claim is actually a suit for a trespass to try title is

immaterial because immunity has not been waived for Riley’s claim.

Riley’s DJA claim

       In his first amended petition, and pursuant to his DJA claim, Riley requests a

judgment declaring that LCRA has (1) no right or interest in and to the Deed of

Easement between Riley and SCEA; (2) no right of use of Riley’s property described in

the Deed of Easement; (3) no right of use of the pipeline installed in the Easement; and

(4) no right to transport water through the pipeline installed on Riley’s property as

described in the Deed of Easement. On appeal, Riley asserts several reasons why the

trial court did not err in denying LCRA’s plea to the jurisdiction.

       A Suit under the DJA is Proper

       Riley initially argues that the DJA is the proper vehicle by which to determine

the validity of an easement. He relies on Robertson v. City of Austin, and Mission v.

Popplewell in support of his argument. City of Mission v. Popplewell, 294 S.W.2d 712 (Tex.


Lower Colorado River Authority v. Riley                                             Page 4
1956); Roberson v. City of Austin, 157 S.W.3d 130 (Tex. App.—Austin 2005, pet. denied).

Riley may be correct that between private parties the DJA is a proper vehicle by which

to determine the validity of an easement. However, his argument is not dispositive of

this case, and it is an issue we need not decide today.

       In this case, Riley is not challenging the validity of the easement. The easement

was between Riley and SCEA, and Riley appears to have no quarrel with that

arrangement. His complaint appears to be about SCEA’s assignment to LCRA and

LCRA’s interest in the easement, LCRA’s use of his property, and LCRA’s use of the

pipeline installed on the easement. Further, neither of the cases cited by Riley addresses

whether sovereign immunity would bar the suit.

       Most importantly, however, while the DJA waives sovereign immunity for

certain claims, such as challenges to the validity of a municipal ordinance or statute, it is

not a general waiver of sovereign immunity. Tex. Parks & Wildlife Dep't v. Sawyer Trust,

No. 07-0945, ___ S.W.3d ___, 2011 Tex. LEXIS 640, *7 (Tex. 2011) (citing TEX. CIV. PRAC.

& REM. CODE ANN. § 37.006(b) (West 2008); City of El Paso v. Heinrich, 284 S.W.3d 366,

373 n.6 (Tex. 2009)). The DJA does not alter or enlarge a trial court's jurisdiction; rather,

it is "merely a procedural device for deciding cases already within a court's

jurisdiction." Sawyer Trust, 2011 Tex. LEXIS 640, *7-8 (quoting Tex. Ass'n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); Heinrich, 284 S.W.3d at 370. And a

litigant's request for declaratory relief does not alter a suit's underlying nature.


Lower Colorado River Authority v. Riley                                                Page 5
Heinrich, 284 S.W.3d at 370. Accordingly, sovereign immunity will bar an otherwise

proper DJA suit that has the effect of establishing a right to relief against the State for

which the legislature has not waived immunity. Sawyer Trust, 2011 Tex. LEXIS 640, *8.

       In his underlying suit, Riley does not challenge the validity of a municipal

ordinance or statute. Thus, sovereign immunity is not waived simply by alleging a

cause of action otherwise proper under the DJA.

       Riley also argues, however, that the DJA waives immunity because it requires

LCRA to be made a party to his suit pursuant to section 37.006(a). In that provision,

‚<all persons who have or claim any interest that would be affected by the declaration

must be made parties<.‛ TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(a) (West 2008).

Riley claims that the DJA includes a very broad definition of ‚person‛ which would

include LCRA. He cites to the Texas Supreme Court’s opinion in Leeper for support of

this proposition. See Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994).

       His reliance on the statute and Leeper is misplaced. A person, for the purposes of

the DJA, is defined as ‚an individual, partnership, joint-stock company, unincorporated

association or society, or municipal or other corporation of any character.‛ TEX. CIV.

PRAC. & REM. CODE ANN. § 37.006(a) (West 2008). LCRA is a political subdivision of the

State, see Hodge v. Lower Colorado River Authority, 163 S.W.2d 855, 857 (Tex. Civ. App.—

Austin 1942 writ dism’d by agr.); TEX. SPEC. DIST. LOCAL LAWS CODE ANN. §§ 8503.001-

004 (West Pamp. 2011), and we need not decide today whether it could be included as


Lower Colorado River Authority v. Riley                                              Page 6
an ‚other corporation of any character‛ in the DJA’s definition of ‚person." Leeper does

not assist Riley because Leeper involved the express waiver of immunity authorized in

section 37.006(b), those situations where a private person is expressly challenging an

ordinance or statute. Leeper, 893 S.W.2d at 446. It does not stand for the proposition

that subsection (a) waives a governmental agency’s immunity.

       Waiver by Other Means

       Riley argues that immunity has also been waived through other means or that

immunity is otherwise inapplicable to his suit.

               Texas Constitution and Local Government Code

       Riley contends that immunity is waived by article I, sections 17 and 19 of the

Texas Constitution and by section 271.152 of the Local Government Code.

       Article I, section 17, commonly referred to as the ‚takings clause,‛ requires the

State or a political subdivision of the State to provide ‚adequate compensation‛ when

taking private property for public use.      TEX. CONST. art. I, § 17.     ‚Governmental

immunity ‘does not shield the State from an action for compensation under the takings

clause.’‛ Sw. Bell Tel., L.P. v. Harris County Toll Rd. Auth., 282 S.W.3d 59, 61 (Tex. 2009)

(quoting Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)).

This principle necessarily extends to inverse condemnation claims. See id. Further,

Article I, section 19 prohibits the deprivation of property by the State without due

course of law. TEX. CONST. art. I, § 19.


Lower Colorado River Authority v. Riley                                               Page 7
       Riley’s request for declaratory relief does not seek a declaration that LCRA has

taken his property without adequate compensation or that LCRA has deprived him of

property without due course of law, and we will not infer such claims. See Tex. Parks &

Wildlife Dep't v. Sawyer Trust, No. 07-0945, ___ S.W.3d ___, 2011 Tex. LEXIS 640, *19

(Tex. 2011). Riley’s inverse condemnation claim was not dismissed by the trial court,

and LCRA does not challenge the trial court’s jurisdiction over Riley’s inverse

condemnation claim.

       Section 271.152 of the Local Government Code provides for a waiver of

immunity from suit for a breach of contract claim against a local governmental entity

that is a party to a contract for goods or services.   See TEX. LOC. GOV’T. CODE ANN. §§

271.151(2), 271.152 (West 2005); Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320

S.W.3d 829, 838 (2010). As discussed above, Riley’s contract and deed was with SCEA,

not LCRA. Because Riley does not have a contract with LCRA, governmental immunity

for a suit filed against LCRA by Riley is not waived by section 271.152.

               Declaratory Relief Only

       Riley next contends that immunity does not apply when liability will not be

imposed on the governmental entity.         He cites numerous cases to support this

proposition.    However, all but one of the cases relied on do not support Riley’s

contention, and that one case is distinguishable.




Lower Colorado River Authority v. Riley                                             Page 8
       The Supreme Court has used rather general language which seems to

differentiate between suits for money damages and those seeking a declaration of

rights, offering apparent support to Riley’s assertion that, if a suit seeks only declaratory

relief and not monetary damages, the suit is not barred by governmental immunity. For

example, in Federal Sign v. Texas Southern University, the Court stated, ‚*W+e distinguish

suits to determine a party’s rights against the State from suits seeking damages. A party

can maintain a suit to determine its rights without legislative permission.‛ Federal Sign

v. Texas Southern University, 951 S.W.2d 401, 404 (Tex. 1997). But a closer examination of

Federal Sign reveals that the type of suit which does not require ‚legislative permission‛

is one brought ‚against a state official who has acted without legal or statutory

authority.‛ Id.; accord City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); Tex.

Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). This is

referred to as the ‚ultra vires‛ exception to sovereign immunity. See Tex. DOT v. Sefzik,

No. 08-0943, ___ S.W.3d ___, 2011 Tex. LEXIS 801, *5 (Tex. 2011). Riley has neither filed

an ultra vires claim nor argued that his suit is an ultra vires claim. We note that Riley

has sued LCRA as an entity; he has not sued its board members for ultra vires acts.

       Riley also cites Houston Municipal Employees Pension System v. Ferrell to support

his contention that a suit for declaratory relief against a governmental entity does not

implicate sovereign immunity if the plaintiff expressly denies that he seeks monetary

damages. Houston Municipal Employees Pension System v. Ferrell, 177 S.W.3d 502 (Tex.


Lower Colorado River Authority v. Riley                                                Page 9
App.—Houston [1st Dist.] 2005), rev’d on other grounds, 248 S.W.3d 151 (Tex. 2007). But

in Ferrell, the plaintiffs sought declaratory relief determining whether the pension

system was complying with article 6423h of the Revised Civil Statutes with regard to

benefits. Id. at 510. They alleged that they were ‚seeking to force government officials

to follow the law or quit acting outside the scope of their authority.‛ Id. Riley is not

seeking to force government officials to follow the law or to stop acting outside the

scope of their authority. In other words, Riling is not suing LCRA officials for any ultra

vires acts.

       For further support, Riley also cites the Eighth Court’s decision in City of El Paso

v. Heinrich, 198 S.W.3d 400 (Tex. App.—El Paso 2006), rev’d in part on other grounds, 284

S.W.3d 366 (Tex. 2009).       In Heinrich, the Eighth Court acknowledged a distinction

‚between suits in which only a declaration of rights against the State is sought and suits

seeking money damages against the State.‛ Id. at 406. But in the same manner as the

plaintiffs in Ferrell, Mrs. Heinrich alleged that her suit was brought ‚to correct illegal,

unlawful, unauthorized, ultra vires, and unconstitutional acts of the defendants.‛ Id.

Specifically, she alleged that the City was violating article 6243b of the Revised Civil

Statutes in calculating her benefits. Id. at 403. This is not the substance of Riley’s suit.

       Next, Riley cites the Thirteenth Court’s decision in City of San Benito v. Ebarb, 88

S.W.3d 711 (Tex. App.—Corpus Christi 2002, pet. denied). There, the Thirteenth Court

expressly recognized that a plaintiff may file ‚a suit seeking declaratory relief against


Lower Colorado River Authority v. Riley                                                 Page 10
state officials who allegedly act without legal or statutory authority‛ so long as the

plaintiff does not also seek monetary damages.‛ Id. at 721 (emphasis added). The court

held that this suit was barred by governmental immunity because the plaintiffs sought

money damages. Id. at 724. Again, Riley’s suit is not against state officials.

           Finally, Riley relies on the opinion in Hartford Casualty Insurance Co. v. Price, 435 F.

Supp. 2d 566 (N.D. Tex. 2006). In that case, the insurance company filed suit against

Price, a tax assessor-collector, seeking a declaration that it was not liable under a surety

bond or an insurance policy for claims filed by Price on behalf of Tarrant County. Id. at

569. The court denied Price’s motion for summary judgment premised in part on

governmental immunity. Id. at 575.

           The Hartford decision does not appear consistent with the decisions of the

Supreme Court of Texas which have held that governmental immunity is not implicated

in a suit against government officials when they are alleged to have acted in violation of

a statutory or constitutional provision. See Heinrich, 284 S.W.3d at 372-73; IT-Davy, 74

S.W.3d at 855; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945). Thus, we

decline to follow it. Further, Hartford is distinguishable because the insurance company

filed suit against a government official rather than against the governmental entity. See

Heinrich, 284 S.W.3d at 372-73 (‚*A+s a technical matter, the governmental entities

themselves—as opposed to their officers in their official capacity—remain immune from

suit.‛).


Lower Colorado River Authority v. Riley                                                    Page 11
       In summary, Riley does not allege that LCRA is acting in violation of a statutory

or constitutional provision. Cf. Heinrich, 284 S.W.3d at 372-73; Ferrell, 177 S.W.3d at 510;

Ebarb, 88 S.W.3d at 721. Even if he did make such a claim, the suit should be filed

against officials of LCRA rather than LCRA itself. See Heinrich, 284 S.W.3d at 372-73.

Therefore, the cases he relies on do not support his argument that immunity does not

apply to his suit under the DJA.

               Control of State Action

       Riley also contends that his request for declaratory relief does not implicate

governmental immunity because he does not seek to control LCRA’s lawful actions. Cf.

Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855-56 (Tex. 2002) (suits

which ‚attempt to control state action by imposing liability on the State‛ are barred by

sovereign immunity).

       The Supreme Court described suits which ‚attempt to control state action‛ as

suits ‚seeking to establish a contract's validity, to enforce performance under a contract,

or to impose contractual liabilities.‛ Id. ‚The Texas Supreme Court has historically

regarded these immunity principles as also barring suits to cancel or nullify a contract

made for the benefit of the state.‛ Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105,

120 (Tex. App.—Austin 2007, no pet.) (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308

S.W.2d 838, 841 (1958)). Riley’s request for declaratory relief seems to fit this description




Lower Colorado River Authority v. Riley                                                Page 12
because he seeks to ‚nullify‛ SCEA’s apparent assignment of an interest in the easement

to LCRA.

       If we accept Riley’s factual allegations as true, LCRA owns an interest in the

pipeline easement and uses that easement to transport water across Riley’s property to

the site of the power plant.        Riley seeks a declaration that LCRA’s interest in the

easement is invalid and seeks to prevent LCRA from transporting water across his

property via this easement. His request for declaratory relief is an indirect attempt to

enforce the anti-assignment clause in the pipeline easement against LCRA. This request

for declaratory relief necessarily is an attempt to control LCRA’s action. See id.; see also

Smith v. Lutz, 149 S.W.3d 752, 760 (Tex. App.—Austin 2004, no pet.) (‚when the State

acts under a color of right to withhold property acquired by it under a contract, a suit

seeking declaratory relief concerning the ownership, possession, or access to that

property is a suit based in contract, for which legislative consent must be obtained‛).

       In summary, because Riley’s request for declaratory relief seeks to control LCRA’s

actions, governmental immunity is implicated by this claim, regardless of whether Riley

disclaims any intent to seek monetary damages from LCRA. See Bexar Metro. Water Dist.

v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 28 (Tex. App.—San Antonio 2006, pet.

dism’d) (‚In short, the relevant distinction is not between suits seeking equitable relief

and those seeking money damages, as the Joint Venture argues, but between suits




Lower Colorado River Authority v. Riley                                              Page 13
seeking to compel state officers to act within their official capacity and suits seeking to

control state action by imposing liability on the State.‛).

Conclusion

       Accordingly, for the reasons stated above, the trial court erred in denying LCRA’s

plea to the jurisdiction as to Riley’s claim for a declaratory judgment.

                                      SUIT TO QUIET TITLE

       The trial court also denied LCRA’s plea to the jurisdiction with respect to Riley’s

suit to quiet title to his property regarding any attempted assignment by SCEA of an

interest in the pipeline easement. LCRA argues that immunity is also not waived for

this claim.   Pursuant to his quiet title claim, Riley asks for an order to quiet title

declaring the assignment, by which SCEA assigned an 11.4% interest in the Deed of

Easement to LCRA, null and void.

       Riley’s request to quiet title constitutes a ‚suit for land‛ within the meaning of

Lain and Sawyer Trust. Tex. Parks & Wildlife Dep't v. Sawyer Trust, No. 07-0945, ___

S.W.3d ___, 2011 Tex. LEXIS 640, *11-12 (Tex. 2011); State v. Lain, 349 S.W.2d 579, 582

(Tex. 1961). Thus, this cause of action, insofar as it is asserted against LCRA, is barred

by governmental immunity. See Sawyer Trust, 2011 Tex. LEXIS 640 *13; Lain, 349 S.W.2d

at 582. Riley has not alleged any waiver of immunity for his suit to quiet title, and the

trial court erred in denying LCRA’s plea to the jurisdiction as to this claim.




Lower Colorado River Authority v. Riley                                             Page 14
                                          CONCLUSION

       Because the trial court erred in denying LCRA’s plea to the jurisdiction as to

Riley’s claim for a declaratory judgment and his suit to quiet title, LCRA’s sole issue is

sustained. Accordingly, we reverse the portion of the trial court’s order which states:

‚The remainder of Plaintiff’s claims against Defendant Lower Colorado River Authority

are not affected by this Order and remain pending‛ and remand this proceeding to the

trial court to order Riley’s claim against LCRA for a declaratory judgment and his suit to

quiet title against LCRA be dismissed.




                                            TOM GRAY
                                            Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed December 28, 2011
[CV06]




Lower Colorado River Authority v. Riley                                            Page 15
