      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                               ON MOTION FOR REHEARING
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                                      NO. 03-07-00009-CV



         City of Round Rock and Round Rock Fire Chief Larry Hodge, Appellants

                                                 v.

                                   Mark Whiteaker, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
     NO. D-1-GN-06-003576, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                             CONCURRING OPINION


               On motion for rehearing, I reissue my original opinion without change. When

deciding questions of jurisdiction, the element of necessity guards against the temptation to address

the merits of the case or to issue advisory commentary. I agree that Whiteaker’s claim for

retrospective monetary relief as currently plead is foreclosed by the supreme court’s recent decision

in City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007), and that, in light of Williams, decided

after the trial court ruled on this matter, Whiteaker should be given an opportunity to replead. But

the majority’s analysis goes beyond the limits of the procedure established by the supreme court in

Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).
                  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 cause.

133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the

pleaders’ intent. Id. at 226-27. We presume in favor of the trial court’s jurisdiction unless lack

of jurisdiction affirmatively appears on the face of the pleadings. Peek v. Equipment Serv. Co.,

779 S.W.2d 802, 804 (Tex. 1989). If the pleadings do not contain sufficient facts to affirmatively

demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in

jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the

opportunity to amend. Miranda, 133 S.W.3d at 226-27.

                  It is readily apparent from the face of the pleadings that, with the exception of

his claim for retrospective monetary relief as currently pleaded, Whiteaker has alleged sufficient

facts to demonstrate the trial court’s jurisdiction. Accordingly, review of the evidence submitted

by the City is unwarranted, and the trial court properly denied the City’s plea to the jurisdiction.

See id. at 227.

                  Moreover, given the supreme court’s decision in Williams, Whiteaker’s allegations

do not affirmatively negate jurisdiction and, as the majority correctly concludes, he should be given

the opportunity to replead. See id. at 226-27. The supreme court has since reaffirmed its conclusion

that a plaintiff “deserves the opportunity to amend his pleadings if they can be cured.” Texas A&M

Univ. Sys. v. Koseoglu, 2007 Tex. LEXIS 838, *30 (Tex. Sept. 7, 2007).




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                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: November 16, 2007




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