                    NUMBER 13-12-00215-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

KEITH REDBURN,                                         Appellant,

                               v.

CHARMELLE GARRETT,
INDIVIDUALLY AND AS CITY MANAGER
OF THE CITY OF VICTORIA, TEXAS,
AND LYNN SHORT, INDIVIDUALLY AND
AS DIRECTOR OF PUBLIC WORKS OF
THE CITY OF VICTORIA, TEXAS, AND
THE CITY OF VICTORIA, TEXAS,                           Appellees.


             On appeal from the 377th District Court
                   of Victoria County, Texas.


                 MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Justice Longoria
       By two issues, appellant, Keith Redburn, appeals the trial court’s order (1)

granting a plea to the jurisdiction filed by appellees, Charmelle Garrett, individually and

as the City Manager of the City of Victoria, Texas (“the City”), Lynn Short, individually

and as the Director of Public Works for the City, and the City, and (2) dismissing

appellant’s claims against appellees with prejudice. We reverse and remand.

                                      I. BACKGROUND

       This is a property dispute involving what the City alleges is a public improvement.

In 2004, appellant purchased property located at 902 West Stayton Street, consisting of

two tracts of land with a tributary between Tracts 1 and 2. According to the City, at the

time appellant purchased the property, there was a pre-existing public improvement

(specifically, a concrete culvert) that was visible and apparent. The purported public

improvement is an outlet that conveys water from underground to above ground and

into a naturally-flowing tributary that exists on appellant’s property. The City alleges that

the culvert and the natural tributary are part of the City’s Municipal Separate Storm

Sewer System (“MS4”), which acts as a filter and extracts contaminants and pollutants

before the toxins reach potable water. The City alleges that, even without the public

improvement, appellant’s downstream property is burdened by naturally-flowing water.

       In 2006, appellant complained to the City about debris and water flowing onto his

property. In 2011, appellant plugged the culvert with five tons of concrete. The City

advised appellant that he was in violation of the City’s MS4 Ordinance, but the plug

remained. Subsequently, appellant filed suit against Garrett and Short for injunctive

relief to enjoin them from entering his property to repair the storm-water culvert on the




                                             2
basis that the repairs would result in the City’s alleged trespassing by virtue of

discharged storm water.

      The City filed an answer on behalf of Garrett and Short. The City also filed a

plea to the jurisdiction, requesting dismissal of the individual employees in accordance

with section 101.106 of the Texas Civil Practice and Remedies Code. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.106(e), (f) (West 2011). In addition, the City filed a

petition in intervention, alleging three cross-claims against appellant:        (1) an

enforcement action for statutory penalties in the amount of $5,000 per day pursuant to

Chapter 54 of the Texas Local Government Code, in addition to a request for court

costs and attorney’s fees, see TEX. LOC. GOV’T CODE ANN. §§ 54.012, 54.014, 54.015,

54.107 (West 2008); (2) a claim for temporary and permanent injunctive relief to require

appellant to remove the plug and to prohibit future plugging; and (3) an action for

declaratory judgment with respect to the City’s easement and the public improvement,

see TEX. CIV. PRAC. & REM. CODE ANN. § 37.003 (West 2008).

      The trial court held an evidentiary hearing on the City’s request for a temporary

injunction. Afterward, appellant was ordered to remove the concrete plug within seven

days of the court’s order.   The parties were also ordered to mediation.       Although

appellant removed the plug, the mediation was unsuccessful.

      Subsequently, appellant amended his petition to name the City as a defendant

and to add an action for declaratory judgment.        Appellant alleged that the City

constructed the culvert on and next to his property and that, periodically, the culvert

drains large amounts of storm water onto his property, causing significant and

irreparable damage.     According to appellant, this constitutes an illegal trespass,



                                           3
nuisance, and violation of section 11.086 of the Texas Water Code. See TEX. W ATER

CODE ANN. § 11.086 (West 2008).

      Thereafter, the City supplemented its plea to the jurisdiction, arguing that

appellant could not establish subject matter jurisdiction for four reasons: (1) sovereign

immunity had not been clearly and unambiguously waived under Chapter 11 of the

Texas Water Code and doing so would violate public policy; (2) a declaratory judgment

action could not be used when subject matter jurisdiction does not exist for the claim

under the water code; (3) the City is immune from intentional tort claims pursuant to

section 101.057(2) of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC.

& REM. CODE ANN. § 101.057(2) (West 2011); and (4) the Texas Supreme Court’s

decision in City of El Paso v. Heinrich prohibits claimants, such as appellant, from

seeking to use the judiciary to control governmental functions, see City of El Paso v.

Heinrich, 284 S.W.3d 366 (Tex. 2009).

      In addition, appellees argued that appellant could not establish subject matter

jurisdiction with regard to the claims against Garrett and Short for two reasons: (1)

claims against governmental employees in their individual capacities are barred by

section 101.106 of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(e), (f); and (2) appellant has not alleged that the employees

committed any act or omission in their individual capacity.

      In his response, appellant made three arguments. First, a governmental unit that

voluntarily intervenes in a suit waives immunity. Second, the City’s immunity is waived

under the Uniform Declaratory Judgment Act. And third, Garrett and Short can be sued




                                            4
without the City because the threatened acts were illegal and therefore not official acts

of the City.

       After a hearing, the trial court found in favor of the City. The court dismissed

appellant’s claims against Garrett, Short, and the City, leaving the City’s cross-claims

against appellant as the only claims pending in the suit.            Thereafter, the City

supplemented its cross-claims to allege a claim of easement by implied dedication to

the extent the culvert extends onto appellant’s property and the tributary.           This

interlocutory appeal ensued. See id. § 51.014(a)(8) (West Supp. 2011).

                                       II. ANALYSIS

       In his first issue, appellant contends that the trial court erred in granting

appellees’ plea and supplemental plea to the jurisdiction. In his second issue, appellant

contends that the trial court erred in dismissing his claims without giving him an

opportunity to amend his pleadings.

A. Standard of Review

       A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000), overruled on other

grounds by Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). We

review the record de novo to determine whether the trial court has subject matter

jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “We

consider only the evidence pertinent to the jurisdictional inquiry and do not weigh the

merits.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Also, we

construe the pleadings in favor of the plaintiff, accepting all his allegations as true.

Bland Indep. Sch. Dist., 34 S.W.3d at 555. To prevail, the defense must show that,



                                            5
even accepting all of the plaintiff’s allegations as true, an incurable jurisdictional defect

remains on the face of the pleadings that deprives the trial court of subject matter

jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston

[14th Dist.] 2005, no pet.).

B. Applicable Law

       In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction

over lawsuits in which the State or certain governmental units have been sued unless

the State consents to suit.       Miranda, 133 S.W.3d at 224.           In a suit against a

governmental unit, the 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). We assume the truth of the jurisdictional facts alleged in the

pleadings unless the defendant presents evidence to negate their existence. Miranda,

133 S.W.3d at 226–27. If a plea to the jurisdiction challenges the jurisdictional facts, we

consider relevant evidence submitted by the parties to resolve the jurisdictional issues

raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133

S.W.3d at 227); see Bland Indep. Sch. Dist, 34 S.W.3d at 555. If that evidence creates

a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 298

S.W.3d at 622; Miranda, 133 S.W.3d at 227–28. “However, if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules

on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228. After

the defendant “asserts and supports with evidence that the trial court lacks subject

matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits

and subject matter jurisdiction are intertwined, to show that there is a disputed material



                                              6
fact regarding the jurisdictional issue.” Id. This standard “generally mirrors” that of a

traditional motion for summary judgment. Id. When reviewing a plea to the jurisdiction

in which the pleading requirement has been met and evidence has been submitted to

support the plea that implicates the merits of the case, we take as true all evidence

favorable to the non-movant. Id.

C. Dismissal of Appellant’s Claims against Garrett and Short

      We begin with the dismissal of appellant’s claims against Garrett and Short.

Appellees argue that the trial court properly dismissed these claims because, under

section 101.106 of the Texas Civil Practice and Remedies Code, the City is the only

proper defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106.

      “The Tort Claims Act’s election scheme is intended to protect governmental

employees by favoring their early dismissal when a claim regarding the same subject

matter is also made against the governmental employer.” Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). As the Texas Supreme Court has

explained:

      Under the Tort Claims Act’s election scheme, recovery against an
      individual employee is barred and may be sought against the
      governmental unit only in three instances: (1) when suit is filed against the
      governmental unit only, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(a);
      (2) when suit is filed against both the governmental unit and its employee,
      id. § 101.106(e); or (3) when suit is filed against an employee whose
      conduct was within the scope of his or her employment and the suit could
      have been brought against the governmental unit, id. § 101.106(f).
Garcia, 253 S.W.3d at 657. “When suit is filed against the employee, recovery against

the governmental unit regarding the same subject matter is barred unless the

governmental unit consents to suit.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §

101.106(b)).



                                           7
        According to appellees, subsection (e) applies to this case. See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.106(e). Subsection (e) provides: “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.

Appellees argue that the trial court correctly dismissed the claims against Garrett and

Short based on the City’s request under subsection (e). See id.

        Initially, we note that appellant did not originally file suit against the City.1

Although appellant later named the City as a defendant in his amended petition, it is the

original petition that controls for purposes of the election-of-remedies provisions of

section 101.106(e). See City of Webster v. Myers, 360 S.W.3d 51, 58 n.4 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied) (“[W]e must look to Myers's Original Petition,

rather than his amended petition, in deciding whether a tort claim was brought against

the City for purposes of the section 101.106(e) analysis.”); Brown v. Xie, 260 S.W.3d

118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concluding that plaintiff’s

original petition, not amended petition, is proper pleading to scrutinize in determining

whether dismissal under section 101.106(e) is appropriate). Thus, we conclude that

subsection (e) does not apply to this case. Accordingly, the trial court could not properly

dismiss appellant’s claims against Garrett and Short based on the City’s request under

subsection (e).




        1
           See Tex. Dep’t of Pub. Safety v. Deakyne, 371 S.W.3d 303, 309 (Tex. App.—San Antonio 2012,
no pet.) (“If the plaintiff initially sues both the governmental unit and the employee (whether individually or
in the scope of employment) and the governmental unit moves to dismiss its employee, subsection (e)
forces an election: the employee becomes the non-elected defendant and is dismissed; the remaining
defendant—the governmental unit—is the elected defendant.”).

                                                      8
         In their supplemental plea to the jurisdiction, appellees also argued that dismissal

was appropriate pursuant to subsection (f). See TEX. CIV. PRAC. & REM. CODE ANN. §

101.106(f). Subsection (f) provides as follows:

         If a suit is filed against an employee of a governmental unit based on
         conduct within the general scope of that employee’s employment and if it
         could have been brought under this chapter against the governmental unit,
         the suit is considered to be against the employee in the employee’s official
         capacity only. On the employee’s motion, the suit against the employee
         shall be dismissed unless the plaintiff files amended pleadings dismissing
         the employee and naming the governmental unit as defendant on or
         before the 30th day after the date the motion is filed.

Id.

         The Texas Supreme Court has explained that there are two conditions to

subsection (f). Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). First, the

employee acted within the general scope of his employment. Id. Second, “suit could

have been brought under the Texas Tort Claims Act — that is, [the] claim is in tort and

not under another statute that independently waives immunity.” Id. If both conditions

are met, the suit “is considered to be against the employee in the employee’s official

capacity only, and the plaintiff must promptly dismiss the employee and sue the

government instead.” Id.

         The Tort Claims Act defines “scope of employment” as “the performance for a

governmental unit of the duties of an employee’s office or employment and includes

being in or about the performance of a task lawfully assigned to an employee by

competent authority.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp.

2011).     In their supplemental plea to the jurisdiction, appellees argued that “the

pleadings undeniably reveal that [appellant’s] suit is based on alleged conduct that . . .

is within the general scope of the named employees’ respective employment.”

                                              9
Appellees offered no evidence to substantiate their contention         See Univ. of Tex.

Southwestern Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 551 (Tex. 2010) (“The

employee must show that the suit was filed against him based on conduct within the

general scope of his employment.”). Therefore, we conclude that appellees did not

establish their entitlement to dismissal pursuant to subsection (f).      See Kelemen v.

Elliott, 260 S.W.3d 518, 524 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (refusing to

dismiss the officer because he failed to meet the first prong of his burden of proof, that

is, he failed to show that the alleged assault of a fellow officer was within the general

scope of his employment with the city). Accordingly, the trial court could not properly

dismiss appellant’s claims against Garrett and Short based on subsection (f).

       Finally, in their plea to the jurisdiction, appellees sought dismissal “because the

two individuals have committed no acts or omissions that places [sic] them before the

Court in their individual capacities.” According to appellees’ plea to the jurisdiction, “to

maintain an ultra vires claim against an official in his individual capacity, one must [not]

complain of the individual’s exercise of discretion . . . [but rather must] allege and prove

the individual acted without legal authority or failed to perform a purely ministerial act.”

In their appellate brief, appellees acknowledge that appellant “has pleaded that

defendants must be enjoined from illegally trespassing.”        In other words, appellant

complains about Garrett and Short entering his property without legal authority. See

Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 389–90 (Tex. 2011)

(holding that suit to enjoin governmental entity from entering plaintiff’s property without

authority “is an ultra vires [claim] that must be brought against the governmental official

and not the State”).    This falls within the ultra vires exception.    See Heinrich, 284



                                            10
S.W.3d at 372–73 (“To fall within this ultra vires exception, a suit must not complain of a

government officer’s exercise of discretion, but rather must allege, and ultimately prove,

that the officer acted without legal authority or failed to perform a purely ministerial

act.”). Therefore, the trial court could not properly dismiss appellant’s claims against

Garrett and Short based on appellees’ contention that the claims were not ultra vires.

       In sum, we have reviewed each of the three grounds on which appellees

requested dismissal of appellant’s claims against Garrett and Short and have concluded

that the trial court could not properly dismiss appellant’s claims based on any of the

three grounds.    Accordingly, we conclude that the trial court erred in dismissing

appellant’s claims against Garrett and Short.

D. Dismissal of Appellant’s Claims against the City

       Next, we consider the dismissal of appellant’s claims against the City. In his

amended petition, appellant alleges causes of action against the City for declaratory

judgment and injunctive relief. See id. at 377 (“[c]onsidering the nature of the liability

sought to be imposed, and construing [plaintiff’s] pleadings liberally”). As set forth more

fully below, the “real substance” of appellant’s claims involves a suit for land.      See

Sawyer Trust, 354 S.W.3d at 390 (“The central test for determining jurisdiction is

whether the ‘real substance’ of the plaintiff's claims falls within the scope of a waiver of

immunity from suit.”). Appellant seeks to quiet title to his property and to establish his

exclusive right of possession.     See id. at 389–90 (holding that plaintiff’s claims to

establish ownership of property through an action for declaratory judgment and to obtain

injunctive relief to prevent a governmental entity from entering the property are “in

substance [a suit] to determine title to land”). Appellant also seeks injunctive relief to



                                            11
enjoin the City from trespassing, which is an intentional tort. Hidalgo County v. Dyer,

358 S.W.3d 698, 704 (Tex. App.—Corpus Christi 2011, no pet.) (“The intentional tort of

trespass involves the intent to commit an act which violates a property right or is

practically certain to have that effect, although the actor may not know the act he

intends to commit is a violation of a property right.”). Thus, it appears that appellant’s

claims against the City are barred by immunity. See Sawyer Trust, 354 S.W.3d at 388

(“When in this state the sovereign is made a party defendant to a suit for land, without

legislative consent, its plea to the jurisdiction of the court based on sovereign immunity

should be sustained”); Dyer, 358 S.W.3d at 704–05 (“The Department and the County

argue that immunity from suit has not been waived for Dyer’s trespass claim because

Dyer has alleged an intentional tort for which the Texas Tort Claims Act does not waive

immunity. We agree.”); Harris County v. Cypress, 50 S.W.3d 551, 554 (Tex. App.—

Houston [14th Dist.] 2001, no pet.) (“Appellee’s Second Amended Petition clearly

asserts that appellant’s dumping of hazardous materials on its property was intended[;

thus, it] states a cause of action for intentional trespass[ for which immunity has not

been waived.]”).

       However, because the City filed a petition in intervention, in which it alleged

cross-claims against appellant for statutory penalties, declaratory relief and injunctive

relief, along with a request for attorney’s fees and court costs, it is nonetheless possible

that appellant’s claims are not barred by immunity.         See Sweeny Cmty. Hosp. v.

Mendez, 226 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“This

Court likewise has held that by asserting compulsory counterclaims in response to a suit

brought by a company, the governmental entity waived immunity from suit for the



                                            12
company’s claims for the intentional torts of fraud and conspiracy because they were

germane to the matter in controversy.”). As the Texas Supreme Court has recently

explained:

       Once a governmental entity has asserted an affirmative claim for
       monetary relief, it must participate in the litigation process as an ordinary
       litigant as to that claim. And when a governmental entity asserts
       affirmative claims for monetary recovery, whether by filing suit or by
       counterclaim, the trial court acquires jurisdiction over the entity’s claims
       and certain offsetting, defensive claims asserted against the entity. That
       is not because the entity effected a change in its immunity by filing a
       claim, but because the judiciary has abrogated the entity’s common law
       immunity from suit as to certain offsetting claims.

City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). Thus, we will examine the

City’s affirmative claims for relief to determine the extent to which, if at all, the trial court

acquired jurisdiction over appellant’s claims against the City.

       As noted above, the City’s cross-claims against appellant include an enforcement

action under Chapter 54 of the Texas Local Government Code. See TEX. LOC. GOV’T

CODE ANN. §§ 54.012, 54.014, 54.015, 54.107. In connection with this claim, the City

alleges in relevant part:

       Mr. Redburn violated the MS4 Ordinance by dumping pollutants and
       obstructing into the City’s separate storm sewer system when he capped
       the concrete culvert with 5 tons of concrete. Mr. Redburn was advised
       through his attorney of this violation by letter dated April 7, 2011, and
       warned of the consequences of non-compliance. Mr. Redburn fails to
       cooperate and intentionally continues to defy the law by failing to remove
       the concrete barrier and placing the public at risk of imminent harm. Mr.
       Redburn’s defiance puts the City’s residents in jeopardy. This culvert is
       an improvement to an existing waterway historically referred to as the
       Phillips ditch which burdened appellant’s property prior to any City action
       in connection with the drainage structure involved. It serves as a
       watershed during rains, and prevents flooding. Mr. Redburn only recently
       took it upon himself to plug it. Undoubtedly, during the next rain, the water
       that flows into this culvert will back up and cause flooding and other
       damages to the City.



                                               13
       The City seeks a temporary injunction to “allow access upon [appellant’s]

property for purposes of removing obstructions to the public MS4 storm sewer

immediately to return the parties to the status quo.” The City also “asks the court to

order the demolition or removal of the concrete cap and to order daily civil penalties for

every day and every independent violation of the MS4 ordinance by Redburn.”

       In its action for declaratory judgment, the City “claims an easement in and to the

property [belonging to appellant] for purposes of maintaining the MS4.” The City seeks

a final judgment that would include “awarding title and possession of the area burdened

by the drainage ditch known as the Phillips ditch easement to the City.”         The City

requests a “finding [that] the concrete culvert is a public improvement not subject to

abatement.” In addition, the City seeks a judicial declaration as follows:

       Redburn unlawfully interfered with the City’s public improvement and
       easement on or about March 28, 2011. Furthermore, Redburn plugged
       the 60-inch public improvement with 5 tons of concrete on or about March
       28, 2011. Redburn improperly prohibits the City from using the easement
       to access the public improvement to maintain it for public health and
       safety.

       In sum, the City has asserted an affirmative claim for monetary relief, a claim to

quiet title to an easement on appellant’s property, and a claim to enforce its rights to

access a public improvement through an award of injunctive relief against appellant. As

set forth below, we believe appellant’s claims are “claims that would offset, in whole or

in part, any recovery by the City and that [are] germane to, connected with, and properly

defensive to the City’s claims.” See City of Dallas, 354 S.W.3d at 375. In fact, the

claims could not be more closely related.

       In his amended petition, appellant alleges in relevant part as follows:




                                            14
       The City of Victoria[,] Texas constructed a storm water drain culvert next
       to and on Plaintiff’s property which said culvert periodically drains large
       amounts of water onto and across Plaintiff’s property causing significant
       and irreparable damage to Plaintiff’s property. The City of Victoria does
       not have the Plaintiff’s consent or permission and the City of Victoria does
       not have an easement or other legal authority to enter Plaintiff’s property
       and are illegally trespassing in violation of the Texas Water Code section
       11.086.

Appellant requests relief that includes the following:

       Declaratory judgment declaring that under section 11.086 of the Texas
       Water Code the Defendants are illegally draining storm water from the City
       of Victoria’s STORM WATER drainage system onto and across the
       Plaintiff’s property and are trespassing on Plaintiff’s property.

       Declaratory judgment declaring that under section 11.086 of the Texas
       Water Code the Plaintiff is not obligated or required to accept the storm
       water this [sic] is periodically drained storm water from the City of
       Victoria’s STORM WATER system onto and across Plaintiff’s property.

       [Declaratory judgment declaring that] Plaintiff is the owner of the property
       including all surface rights in a certain tract of land located in Victoria
       County Texas known as 902 Stayton Street Victoria Texas upon which the
       Defendants are trespassing.

In his prayer, appellant requested the following relief:

       That after a final hearing the Court Grant Plaintiff’s request for Declaratory
       Judgment that the Defendants are trespassing on Plaintiff’s property and
       [t]hat the Court permanently enjoin . . . the Defendants, to desist, cease
       and stop draining storm water upon and onto and across Plaintiff’s
       property located at 902 Stayton Victoria Texas.

       As noted above, “a governmental entity does not enjoy immunity from suit in the

first instance for claims against it that are germane to, connected with, and properly

defensive to claims that the governmental entity asserts.” Sweeny, 226 S.W.3d at 592.

Thus, we must determine whether appellant’s claims for declaratory judgment and

injunctive relief are sufficiently related to the City’s cross-claims for statutory penalties,

declaratory judgment, and injunctive relief. We conclude that they are.



                                             15
       “In common usage, the term ‘germane’ means closely akin, being at once

relevant and appropriate, closely or significantly related, relevant, and pertinent.” Id.

“[T]he term ‘germane’ . . . is not narrower in scope than the test for a compulsory

counterclaim.” Id. Rule 97 of the Texas Rules of Civil Procedure requires parties to

assert any counterclaim “not the subject of a pending action, which at the time of filing .

. . the pleader has against any opposing party, if it arises out of the transaction or

occurrence that is the subject matter of the opposing party’s claim” and does not require

the presence of third parties over whom the trial court could not exercise jurisdiction.

TEX. R. CIV. P. 97(a) (“Compulsory Counterclaims”). Consequently, “[a] compulsory

counterclaim is germane to the opponent’s claim by its very nature.” City of Dallas v.

Redbird Dev. Corp., 143 S.W.3d 375, 383 (Tex. App.—Dallas 2004, no pet.).               “In

common usage, the term ‘connected’ means united, joined or linked and joined together

in sequence; linked coherently and having parts or elements logically linked together.”

Sweeny Cmty. Hosp., 226 S.W.3d at 592.

       In this case, appellant’s claims against the City are “germane” to the City’s claims

against appellant in the sense that they are “significantly related, relevant, and

pertinent.” Id. A resolution of the rights of the parties will depend on facts common to

all the claims because, to a great extent, the pleadings mirror each other. See id. (“[W]e

disagree that it is necessary for [the defendant’s] counterclaims to mirror the cause of

action brought by [the governmental entity].”). In addition, appellant’s claims fit within

the definition of compulsory counterclaims. See TEX. R. CIV. P. 97(a); see Redbird Dev.

Corp., 143 S.W.3d at 382 (“[W]hen a governmental entity files suit against a party, that

entity waives, at a minimum, immunity for suit for counterclaims filed as a consequence



                                            16
of the suit”). Moreover, appellant’s claims are “connected to” the City’s cross-claims

and “properly defensive”2 to those claims because, if established, the practical effect of

appellant’s claims would be to rebut one or more essential elements of the City’s claims.

See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005) (“An inferential

rebuttal defense operates to rebut an essential element of the plaintiff's case by proof of

other facts.”); Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978) (“The basic

characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory

from the claim relied upon for recovery.”). “In this situation, we believe it would be

fundamentally unfair to allow [the City] to assert affirmative claims against [appellant]

while claiming it had immunity as to [appellant’s] claims against it.” Reata Construction

Corp. v. City of Dallas, 197 S.W.3d 371, 376–77 (Tex. 2006).

        Accordingly, the trial court erred in granting appellees’ plea to the jurisdiction with

regard to appellant’s claims against the City. We sustain appellant’s first issue and

dismiss appellant’s second issue as moot.




        2
            See Anderson v. State, 62 S.W.2d 107, 110 (Tex. 1933) (“Where a state voluntarily files suit
and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to
plead and prove all matters properly defensive [including] the right to make any defense . . . germane to
the matter in controversy.”); see also Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 377
(Tex. 2006) (applying the Anderson rule and stating, “we see no substantive difference between a
decision by the City to file an original suit and the City’s decision to file a claim as an intervenor in [the
plaintiff’s] suit. Accordingly, when the City filed its affirmative claims for relief as an intervenor, the trial
court acquired subject-matter jurisdiction over claims made against the City which were connected to,
germane to, and properly defensive to the matters on which the City based its claim for damages.”).

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                                    III. CONCLUSION

      The order of the trial court is reversed and the cause remanded for further

proceedings consistent with this opinion.



                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice

Delivered and filed the
28th day of February, 2013.




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