                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-290-CV


CITY OF CROWLEY, TEXAS                                             APPELLANT

                                        V.

DOUG RAY                                                             APPELLEE

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           FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant City of Crowley, Texas, (the “City”) appeals the trial court’s

order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8) (Vernon 2008). In a single issue, the City argues that the trial

court erred by denying its plea to the jurisdiction because Appellee Doug Ray




      1
           See Tex. R. App. P. 47.4.
failed to establish a waiver of the City’s governmental immunity by pleading an

underlying controversy within the scope of section 37.004 of the Uniform

Declaratory Judgments Act (“UDJA”). See id. § 37.004(a) (Vernon 2008). We

will affirm.

                                 II. B ACKGROUND

      According to Ray’s original petition, in 2007, he began planning for the

construction of “Ray’s Place Phase Two,” a subdivision development located

in the City on land partially within a flood plain. As part of the planning, Ray

obtained the City’s criteria for flood plain development, which had been drafted

by Teague Nall and Perkins, Inc. (“TNP”) for the City. After construction began

on the development, Ray learned that the information and survey performed by

TNP for the City were “incorrect and based upon the wrong flood plain

information.” 2 The City denied Ray building permits even though it had adopted

the flood plain criteria as determined by TNP, and Ray was forced to erect

additional retaining walls and increase fills, suffered delays in the completion of

the project, and lost actual lots due to the modification of the flood plain.




      2
        According to the affidavit of Ron Morrison, which Ray attached to the
original petition, a Letter of Map Revision (“LOMR”) dated July 20,
1999—which had been reviewed by TNP and approved by the City—contained
an erroneous hydrology model.

                                        2
      Ray sued TNP and the City. He alleged claims against TNP for breach of

contract, professional negligence, and breach of implied warranty, and he

sought a declaratory judgment against the City, requesting that the trial court

declare the following:

      1.    That the Federal Emergency Management Agency Study of
            the City of Crowley, which includes Fryear, A B Survey, A
            535 Tr 4H,[] showing the Flood Insurance Rate Map (FIRM)
            and Flood Insurance Study (FIS), control the location of the
            100 year flood plain.

      2.    The Letter of Map Revision (LOMR) dated March 9, 1999,
            from the Federal Emergency Management Agency along with
            the LOMR dated July 20, 1999, were adopted by the City of
            Crowley.

      3.    The LOMR of March 9, 1999, and LOMR of July 20, 1999,
            revised the FIRM and FIS report, both dated August 2, 1995.

      4.    The LOMR of March 9, 1999, and LOMR of July 20, 1999,
            revised the FIRM and FIS report both dated August 2, 1995,
            to establish elevations and floodplain and floodway boundary
            delineations of the flood having a 1-percent chance of being
            equaled or exceeded in any given year (base flood) along the
            North Fork of Deer Creek from the AT&SF to approximately
            1,700 feet upstream (100 year flood plain).

      5.    The LOMR of March 9, 1999, and LOMR of July 20, 1999,
            along with the FIRM and FIS report, both dated August 2,
            1995, cover the property located at lots 1-6 & 13-17, Block
            1 Fryear, A B Survey, A 535 Tr 4H, as recorded in the
            Tarrant County Deed Records.

      6.    The LOMR of March 9, 1999, and LOMR of July 20, 1999,
            along with the FIRM and FIS report, both dated August 2,
            1995, would not affect development of the property located

                                      3
             at Fryear, A B Survey, A 535 Tr 4H, as recorded in the
             Tarrant County Deed Records.

      7.     The Ray’s Place II Addition located at Fryear, A B Survey, A
             535 Tr 4H, as originally designed, would not be within the
             100 year flood plain of the North Fork of Deer Creek.

      8.     Defendant City of Crowley may not deny a permit to develop
             property located at Fryear, A B Survey, A 535 Tr 4H, as
             recorded in the Tarrant County Deed Records based upon
             encroaching on the 100 year flood plain.

      9.     No changes have been made to the floodplain as adopted by
             the city in accordance with the LOMR of 3/9/99 and LOMR
             of 7/20/99 and the FIRM and FIS report dated 8/2/95.

      The City filed its plea to the jurisdiction, arguing that Ray failed to

establish the jurisdiction of the trial court over his declaratory judgment action

because he did not plead that a statute or ordinance is ambiguous or invalid as

required by civil practice and remedies code section 37.004. The trial court

denied the plea, and this interlocutory appeal followed.

                          III. R AY’S M OTION TO D ISMISS

      Ray filed a motion to dismiss the City’s interlocutory appeal. He argues

that this court lacks jurisdiction over the City’s appeal because the

enumerations of civil practice and remedies code section 37.004 are not

jurisdictional.

      It is well established that the doctrine of governmental immunity protects

governmental entities from lawsuits for damages absent a waiver of immunity

                                        4
or legislative consent to sue. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636,

638 (Tex. 1999); MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297

S.W.3d 483, 487 (Tex. App.—Houston [14th Dist.] 2009, no pet.).                If a

governmental entity is entitled to immunity from the plaintiff’s suit, the trial

court lacks subject matter jurisdiction to consider the suit. Jones, 8 S.W.3d at

638–39 (“Since as early as 1847, the law in Texas has been that absent the

state’s consent to suit, a trial court lacks subject matter jurisdiction.”).     A

defendant may challenge the trial court’s subject matter jurisdiction by filing a

plea to the jurisdiction. Id. at 638. Civil practice and remedies code section

51.014(a)(8) permits an interlocutory appeal from an order that denies a plea

to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8).

      Here, the City is a governmental entity; it is not a private individual or

other entity that is not generally entitled to governmental immunity.         See

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

As a governmental entity, the City enjoys immunity from Ray’s suit unless its

immunity has been waived.       See Jones, 8 S.W.3d at 638; Wharves, 297

S.W.3d at 487. In its plea to the jurisdiction, the City relies on several cases

for its contention that, as a governmental entity, it is entitled to immunity from

a request for relief for a declaratory judgment except when the request for

                                        5
declaratory relief alleges that a statute or ordinance is ambiguous or invalid. 3

Because Ray did not plead that a statute or ordinance is ambiguous or invalid,

the City argues that its immunity from Ray’s suit has not been waived and that

the trial court therefore lacks subject matter jurisdiction. 4 Accordingly, the City

raised an issue implicating the trial court’s jurisdiction over Ray’s declaratory

judgment action, and this court has jurisdiction to consider the City’s

interlocutory appeal of the trial court’s order denying its plea to the jurisdiction.

We overrule each of Ray’s arguments, and we deny his motion to dismiss the

City’s appeal.

                             IV. S TANDARD OF R EVIEW

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

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

merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether the trial

court has subject matter jurisdiction is a question of law that we review



      3
         See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)
(reasoning that governmental immunity is waived in declaratory judgment
actions to construe legislative enactments of governmental entities); Boatman
v. Lites, 970 S.W.2d 41, 43 (Tex. App.—Tyler 1998, no pet.) (stating that a
declaratory judgment should not be rendered when there is no claim that a
statute or a deed is ambiguous or invalid).
      4
        As the City characterizes its plea, “[t]he issue . . . is whether [Ray]
has plead [sic] an underlying controversy within the scope of section 37.004
of the UDJA.”

                                         6
de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002).

      The determination of whether a trial court has subject matter jurisdiction

begins with the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the

burden to plead facts affirmatively showing that the trial court has jurisdiction.

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

We construe the pleadings liberally in favor of the pleader, look to the pleader’s

intent, and accept as true the factual allegations in the pleadings. See Miranda,

133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550,

552 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g). If a plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant

evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised. See Bland ISD, 34 S.W.3d at 555.

            V. R AY’S R EQUESTED D ECLARATORY R ELIEF IS N OT B ARRED
                          BY G OVERNMENTAL IMMUNITY


      In its only issue, the City argues that the trial court erred by denying its

plea to the jurisdiction. It contends that the UDJA “has been construed to only

waive immunity for declaratory judgment actions involving the construction of

legislative enactments of governmental entities” and, therefore, that “a



                                        7
declaratory judgment should not be rendered when there is no claim that a

statute, ordinance or deed is ambiguous or invalid.”         The City accordingly

argues that Ray failed to establish a waiver of the City’s governmental

immunity because none of his nine requests for declaratory relief allege that a

statute or ordinance is ambiguous or invalid. The City also argues that Ray’s

claim for attorneys’ fees, which arises under the UDJA, should have been

dismissed because he failed to invoke the jurisdiction of the trial court over his

declaratory judgment action.

      Ray essentially concedes that his requests for declaratory relief do not fit

neatly within the class of claims commonly cited by courts as not implicating

immunity, but he responds that the City’s argument fails because it disregards

the purpose and extent of the UDJA.

      The purpose of the UDJA is to establish existing “rights, status, and other

legal relations whether or not further relief is or could be claimed.” Tex. Civ.

Prac. & Rem. Code Ann. § 37.003(a) (Vernon 2008). The court issuing the

declaratory judgment must act “within its jurisdiction”—the UDJA is not a grant

of jurisdiction; rather, it is a procedural device for deciding cases already within




                                         8
a court’s jurisdiction. Id.; Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex.

1996). Section 37.004(a) specifically provides as follows:

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

Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a).

      Sovereign immunity—referred to as governmental immunity in the context

of a suit against a political subdivision, including a city—bars certain types of

declaratory judgment actions against the State and its political subdivisions; it

does not bar all types of declaratory judgment actions. Specifically, sovereign

immunity bars a request for declaratory relief against a governmental entity that

constitutes no more than a suit to recover money damages, such as breach of

contract. IT-Davy, 74 S.W.3d at 853, 855–56 (“Sovereign immunity protects

the State from lawsuits for money damages.”); Tex. Parks & Wildlife Dep’t v.

Callaway, 971 S.W.2d 145, 152 (Tex. App.—Austin 1998, no pet.). Also,

“suits against state officials seeking to establish a contract’s validity, to enforce

performance under a contract, or to impose contractual liabilities” implicate the

doctrine of sovereign immunity because such suits “attempt to control state

action by imposing liability on the State.” IT-Davy, 74 S.W.3d at 855–56.

                                         9
And ultra vires suits complaining of a state official’s failure to comply with

statutory or constitutional provisions must be brought against governmental

actors in their official capacity, not against the governmental entities

themselves.    City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex.

2009).

      In contrast to suits seeking to recover money damages and to impose

liability on the State, the UDJA allows persons to challenge ordinances or

statutes, that is, legislative pronouncements. 5 Leeper, 893 S.W.2d at 446.

Further, as alluded to, private parties may seek declaratory relief against state

officials who allegedly act without legal or statutory authority or who fail to

perform a purely ministerial act. Heinrich, 284 S.W.3d at 372–73 (“[S]uits to

require state officials to comply with statutory or constitutional provisions are

not prohibited by sovereign immunity, even if a declaration to that effect

compels the payment of money.”); IT-Davy, 74 S.W.3d at 855.                This is

because suits to compel state officers to act within their official capacity do not

attempt to subject the State to liability and, thus, are not suits against the

State. IT-Davy, 74 S.W.3d at 855. Immunity also does not shield the State

from an action for compensation under the takings clause or from a suit for



      5
        Indeed, governmental entities must be joined in suits to construe their
ordinances or statutes. Leeper, 893 S.W.2d at 446.

                                        10
equitable relief for a violation of constitutional rights. State v. Holland, 221

S.W.3d 639, 643 (Tex. 2007); Gen. Servs. Comm’n v. Little-Tex Insulation

Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001).

      In this case, Ray seeks damages for breach of contract, professional

negligence, and breach of implied warranty only from TNP; his original petition

prays for “actual damages within the jurisdictional limits of the Court from

TNP.” [Emphasis added.] Ray’s requests for declaratory relief do not expressly

seek money damages from the City or to impose liability upon the City; the

original petition prays for “[j]udgment against [the City] as set out in paragraph

IX,” which only requests declaratory relief and attorneys’ fees. Nor—as far as

we can determine from the face of the original petition—does the requested

declaratory relief constitute a veiled attempt to hold the City liable for some act

or omission allegedly committed by the City in regard to, among other things,

its adoption of the alleged partially erroneous flood plain criteria. Accordingly,

Ray’s requests for declaratory relief do not fall within the class of claims

seeking declaratory relief for which the supreme court has determined that

immunity is implicated.

      On the other hand, Ray’s requests for declaratory relief do not challenge

a statute or ordinance, do not seek to compel a state officer to act within his

or her official capacity, and do not seek compensation under the takings clause.

                                        11
Rather, the requests ask the trial court to make declarations about various

“documents,” including several LOMRs and a “Federal Emergency Management

Agency Study of the City of Crowley.” It is precisely because of this—that

Ray’s requested declaratory relief does not fall squarely within the enumerations

set out in section 37.004(a) (specifically, a challenge to a statute or

ordinance)—that the City argues it is immune from Ray’s suit requesting

declaratory relief in regard to certain “documents.” We conclude, however,

that this is not fatal to Ray’s action.

      The UDJA contains provisions other than section 37.004 that are relevant

to the City’s issue. 6   Section 37.002(b) requires that the UDJA be liberally

construed and administered to fulfill its purpose “to settle and to afford relief

from uncertainty and insecurity with respect to rights, status, and other legal

relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 2008). The

City argues that it enjoys immunity from Ray’s suit because his requests for

declaratory relief do not “fall within the scope of section 37.004,” but section

37.003(c) advises that “[t]he enumerations in Sections 37.004 . . . do not limit

or restrict the exercise of the general powers conferred in this section in any



      6
        Our primary objective when construing a statute is to ascertain and
give effect to the legislature’s intent, and we must read the statute as a whole
and not just isolated portions. Tex. Dep’t of Transp. v. City of Sunset Valley,
146 S.W.3d 637, 642 (Tex. 2004).

                                          12
proceeding in which declaratory relief is sought and a judgment or decree will

terminate the controversy or remove an uncertainty.” Id. § 37.003(c); see

Supak v. Zboril, 56 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2001,

no pet.) (“As the [UDJA] makes clear, section 37.004 is not intended to be an

exclusive list of those cases for which a court may grant declaratory relief.”);

Jackson v. City of McKinney, No. 05-00-00062-CV, 2001 WL 946811, at *3

n.5 (Tex. App.—Dallas Aug. 22, 2001, no pet.) (“Section 37.004 is not

exhaustive.”).

      In Ackers v. Lubbock, the Amarillo Court of Appeals considered the

interplay between section 37.004(a) and section 37.003(c) in the context of

addressing an issue almost identical to the issue raised by the City in this case.

253 S.W.3d 770, 774–76 (Tex. App.—Amarillo 2007, pet. denied). In that

case, Ackers sued the City of Lubbock, requesting twenty-three declarations,

including one that the Lubbock Police Department’s policy requiring that

parental permission be obtained before photographs of minors may be taken

was unconstitutional. Id. at 774–75. The trial court sustained Lubbock’s plea

to the jurisdiction on governmental immunity grounds, but the court of appeals

reversed, concluding that Lubbock’s immunity had not been waived even

though Ackers’s request for declaratory relief did not fall squarely within the




                                       13
enumerations of civil practice and remedies code section 37.004.                 Id. at

775. The court of appeals reasoned in relevant part as follows:

      While Ackers’s challenge of the constitutionality of the City’s policy
      is not specifically identified in section 37.004(a), we conclude that
      the failure of the section to specifically list a city’s policy as being
      capable of challenge by declaratory action does not mean that such
      an action is barred by governmental immunity. . . . We conclude
      that the primary declaration sought by Ackers in the present case
      will remove uncertainty regarding rights and will resolve the
      controversy regarding whether the City’s policy is valid.

Id.

      In this case, Ray sued TNP because it allegedly reviewed and approved

flood plain criteria for the City that were incorrect, causing Ray to suffer

damages in connection with his development within the flood plain. The basis

of Ray’s suit against TNP thus concerns the circumstances surrounding TNP’s

actions or omissions with regard to the flood plain criteria that it allegedly

reviewed and approved for the City. Ray’s requests for declaratory relief seek

to establish the historical actions of the City in administering flood plain

regulations as to specific property within the City’s boundaries. For example,

Ray seeks a declaration that the Federal Emergency Management Agency Study

of the City of Crowley controls the location of the 100-year flood plain; that the

City adopted the March and July 1999 LOMRs; that the March and July 1999

LOMRs revised the Flood Insurance Rate Map and Flood Insurance Study, both



                                        14
dated August 1995; and that the March and July 1999 LOMRs cover property

located at a particular location, as recorded in the Tarrant County Deed

Records.

      Like the court in Ackers, we conclude that the absence of a reference in

section 37.004(a)’s enumerations to the “documents” for which Ray seeks a

declaration does not cause his action to be barred by governmental immunity

because—considering the basis of Ray’s claims against TNP and the substance

of the declaratory relief he seeks from the City—his requests for declaratory

relief will, at the very least, remove several uncertainties regarding the flood

plain criteria documents that are central to Ray’s suit against TNP. See Tex.

Civ. Prac. & Rem. Code Ann. §§ 37.002(b), 37.003(c); Ackers, 253 S.W.3d

at 775.    Concluding to the contrary would effectively render meaningless

several relevant UDJA provisions and ignore the supreme court’s directive that

“[t]he rule requiring a waiver of governmental immunity to be clear and

unambiguous cannot be applied so rigidly that the almost certain intent of the

Legislature is disregarded.” See City of LaPorte v. Barfield, 898 S.W.2d 288,

292 (Tex. 1995).

      The City argues that in Mount Calvary Missionary Baptist Church v.

Morse Street Baptist Church, this court adopted “the rule announced by

Boatman” that “[a] declaratory judgment should not be rendered when there is

                                      15
no claim that a statute or a deed is ambiguous or invalid.” No. 02-04-00147-

CV, 2005 WL 1654752, at *9 (Tex. App.—Fort Worth July 14, 2005, no pet.)

(mem. op. on reh’g). The citation in Mount Calvary to the “rule announced by

Boatman” does not foreclose the conclusion that we reach in this case. The

“rule” that “[a] declaratory judgment should not be rendered when there is no

claim that a statute or a deed is ambiguous or invalid” is essentially shorthand

for expressing section 37.004(a), which identifies the subject matter of relief

under the UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a). As we

explained above, the UDJA contains provisions other than section 37.004 that

are relevant to the issue raised by the City in this appeal—sections 37.003(c)

and 37.002(b). Unlike in this case, the issue in Mount Calvary did not include

or require an examination of the plaintiff’s request for declaratory relief in light

of sections 37.003(c) and 37.002(b). 7 Id. at *8–9. Our reasoning in this case




      7
        Mount Calvary involved an appeal from a summary judgment granted
in favor of Morse on the basis of adverse possession. Id. at *1, *5–8. The
discussion concerning the UDJA occurred in the context of addressing Mount
Calvary’s issue that the trial court had erred by awarding attorneys’ fees to
Morse under the UDJA. Id. at *8. This court concluded that the trial court had
erred by awarding Morse attorneys’ fees under the UDJA because Morse,
whose claim only concerned “title under the ten-year adverse possession rule,”
had not pleaded a claim within the scope of section 37.004(a) but essentially
used the UDJA merely as a vehicle to obtain attorneys’ fees, which is not
permitted. Id. at *5, *8–9.

                                        16
is thus not inconsistent with the issue in Mount Calvary addressing attorneys’

fees under the UDJA.

      Accordingly, considering that Ray’s requests for declaratory relief do not

seek to impose any liability upon the City, do not request any money damages

from the City, and will remove several uncertainties regarding the flood plain

criteria documents that are central to his suit against TNP, we conclude and

hold that Ray pleaded an underlying controversy within the scope of the UDJA

and established a waiver of the City’s governmental immunity. We overrule this

part of the City’s only issue.

      In the other part of its only issue, the City argues that Ray’s claim for

attorneys’ fees under the UDJA fails and should have been dismissed by the

trial court for want of jurisdiction because he failed to invoke the trial court’s

jurisdiction under the UDJA. Having overruled the City’s argument that Ray

failed to invoke the trial court’s subject matter jurisdiction, we overrule its

argument that Ray’s claim for attorneys’ fees also should have been dismissed

for lack of jurisdiction and leave the decision to the trial court regarding the

awarding of attorneys’ fees as are “equitable and just.” See Tex. Civ. Prac. &

Rem. Code Ann. § 37.009 (Vernon 2008).




                                       17
                                VI. C ONCLUSION

      Having overruled the City’s only issue, we affirm the trial court’s order

denying the City’s plea to the jurisdiction.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: March 18, 2010




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