Opinion issued August 30, 2018




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-16-00985-CV
                          ———————————
                     ELIZABETH C. PEREZ, Appellant
                                       V.
SYLVESTER TURNER, MAYOR, KARUN SREERAMA, DIRECTOR OF
PUBLIC WORKS AND ENGINEERING, AND THE CITY OF HOUSTON,
                       Appellees


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-34786


                                 OPINION

     This is a suit contesting a City of Houston drainage fee ordinance.

     Appellant, Elizabeth C. Perez, appeals the trial court’s December 9, 2016

order granting the plea to the jurisdiction filed by Appellees—Mayor Sylvester
Turner, the Director of Public Works and Engineering Karun Sreerama, and the City

of Houston (collectively, “the City”)—and dismissing all of Perez’s claims.1 Perez

seeks a judgment declaring the drainage fee ordinance invalid; an injunction against

the assessment, collection, and expenditure of taxes and fees pursuant to the

ordinance; and reimbursement, “on behalf of herself and all other similarly situated

persons or entities,” of taxes and fees assessed and collected pursuant to the

ordinance and paid “under duress.”

      In four points of error, Perez argues that (1) she has standing to assert a legal

claim for reimbursement for wrongfully-collected drainage charges that she paid

under duress under the purportedly invalid city ordinance; (2) the named individual

defendants—the Mayor and the Director of Public Works and Engineering—do not

have governmental immunity from her claims based on their enforcement of the

invalid city ordinance, and, therefore, the trial court has subject-matter jurisdiction

over her claims for declaratory and injunctive relief against these defendants; (3) the

City’s governmental immunity to her declaratory and injunctive relief claims was

waived by the statutory requirement that the City be joined as a necessary party to

her claims asserting the unconstitutionality and/or the illegality of specific city

ordinances conferring the authority to assess, collect and expend drainage charges



1
      Perez originally named Annise Parker and Dale A. Rudick in their official capacities
      as defendants. However, both Parker and Rudick have since been replaced in office.
                                           2
for street improvements; and (4) the trial court wrongly dismissed her constitutional

claims on the ground that they were not ripe. We affirm in part and reverse and

remand in part.

                                     Background

A.    The Charter Amendment

      Houston is a home rule city governed by a city charter. In 2010, a citizen-

initiated petition sought to amend the charter to address the need for drainage and

street improvements through Proposition One, which would change the method of

financing such projects from bond debt to “Pay-As-You-Go.” The amendment

proposed a Dedicated Drainage and Street Renewal (DDSR) Fund that would be

funded from various sources including a fixed percentage of ad valorem tax revenue

shifted from debt service to the DDSR Fund, federal grants, and drainage fee and

developer impact fee revenue. Because the percentage of ad valorem tax revenue

shifted to the DDSR Fund and the drainage and developer fees added by the charter

amendment could affect Houston’s revenue caps,2 the amendment provided that

“funding for the [DDSR Fund] that is not derived from ad valorem taxes levied by




2
      A revenue cap was added to the city charter in 2004 that requires voter approval for
      increases in ad valorem taxes above a certain level, as determined year-by-year
      based on a formula set out in the charter.

                                           3
the City (i.e., that portion derived from fees, charges and third party payments) shall

not be included in those ad valorem tax revenues limited by this Charter.”

      Specifically, on November 2, 2010, the City of Houston voters voted on and

approved “PROPOSITION I—CHARTER AMENDMENT PROPOSITION

Relating to the Creation of a Dedicated Funding Source to Enhance, Improve and

Renew Drainage Systems and Streets.” The body of Proposition I stated, in its

entirety, “Shall the City Charter of the City of Houston be amended to provide for

the enhancement, improvement and ongoing renewal of Houston’s drainage and

streets by creating a Dedicated Pay-As-You-Go Fund for Drainage and Streets?”

      Perez and two other registered voters filed an election contest in December

2010 to challenge the legality of Proposition I, asserting that the Proposition’s

language was defective and illegally deceptive. This case proceeded through the trial

court, which granted summary judgment in favor of the City and the Mayor, and the

appellate court, which affirmed the trial court’s judgment (Dacus I), to the Texas

Supreme Court, which reversed the judgment of the appellate court and ruled in

favor of Perez and her co-parties. Dacus v. Parker, 466 S.W.3d 820 (Tex. 2015)

(Dacus II). The supreme court held that because Proposition I failed to mention that

drainage charges would be imposed on most real property owners, and therefore

omitted a chief feature of the measure, the measure was not submitted “with such

definiteness and certainty that voters would not be misled.” Id. at 829. The court


                                          4
remanded the case to the trial court “for further proceedings consistent with [its]

opinion.” Id.

      On remand from Dacus II, the trial court granted summary judgment in favor

of Perez and her co-plaintiffs. It held that the November 2, 2010 election on

Proposition I, amending the City’s charter, was void. The Fourteenth Court of

Appeals affirmed, and the Texas Supreme Court denied the City’s subsequent

petition for review. City of Houston v. Dacus, No. 14-16-00123-CV, 2017 WL

536647, at *2, 5 (Tex. App.—Houston [14th Dist.] Feb. 9, 2017, pet. denied) (mem.

op.) (Dacus III).

B.    The Drainage Fee Ordinance

      In April 2011, after the Dacus case was filed, and while it was still pending,

the City passed an ordinance under Local Government Code Chapter 552, the

“Municipal Drainage Utility Systems Act,” creating a drainage utility and allowing

that utility to assess, collect, and spend drainage fees (the Drainage Fee Ordinance).

The Drainage Fee Ordinance defines “drainage” as including streets, curbs, and

other manmade or natural “conduits . . . that are used to draw off surface water from

land, carry the water away, collect, store, or treat the water, or divert the water into

natural or artificial watercourses or into which the surface water flows.” The

Ordinance identifies the authority to collect drainage fees as arising from both

Chapter 552 and the City’s home rule authority.


                                           5
      The City subsequently collected drainage fees from Perez and others. For

example, Perez presented evidence that she paid a monthly drainage fee of $11.38

on her current residence.

      Following the Texas Supreme Court ruling in Dacus II and while remand was

pending in that suit, on June 17, 2015, Perez initiated the instant class-action lawsuit3

against the City and City officers charged with implementing the Drainage Fee

Ordinance, challenging the legality of the Ordinance and seeking declaratory and

injunctive relief and reimbursement of taxes paid pursuant to it. Perez alleged that

the City and the individual defendants “unconstitutionally and illegally assessed,

collected and expended hundreds of millions of dollars from 2011 to 2105

purportedly for drainage and street improvements and repairs . . . from . . . Houston

taxpayers and landowners pursuant to a void Charter Amendment,” Proposition I,

and “a void City Ordinance,” the Drainage Fee Ordinance.

      In her petition, she sought a judicial declaration that the drainage tax imposed

by the Drainage Fee Ordinance is “illegal and/or unconstitutional” and that “all

assessed amounts must be reimbursed to those persons and entities that paid them.”


3
      Perez pled her suit as a class-action lawsuit but no class certification ever occurred.
      Perez argues in her brief on appeal that the drainage fees have been used illegally
      because they have been used not only for drainage projects but for “projects clearly
      unrelated to drainage systems such as traffic signal reconstruction, bridge
      replacement, street intersection improvements, concrete panel replacement, and
      asphalt overlays, among others.” The issue before us, however, is whether the trial
      court had jurisdiction over Perez’s claims, not the merits of her claims.
                                             6
In this Court, Perez now states that she no longer seeks reimbursement for past

payments for taxes, only the monthly drainage fee charged to her residence. She also

sought an injunction against the expenditure of all amounts assessed but not yet spent

and against further assessments, with any money collected to be paid into the registry

of the Court.

      Perez claimed, “Simply put, the [Drainage Fee Ordinance] is void, and has

always been void.” Perez claimed that she has standing to bring claims against the

City and the “ultra vires defendants” because she “is a municipal taxpayer who paid,

and continues to pay, the [i]llegal [drainage] [t]ax under duress.” She alleged that

the drainage fee tax has been illegally assessed and collected “pursuant to a void

Charter Amendment and/or to a void City Ordinance” and that the current mayor,

Sylvester Turner, has announced his intention to continue to assess and collect the

drainage tax. She also sought declaratory and injunctive relief to stop the City and

individual defendants from passing future budgets or future spending of public

monies which “exceed the caps of the Revenue Cap and/or the Spending Cap

contained in the Houston City Charter,” as, she alleged, the City had been doing

under “the now Void Charter Amendment.” She claimed standing as a resident,

municipal taxpayer, and registered voter who has paid the drainage tax “under

duress.”




                                          7
      Finally, Perez contended, citing City of El Paso v. Heinrich, 284 S.W.3d 366

(Tex. 2009), that no governmental immunity exists for a claim brought under the

ultra vires exception to sovereign or governmental immunity for claims like those

she is alleging against the individual defendants for “prospective injunctive and/or

declaratory relief to restrain the official from violating statutory or constitutional

provisions.” Perez also contended that “the Texas Declaratory Judgments Act

contains a waiver of immunity from suit for prospective equitable remedies in

official-capacity suits against government actors who have violated statutory and

constitutional provisions by acting without legal authority,” even if the judgment

contains a declaration that state officials must comply with the law and enforcement

of the law “compels the payment of money.”

      On December 9, 2016, the trial court dismissed Perez’s lawsuit for want of

subject-matter jurisdiction. The trial court found that Perez’s “purported

constitutional claims” were not ripe for adjudication, that Perez had “no standing to

challenge the validity, legality, and/or constitutionality of the assessment and/or

collection of City of Houston drainage fees, the November 2010 Pay-As-You-Go

charter amendment [Proposition I], and/or the April 2011 [D]rainage [Fee]

[O]rdinance because she has suffered no particularized injury as a matter of law,”

that she had “no standing to seek money damages and/or a refund as a taxpayer as a

matter of law,” and that governmental immunity also barred her refund claim.


                                          8
      The trial court further found that:

          • Perez “has not pleaded and cannot plead any ultra vires act with regard
            to the mere enforcement or implementation” by any city official of any
            charter amendment, ordinance, or other law “currently in effect”;

          • her purported ultra vires claim against the City was barred by
            governmental immunity “because no municipality, including the City
            of Houston, is a proper party to any ultra vires claim as a matter of
            law”;

          • her ultra vires claims against the individual defendants were likewise
            barred by governmental immunity because she had raised no fact issue
            that any of them “had the legal authority to or did commit any ultra
            vires act alleged”;

          • she lacked standing to assert any claim that the City’s drainage fee or
            its implementation “violates any effective City of Houston revenue
            ‘caps’”; and

          • she lacked standing “to seek an audit or certification pursuant to Art.VI,
            § 7 because said provision has never gone into effect.”

      Accordingly, the trial court found that Perez was not entitled to any award of

attorney’s fees. The court granted the City’s pleas to the jurisdiction and dismissed

all of Perez’s claims for lack of jurisdiction, observing that she had “failed to replead

any viable claim after this court’s having given her sufficient opportunity and time

in which to do so.”

      Perez appealed.




                                            9
                           Subject-Matter Jurisdiction

A.    Standard of Review of Subject-Matter Jurisdiction

      Both ripeness and standing are components of subject-matter jurisdiction.

McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231 (Tex. 2001).

      The ripeness doctrine prohibits suits involving “uncertain or contingent future

events that may not occur as anticipated, or indeed may not occur at all.” Perry v.

Del Rio, 66 S.W.3d 239, 250 (Tex. 2001). An issue is ripe for decision when at the

time a lawsuit is filed the facts are sufficiently developed “so that an injury has

occurred or is likely to occur, rather than being contingent or remote.” Waco Indep.

Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000).

      The standing doctrine prohibits suits by those who are not personally

aggrieved. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). A

party’s standing is never presumed, cannot be waived, and can be raised for the first

time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–45

(Tex. 1993). “For a plaintiff to have standing, a controversy must exist between the

parties at every stage of the legal proceedings, including the appeal.” Williams v.

Lara, 52 S.W.3d 171, 184 (Tex. 2001). If the issues are no longer live or the parties

lack a legally cognizable interest in the outcome, the case becomes moot. Id.; see

O’Shea v. Littleton, 414 U.S. 488, 495–96, 94 S. Ct. 669, 676 (1974) (“Past exposure

to illegal conduct does not in itself show a present case or controversy regarding


                                         10
injunctive relief . . . if unaccompanied by any continuing present adverse effects.”).

Like ripeness, “[s]tanding is a prerequisite to subject-matter jurisdiction, and

subject-matter jurisdiction is essential to a court’s power to decide a case.” Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). We review standing

under the same standard by which we review subject-matter jurisdiction generally.

Tex. Ass’n of Bus., 852 S.W.2d at 446.

      Like ripeness and standing, mootness is also relevant to a trial court’s subject-

matter jurisdiction to consider a case. See Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 865 (Tex. 2010). A controversy must exist between the parties at every stage of

the legal proceedings, including the appeal. Bd. of Adjustment of San Antonio v.

Wende, 92 S.W.3d 424, 427 (Tex. 2002). “If a controversy ceases to exist—‘the

issues presented are no longer “live” or the parties lack a legally cognizable interest

in the outcome’—the case becomes moot.” Williams, 52 S.W.3d at 184 (quoting

Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982)). A case is moot

when a judgment cannot have a practical effect on an existing controversy. Reule v.

RLZ Invs., 411 S.W.3d 31, 32 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see

Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth

2010, pet. denied). When a case becomes moot on appeal, we set aside the judgment

and dismiss the case. See Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782,

785 (Tex. 2006); Reule, 411 S.W.3d at 32; Meeker, 317 S.W.3d at 759, 763.


                                          11
      The absence of subject-matter jurisdiction may be raised by a plea to the

jurisdiction, among other procedural vehicles. Bland Indep. Sch. Dist., 34 S.W.3d

at 554. Whether the trial court has subject-matter jurisdiction is a question of law

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

226 (Tex. 2004).

B.    Impact of Dacus on Perez’s Claims in this Suit

      As a preliminary matter, we address the portions of Perez’s pleadings and

complaints on appeal in which she asserts complaints related to the Charter

Amendment, including her claim that the Drainage Fee Ordinance has already been

determined to be invalid because of the litigation surrounding the Charter

Amendment.

      In Dacus II, the Texas Supreme Court declared that Proposition I, providing

for the creation of the Pay-As-You-Go Fund (the DDSR Fund) was not submitted to

the voters in November 2010 “with such definiteness and certainty that voters would

not be misled.” 466 S.W.3d at 829. On remand for further proceedings, the

Fourteenth Court of Appeals, in Dacus III, affirmed the judgment of the trial court

holding that the election on Proposition I, amending the City charter to provide for

the DDSR Fund, was void, and it ordered the City to hold a new election on the

measure. 2017 WL 536647, at *2, 5. The supreme court denied the City’s petition




                                        12
for review of the Fourteenth Court of Appeals’ decision in Dacus III, finally

resolving the controversy regarding the validity of the Charter Amendment.

      In this suit, Perez challenges the legality of the DDSR Fund established in

December 2011 pursuant to Proposition I. Perez filed this suit after the supreme court

held, in Dacus II, that the language of Proposition I was too uncertain to enable

voters to make an informed choice on the Proposition, but before the Fourteenth

Court of Appeals held, in Dacus III, that the election was void and ordered a new

one. Because of the Fourteenth Court of Appeals’ decision in Dacus III, which

became final after Perez filed this suit and while this appeal was pending, issues

relating to the Charter Amendment have been resolved by the judgment declaring

the Charter Amendment void and ordering a new election on the measure. Any

further complaints regarding the Charter Amendment are moot. See Reule, 411

S.W.3d at 32; Meeker, 317 S.W.3d at 759.

      Perez also alleged that the City and other individual defendants exceeded their

authority granted pursuant to a void Charter Amendment. However, the controversy

regarding the validity of the Charter Amendment was not yet resolved at the time

Perez filed her petition. Any claims that the City or City officials acted improperly

in failing to recognize the invalidity of the Charter Amendment before its invalidity

was judicially determined were premature at the time Perez filed this suit. See Perry,

66 S.W.3d at 250; Gibson, 22 S.W.3d at 851–52 (holding that issue is ripe for


                                         13
decision when “at the time a lawsuit is filed, the facts are sufficiently developed ‘so

that an injury has occurred or is likely to occur, rather than being contingent or

remote’”) (emphasis in original) (quoting Patterson v. Planned Parenthood of

Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)).

      Although the Dacus line of cases addressed the Charter Amendment, it did

not address the Drainage Fee Ordinance. Nothing in the Dacus cases invalidated or

called into question the City’s authority to pass the Drainage Fee Ordinance pursuant

to its constitutional home-rule authority or Local Government Code Chapter 552.

Thus, to the extent that Perez’s claims are based on her allegations that the Dacus

cases have already invalidated the Drainage Fee Ordinance and that, as a result, the

City or individual defendants have acted improperly in enforcing the Ordinance, her

claims are misplaced and premature. See Perry, 66 S.W.3d at 250; Gibson, 22

S.W.3d at 851–52. The merits of the Drainage Fee Ordinance must be addressed and

determined before any plaintiff may be heard to complain that the City is enforcing

an illegal and invalid ordinance, and that had not yet happened when Perez filed the

underlying suit and has not been determined by the supreme court’s decision in

Dacus.

      We conclude that the trial court lacked subject-matter jurisdiction over any

claims dependent on the Charter Amendment’s having been declared void, and, thus,

it properly dismissed those claims based on the City’s plea to the jurisdiction.


                                          14
      Perez also argues, however, that the Drainage Fee Ordinance itself is illegal

and invalid in its own right. Perez challenges the validity of the Drainage Fee

Ordinance based in part on her assertion that the judgment voiding the Charter

Amendment likewise invalidated the Drainage Fee Ordinance. The City contests this

assertion. The City asserted in the trial court below and asserts on appeal from the

order dismissing Perez’s claims that the Drainage Fee Ordinance was passed

pursuant to the City’s authority as a home-rule city governed by a city charter and

pursuant to authority granted by Local Government Code Chapter 552. The City

argues in its brief on appeal that the Charter Amendment was unnecessary to impose

a drainage fee but was proposed because it “shifts a portion of ad valorem tax

revenue from debt service to the DDSR Fund and possibly affects Houston’s revenue

caps, [and thus] Houston’s charter was best served by an amendment and election.”

Nevertheless, the City asserted both in the trial court and on appeal that it had

authority—independent of the Charter Amendment—to pass and enforce the

Drainage Fee Ordinance.

      The Texas Constitution provides for home-rule authority. See TEX. CONST.

art. XI, § 5; see also TEX. LOC. GOV’T CODE ANN. §§ 9.001–.008 (West 2008)

(addressing adoption of charters for home-rule municipalities). A home-rule city

derives its power from the Texas Constitution, operates by its city’s charter, and

“possess[es] the full power of self government and look[s] to the Legislature not for


                                         15
grants of power, but only for limitations on their power.” See Town of Lakewood

Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016).

       Furthermore, Local Government Code Chapter 552, also known as the

Municipal Drainage Utility Systems Act, sets out procedures for municipalities to

address concerns regarding drainage. See TEX. LOC. GOV’T CODE ANN. §§ 552.041–

.054 (West 2015 & Supp. 2017) (setting out procedures for municipalities to create

drainage utility that can address drainage concerns). The Drainage Fee Ordinance

itself states:

       [T]his Ordinance has been prepared for consideration by City Council
       in conformance with Subchapter C of Chapter 552 of the Texas Local
       Government Code and the City’s Home-Rule powers under Article XI,
       Section 5 of the Texas Constitution to create a City of Houston
       Municipal Drainage Utility System to accomplish the objective and
       directives of Section 22, Article IX of the City Charter with regard to
       streets and drainage[.]

       We conclude that Perez’s claims based on the validity of the Drainage Fee

Ordinance in its own right are ripe for determination. We therefore turn to Perez’s

standing to bring these claims.

C.     Perez’s Standing

       In her first issue on appeal, Perez argues that she has standing to assert a legal

claim for reimbursement of all drainage charges made under the Drainage Fee

Ordinance because, as a municipal taxpayer who paid, and continues to pay under




                                           16
duress, an illegal drainage tax assessed by the City, she can demonstrate both that

she has suffered a particularized injury and that she has standing to sue as a taxpayer.

      1.     Perez failed to demonstrate a particularized injury

      Perez argues that she “owned two separate real properties which were

assessed on a monthly basis for drainage charges.” As evidence, Perez provided her

water bills with a line item for drainage charges and also including assessment of

additional late payment fees. Perez argues that these payments demonstrate a

particularized injury, thereby giving her standing to seek reimbursement of the paid

drainage fees. She argues in her appellate brief, “Indeed, no one but Perez was

charged with this illegal drainage fee for these two specific pieces of real estate, and

no one was forced to pay an illegal fee under duress for these two specific parcels of

land except for [Perez].” The trial court found, however, that she suffered no

particularized injury and thus had “no standing to challenge the validity, legality,

and/or constitutionality of the assessment and/or collection of City of Houston

drainage fees.”

      “In general, taxpayers do not have a right to bring suit to contest government

decision-making because . . . governments cannot operate if every citizen who

concludes that a public official has abused his discretion is granted the right to come

into court and bring such official’s public acts under judicial review.” Bland Ind.

Sch. Dist., 34 S.W.3d at 555. Thus, unless standing to sue the government is


                                          17
conferred by statute, “taxpayers must show as a rule that they have suffered a

particularized injury distinct from that suffered by the general public in order to have

standing to challenge a government action or assert a general right.” Id. at 555–56.

      We begin our analysis by recognizing that although Perez has pled that she

paid “illegal” drainage fees, she has cited to no authority declaring illegal the

Drainage Fee Ordinance pursuant to which the fees were assessed and collected.

Perez herself seeks such a declaration in the underlying suit, but she does not cite to,

nor could we find, any authority declaring the Drainage Fee Ordinance invalid or

void. Perez makes multiple references to the Dacus case; however, as discussed

above, that case addressed only the validity of the ballot language for the Proposition

I Charter Amendment and did not address the validity of the Drainage Fee

Ordinance. See, e.g., Dacus III, 2017 WL 536647, at *2. Thus, Perez misconstrues

the facts of this case when she asserts that she was forced to pay “illegal” fees.

      Accordingly, Perez cannot rely on the line of cases she cites in her brief on

appeal, which provide for, as she characterizes it, “reimbursement of illegal fees and

taxes . . . when the public entity compels compliance with a void law and subjects a

person to punishment if he refuses or fails to comply.” See, e.g., State v. Akin Prods.

Co., 286 S.W.2d 110, 110-12 (Tex. 1956) (holding, where supreme court had

previously held tax on citrus industry unconstitutional in its entirety and

plaintiffs/taxpayers had obtained permission to sue State for recovery of funds


                                          18
collected under that unconstitutional act, that taxes paid under duress were

recoverable). These cases do not apply to a situation, like the one here, where the

underlying law—here, the Drainage Fee Ordinance—has not yet been declared

invalid.

      To establish that she suffered a particularized injury that conferred standing

upon her, Perez had to demonstrate she “suffered a particularized injury distinct from

that suffered by the general public” by the drainage fees collected pursuant to the

Drainage Fee Ordinance. See Bland Indep. Sch. Dist., 34 S.W.3d at 555–56. Perez

argues that she suffered a unique injury distinct from that suffered by the general

public because she is the only person who was required to pay the drainage fees

associated with her unique pieces of property. However, this is insufficient to

demonstrate a unique injury. The municipal fees were assessed to property owners

across the City. The payment of municipal fees, like the drainage fees assessed

against Perez’s properties here and numerous other properties in the City, does not

constitute a particularized injury sufficient to confer standing to sue for recovery of

the fees. See id.

      We overrule this part of Perez’s first issue.

      2.     Perez’s standing as a taxpayer

      Perez also argues that she has demonstrated her standing as a taxpayer.




                                          19
      There is a long-established exception to the general rule that a particularized

injury is required for taxpayer standing: “a taxpayer has standing to sue in equity to

enjoin the illegal expenditure of public funds, even without showing a distinct

injury.” See id. However, under this exception, “[a] taxpayer may maintain an

action solely to challenge proposed illegal expenditures; a taxpayer may not sue to

recover funds previously expended.” Williams, 52 S.W.3d at 179 (emphasis added).

The courts have long maintained this broader grant of taxpayer standing to enjoin

future public spending without permitting the taxpayer to recover funds previously

expended, stating,

      When a taxpayer brings an action to restrain the illegal expenditure . . .
      of tax money he sues for himself and it is held that his interest in the
      subject matter is sufficient to support the action; but when the money
      has already been spent, an action for its recovery is for the [taxing
      entity]. The cause of action belongs to it alone.


Bland Indep. Sch. Dist., 34 S.W.3d at 556 (quoting Hoffman v. Davis, 100 S.W.2d

94, 96 (1937)). The courts reason that the exception to the particularized injury

requirement for taxpayer lawsuits to enjoin future public expenditures, while

restricting the recovery of monies already spent to the taxing entity alone,

“unquestionably impinges on the policies of restricting taxpayer lawsuits, but,

strictly limited, it provides important protection to the public from the illegal

expenditure of public funds without hampering too severely the workings of the

government.” Id.

                                         20
      Implicit in the rule that Texas taxpayers have standing to enjoin the future

illegal expenditure of public funds without showing a particularized injury are two

requirements: “(1) that the plaintiff is a taxpayer; and (2) that public funds are

expended on the allegedly illegal activity.” Williams, 52 S.W.3d at 179. Thus, “[t]o

be entitled to municipal taxpayer standing a litigant must prove that the government

is actually expending money on the activity that the taxpayer challenges; merely

demonstrating that tax dollars are spent on something related to the allegedly illegal

conduct is not enough.” Id. at 181.

      Perez argues that she has standing to bring claims against the City as a

municipal taxpayer, arguing that she pays both the allegedly illegal drainage fees

and ad valorem taxes. She argues that the City “is going to spend tax dollars illegally

because each year the Houston City Council passes an annual fiscal budget which

spends hundreds of millions of dollars of assessed and collected drainage charges on

projects not permitted under law” and in violation of the revenue cap on ad valorem

taxes. Thus, Perez sought, in part, an injunction against future assessments and

expenditures of drainage fees.

      The City argues that Perez’s payment of her water bill, which includes the

drainage fees, does not qualify her as a taxpayer and that, although Perez alleged

that she paid ad valorem taxes, she did not present any evidence that she has paid




                                          21
such taxes. The City relies on Williams v. Lara to support its argument on this

ground.

      In Williams, the Texas Supreme Court held that payment of sales tax does not

confer taxpayer standing. 52 S.W.3d at 179–80. It reasoned:

      Taxpayer standing is a judicially created exception to the general
      standing rule. We have already limited the applicability of this
      exception by narrowly defining the type of action a taxpayer can
      maintain. . . . Extending taxpayer standing to those who pay only sales
      tax would mean that even a person who makes incidental purchases
      while temporarily in the state could maintain an action. This would
      eviscerate any limitation on taxpayer suits. It would allow a person with
      virtually no personal stake in how public funds are expended to come
      into court and bring the government’s actions under judicial review.
      This is not what this Court envisioned in crafting the taxpayer-standing
      exception. Accordingly, we hold, for prudential reasons, that paying
      sales tax does not confer taxpayer standing upon a party.

Id. at 180 (internal citations omitted).

      Perez’s situation is clearly distinguishable from the plaintiff in Williams.

Perez alleged, and presented some evidence in support of her allegations, that she

owns property in the City and pays drainage fees assessed on that property. 4 Thus,


4
      The parties do not address in any substantive way the question of whether the
      drainage fees here may properly be treated as taxes rather than fees—Perez
      repeatedly refers to it as a “tax” while the City calls it a “fee.” However, we note
      that the City’s decision whether to label a charge a “fee” rather than a “tax” is not
      binding on this Court’s analysis. See TracFone Wireless, Inc. v. Comm’n on State
      Emergency Commc’n, 397 S.W.3d 173, 175 n.3 (Tex. 2013). “A charge is a fee
      rather than a tax when the primary purpose of the fee is to support a regulatory
      regime governing those who pay the fee.” Id. It does not appear that the drainage
      fees here supported a regulatory regime. Rather, the purpose of the drainage fee was
      to generate revenue to fund drainage improvements throughout the City, and, thus,
      we conclude that Perez’s payment of the drainage fees was sufficient to confer upon
                                           22
she did more than “make[]incidental purchases while temporarily in the state.” See

id.   Rather, her payment of the drainage fees associated with her property

demonstrates that she maintains a personal stake in how the City’s drainage funds

are collected and expended. We conclude that Perez has established the first

requirement for taxpayer standing, i.e., that she is a taxpayer. See id. at 179 (implicit

in taxpayer standing exception from general rule requiring particularized injury are

two requirements: (1) that the plaintiff is a taxpayer, and (2) that public funds are

expended on allegedly illegal activity).

      The City also argues that Perez has failed to prove that the City is actually

expending money illegally. Again, the City cites Williams, which stated, “To be

entitled to municipal taxpayer standing, a litigant must prove that the government is

actually expending money on the activity that the taxpayer challenges; merely

demonstrating that tax dollars are spent on something related to the allegedly illegal

conduct is not enough.” Id. at 181. Perez’s live petition alleged, in part, that the City

was illegally assessing, collecting, and expending funds for drainage and street

improvements pursuant to the allegedly void Ordinance. The jurisdictional evidence

indicates that the City passed the complained-of Ordinance and that it has

implemented it. This is sufficient to demonstrate for jurisdictional purposes that the



      her standing to challenge the assessment and expenditure of those funds, as set out
      above.
                                           23
City is actually assessing and expending money based on the complained-of

Ordinance. See id.; see also Bland Indep. Sch. Dist., 34 S.W.3d at 554 (although

court can and should consider evidence to extent necessary to resolve jurisdictional

claim, plea to jurisdiction “does not authorize an inquiry so far into the substance of

the claims presented that plaintiffs are required to put on their case simply to

establish jurisdiction”).

      Accordingly, we conclude that Perez has established taxpayer standing here.

See Williams, 52 S.W.3d at 179. However, Perez’s standing as a taxpayer is limited

to maintaining “an action solely to challenge proposed illegal expenditures; a

taxpayer may not sue to recover funds previously expended.” See id. (emphasis

added). Perez has standing to seek a declaration that the Drainage Fee Ordinance is

illegal and to seek to enjoin the prospective assessment, collection, and expenditure

of drainage fees based on a declaration that the Ordinance is in fact illegal, assuming

that all other criteria for subject-matter jurisdiction are met—including the City’s

and the individually named defendants’ lack of governmental immunity to her suit.

However, Perez lacks standing to assert her claims for reimbursement for any taxes

already assessed, collected, or paid pursuant to the Drainage Fee Ordinance. See id.;

Bland Indep. Sch. Dist., 34 S.W.3d at 556; Hoffman, 100 S.W.2d at 96.

      We sustain Perez’s first issue in part.




                                          24
D.    The City’s and the ‘Ultra Vires’ Defendants’ Immunity to Perez’s Suit

      In her second issue, Perez argues that she properly asserted ultra-vires claims

for declaratory and injunctive relief. And, in her third issue, Perez asserts that the

City’s immunity was waived by the statutory requirement that the City be joined as

a necessary party to her claims asserting the unconstitutionality and/or illegality of

specific city ordinances. We address these issues together.

      The Legislature has mandated that municipalities be made parties to

declaratory judgment actions that challenge the validity of municipal ordinances.

TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2015). “For claims

challenging the validity of ordinances or statutes . . . the Declaratory Judgment Act

requires that the relevant governmental entities be made parties, and thereby waives

immunity.” Texas Lottery Com’n v. First State Bank of DeQueen, 325 S.W.3d 628,

633–34 (Tex. 2010) (quoting Heinrich, 284 S.W.3d at 373 n.6) (citing section

37.002(b)). Generally, however, suits against state officers in the exercise of their

discretion are barred by governmental immunity. Houston Belt & Terminal Railway

Co. v. City of Houston, 487 S.W.3d 154, 163 (Tex. 2016). Nevertheless, when a

state officer acts beyond his legally granted discretion, i.e., without legal authority,

his acts are not protected. Id. Thus, “suits to require state officials to comply with

statutory or constitutional provisions are not prohibited by sovereign immunity.”

Heinrich, 284 S.W.3d at 372.


                                          25
      “[T]he rule that ultra vires suits are not ‘suits against the State within the rule

of immunity of the State from suit’ derives from the premise that the ‘acts of officials

which are not lawfully authorized are not acts of the State.’” Id. at 373 (quoting

Cobb v. Harrington, 190 S.W.2d 709, 712 (1945)). Because these acts are not acts

of the State, “it follows that these suits cannot be brought against the state, which

retains immunity, but must be brought against the state actors in their official

capacity[,] . . . even though the suit is, for all practical purposes, against the state.”

Id. (citing Brandon v. Holt, 469 U.S. 464, 471—72, 105 S. Ct. 873, 878 (1985)).

      To fall within the ultra vires exception to state actors’ governmental

immunity, “a suit must . . . allege, and ultimately prove, that [a state] officer acted

without legal authority or failed to perform a purely ministerial act.” Id. at 372;

Turner v. Robinson, 534 S.W.3d 115, 126 (Tex. App.—Houston [14th Dist.] 2017,

pet. denied). A state officer acts without legal authority if he “exceeds the bounds

of his granted authority or if his acts conflict with the law itself.” Turner, 534 S.W.3d

at 126. But the ultra vires rule is subject to important qualifications. Heinrich, 284

S.W.3d at 373. Under the ultra vires exception, suits against public officials to

enjoin prospective illegal activity, as measured from the date of the injunction, are

not barred by governmental immunity. Id. at 376; see Edelman v. Jordan, 415 U.S.

651, 669, 94 S. Ct. 1347, 1358 (1974) (using entry of injunction to distinguish

retrospective from prospective relief). But retrospective monetary claims against


                                           26
state officers are barred by governmental immunity. Heinrich, 284 S.W.3d at 374.

“As Heinrich made clear, immunity for an ultra vires act is only a waiver with regard

to bringing future acts into compliance with the law,” not with regard to permitting

suits to recover monies already assessed, collected, or spent. Turner, 534 S.W.3d at

126 (quoting City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 569 (Tex.

App.—Houston [14th Dist.] 2015, pet denied) (emphasis added)). The declaratory

judgments act may not be used to circumvent immunity. Heinrich, 284 S.W.3d at

374.

       Here, Perez contends that the Drainage Fee Ordinance, creating a drainage

utility and allowing that utility to assess and collect drainage fees pursuant the City’s

home-rule authority and the provisions of Local Government Code Chapter 552, is

illegal because it was created pursuant to a void charter amendment. And she seeks

to enjoin the collection of fees pursuant to that Ordinance and to recover damages

for herself “and all other persons and entities similarly situated” in the form of

reimbursement of all fees collected by the City pursuant to the Drainage Fee

Ordinance.

       We hold, first, that Perez has standing to sue the City and the ultra vires

defendants to determine the legality of the Drainage Fee Ordinance and so to

determine whether the City officers charged with assessing and collecting taxes and

spending public monies as authorized by the Ordinance are acting without legal


                                           27
authority, and thus ultra vires, in assessing and collecting fees and spending public

money under the Ordinance and whether those activities may therefore be enjoined.

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b); Tex. Lottery Comm’n, 325

S.W.3d at 633; Heinrich, 284 S.W.3d at 373 n.6; see also Houston Belt & Terminal

Ry. Co., 487 S.W.3d at 164 (stating that primary objective in construing ordinance

is to ascertain and give effect to enacting body’s intent). Just as she has standing to

seek to enjoin future expenditures, Perez has standing to sue the individual

defendants charged with carrying out the provisions of the allegedly illegal

Ordinance. Bland Indep. Sch. Dist., 34 S.W.3d at 556 (“[A] taxpayer has standing to

sue in equity to enjoin the illegal expenditure of public funds, even without showing

a distinct injury.”). This is so because the individual defendants do not have

governmental immunity for their future acts to enforce the Ordinance—to the extent

it is determined to be invalid—in their official capacities. Heinrich, 284 S.W.3d at

373. However Perez may maintain this taxpayer action solely to seek to enjoin

proposed future illegal expenditures as measured from the date of any injunction she

might obtain, not to recover funds previously expended. See Williams, 52 S.W.3d

at 179; Heinrich, 284 S.W.3d at 376; Bland, 34 S.W.3d at 556; Hoffman, 100 S.W.2d

at 96.

         Accordingly, we sustain Perez’s second and third issues insofar as they assert

her standing to seek a declaration that the Drainage Fee Ordinance is illegal, and,


                                           28
therefore, that the continued assessment, collection, and expenditure of fees under

the Drainage Fee Ordinance is illegal. And we sustain those issues insofar as she

alleges that the individual ultra vires defendants do not have governmental immunity

to her suit for an injunction against the prospective assessment, collection, and

expenditure of taxes in the event the Ordinance is declared invalid and only from the

date an injunction issues. We otherwise overrule Perez’s second and third issues.

E.    Ripeness of Constitutional Claims

      In her fourth issue, Perez challenges the trial court’s determination that her

constitutional claims are not ripe.

      As stated above, the ripeness doctrine prohibits suits involving “uncertain or

contingent future events.” Perry, 66 S.W.3d at 250. An issue is ripe for adjudication

and decision when at the time a lawsuit is filed the facts are sufficiently developed

“so that an injury has occurred or is likely to occur, rather than being contingent or

remote.” Waco Indep. Sch. Dist., 22 S.W.3d at 851–522. However, for Perez to have

standing, the live controversy must continue to exist between herself and the

defendants “at every stage of the legal proceedings, including the appeal.” Williams,

52 S.W.3d at 184.

      We conclude, on the basis of the foregoing facts and authorities, that the issues

whether the Drainage Fee Ordinance is illegal and, hence, whether the assessment

and collection of fees under the Ordinance is illegal and should be enjoined are ripe.


                                         29
The City has relied on its authority pursuant to the Texas Constitution’s home-rule

authority provision and Local Government Code Chapter 552 to collect the fees

pursuant to the Drainage Fee Ordinance and has collected and expended fees on the

basis, and Perez has claimed that she has been injured by the City’s collection of

fees pursuant to that Ordinance. Thus, the issues are sufficiently developed so that

Perez’s claim seeking a declaration that the Ordinance is invalid and an injunction

against the City’s future collection or expenditure of funds pursuant to that

Ordinance is ripe for adjudication.

      Accordingly, we sustain Perez’s fourth issue contending that the controversy

between herself and the City is ripe for decision.




                                         30
                                    Conclusion

      We affirm the trial court’s dismissal of Perez’s claim for reimbursement of

drainage and street improvement fees for lack of subject-matter jurisdiction. We

further affirm the dismissal her claims against the City on grounds of governmental

immunity insofar as the claims seek an injunction against the assessment, collection,

and expenditure of taxes pursuant to the Drainage Fee Ordinance prior to any

determination that the Ordinance is in fact invalid. We reverse the dismissal as it

relates to Perez’s claim that the Drainage Fee Ordinance is invalid and her claim

seeking to enjoin any future collection or expenditure of fees pursuant to that

Ordinance, and we remand for further proceedings consistent with this opinion.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Brown, and Lloyd.




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