                                   NO. 07-03-0242-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 14, 2003

                         ______________________________

                       CITY OF CANYON, TEXAS, APPELLANT

                                            V.

              MIKE McBROOM AND TIMOTHY ETHAN McBROOM
      AS NEXT FRIEND OF JOHN CURTIS McBROOM, A MINOR, APPELLEES


                       _________________________________

            FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                  NO. 52,769-A; HONORABLE HAL MINER, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                        OPINION


      City of Canyon, Texas, appeals from denial of its plea to the jurisdiction in a suit to

invalidate amendments to its zoning ordinance and to enjoin issuance of construction

permits for property re-zoned by the amendments. We reverse in part, affirm in part, and

remand for further proceedings.
                                     BACKGROUND


       On April 7, 2003, the Canyon, Texas, City Commission adopted two amendments

to the City’s zoning ordinance. The amendments resulted in two tracts of land in the City

(the “Property”) being zoned RC-2 (commercial). As a result of the adoption of the zoning

amendments, Mike McBroom and Timothy Ethan McBroom, as next friend of John Curtis

McBroom, a minor, filed suit against the City (the “suit”). The McBrooms’ suit alleges that

the commercial zoning was proposed on behalf of Wal-Mart Stores, Inc., and that Wal-Mart

plans to build a Wal-Mart Super Center on the Property. The McBrooms further allege that

(1) the commercial zoning for the Property “does not comply with legal requirements for

zoning and is void”; and (2) the actions of the City Commission which they challenge “are

not in compliance with law.” Their pleadings specifically state that their suit is not for

money damages. The McBrooms pray for (1) injunctive relief pursuant to TEX . CIV. PRACT.

& REM . CODE ANN . § 65.011 prohibiting the City from issuing a building permit, approval of

a site plan or the taking of any other action allowing the building of structures on the

Property pursuant to the RC-2 zoning; and (2) judgment annulling the RC-2 zoning.


       Mike McBroom alleges and testified that he is a citizen, a resident of Canyon, and

owns a home within 2000 feet of the Property. He further alleges that before he purchased

his home he investigated and found that zoning in the area, including the one tract of the

Property then within the City, was residential. Through his investigation he also found that

part of the property he purchased for his home as well as the one tract of the Property then

outside of the City lay in a flood plain, and that the City had a policy of not allowing

construction in flood plain areas. He asserts that he relied on the zoning status and the

                                             2
policy of the City when he purchased his home. Mike claims, and testified, that if Wal-Mart

constructs a Super Center on the Property, the value of his nearby property will be

adversely affected and his flood insurance premium might increase because construction

in the flood plain will increase the elevation of the construction site and thus increase the

possibility of flooding on nearby land.


          John Curtis McBroom, a minor, is Mike’s grandson. John, acting through his

father Ethan, alleges that he is a student at Canyon Crestview Elementary School which

is located several hundred feet from the proposed site for the Super Center. John claims

that he and other children attending Crestview will be exposed to an increased risk of harm

from increased automobile traffic if Wal-Mart builds a Super Center on the Property.

Mike’s testimony was the only evidence as to John’s attendance at Crestview. Mike

testified that John might or might not attend Crestview during the upcoming school year as

John’s family had not yet decided which school he would attend.


       The City challenges the trial court’s subject-matter jurisdiction. The City asserts that

(1) it has sovereign immunity from suit and (2) both McBroom plaintiffs lack standing.


       The parties stipulated that the City is a home rule city. The trial court denied the

City’s jurisdictional challenge. No injunctive relief was granted.


       The City appeals from the ruling denying its challenge to the jurisdiction.           It

maintains via two issues that its sovereign immunity from suit and the McBrooms’ lack of

standing each deprived the trial court of subject-matter jurisdiction. The City prays that we

render judgment dismissing the lawsuit. The McBrooms urge that the City’s appeal is

                                              3
frivolous and seek recovery of attorney’s fees as damages under Texas Rule of Appellate

Procedure 45.


                                      JURISDICTION


       Subject matter jurisdiction is essential to the authority of a court to decide a case.

Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject

matter jurisdiction is never presumed. Id. at 443-44. It is incumbent on a plaintiff to allege

facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. at 446;

Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967). The trial court

may consider evidence when making its determination as to jurisdiction, and must do so

when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 555 (Tex. 2000).


       Jurisdiction is a legal question subject to de novo review on appeal. Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In making its de novo review, an

appellate court construes the pleadings in favor of the plaintiff and looks to the pleader’s

intent. See Texas Ass’n of Bus., 852 S.W.2d at 446. The appellate court takes the facts

pled as true and considers any evidence in the record to the extent necessary to resolve

the issue of subject matter jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d at 555.


                         ISSUE ONE: SOVEREIGN IMMUNITY


       In response to the City’s sovereign immunity pleading, the McBrooms contend that

their suit is not a “suit against the State” within the construct of the doctrine of sovereign


                                              4
immunity. They claim that because their suit is not a “suit against the State,” sovereign

immunity is inapplicable. We are referred, in part, to Federal Sign v. Texas S. Univ., 951

S.W.2d 401 (Tex. 1997).


                                          A. Law


       Sovereign immunity encompasses two principles that protect the state and other

governmental entities in suits for money damages: immunity from suit and immunity from

liability. Id. at 405. Immunity from suit deprives a trial court of subject-matter jurisdiction

and is properly asserted in a plea to the jurisdiction. Travis County v. Pelzel & Assocs.

Inc., 77 S.W.3d 246, 248 (Tex. 2002). A municipality, as a political subdivision of the state,

is entitled to sovereign immunity. See City of Lancaster v. Chambers, 883 S.W.2d 650,

658 (Tex. 1994).


       In determining the sovereign immunity issue, suits against the State or its entities

to determine parties’ rights are distinguished from suits seeking damages. See Federal

Sign 951 S.W.2d at 404. See also TEX . CIV. PRACT. & REM . CODE ANN . §§ 37.004(a),

37.006(b) (Vernon 1997). An action against an agency by a person for determination and

protection of that person’s rights is not a suit against the State within the rule of sovereign

immunity. See Cobb v. Harrington, 190 S.W.2d 709, 712, 144 Tex. 360 (1945).


                                         B. Analysis


       We must construe the McBrooms’ pleadings in their favor and look to their intent in

determining jurisdiction. See Texas Ass’n of Bus., 852 S.W.2d at 446. Their pleadings


                                              5
generally allege that the zoning in question does not comply with legal requirements and

is void.1 They specifically disclaim seeking money damages, and affirmatively state that

the suit seeks only to invalidate actions of the City Commission which the McBrooms claim

to have been in violation of law. They pray, in part, for judgment annulling the RC-2

zoning.


       The lawsuit is not of a type such as those reflected by Denver City Indep. Sch. Dist.

v. Moses, 51 S.W.3d 386 (Tex.App.--Amarillo 2001, no pet.), and Ware v. Miller, 82

S.W.3d 795 (Tex.App.--Amarillo 2002, pet. denied). If the plaintiffs had prevailed on the

claims asserted in those suits, judgments for money against the governmental entities

would have resulted. See Denver City Indep. Sch. Dist., 51 S.W.3d at 392-93; Ware, 82

S.W.3d at 804. If the McBrooms prevail on the claims in their pleadings, a money

judgment against the City will not be the result.


       The suit as currently pled is not a “suit against the State” within the meaning of that

phrase as it is used in determining sovereign immunity from suit. See Cobb, 190 S.W.2d

at 712.


       The City’s issue asserting sovereign immunity is overruled.


                                  ISSUE TWO: STANDING


       In challenging the McBrooms’ standing to bring their claims, the City posits that

neither of the McBrooms asserts a particularized injury or adverse impact distinguishable


       1
           No issue as to the generality of the pleading is before us.

                                                6
from that of the general public. The City relies on Bland Indep. Sch. Dist., 34 S.W.3d at

553-54, for the proposition that absent such a particularized, individual injury, a citizen may

not maintain an action against the City.


       In support of their standing claim, the McBrooms refer us to precedent involving

standing issues as to persons suing over both non-zoning and zoning matters. See Brown

v. Todd, 53 S.W.3d 297 (Tex. 2001) (mayor’s executive order); Leach v. City of North

Richland Hills, 627 S.W.2d 854 (Tex.App.--Ft. Worth 1982, no writ) (zoning); Lozano v.

Patrician Movement, 483 S.W.2d 369 (Tex.Civ.App.--San Antonio, 1972 writ ref’d n.r.e.)

(zoning).


                                          A. Law


       The general test for standing in Texas requires that there be a real controversy

between the parties which will be determined by the judicial declaration sought. Texas

Ass’n of Bus., 852 S.W.2d at 446. A plaintiff may not maintain an action absent standing

to litigate the matters made the basis of the lawsuit, see Hunt v. Bass, 664 S.W.2d 323,

324 (Tex. 1984), because standing is a component of subject matter jurisdiction. See

Bland Indep. Sch. Dist., 34 S.W.3d at 553-54. A plaintiff does not have standing unless

the subject matter of the litigation affects the plaintiff differently than other members of the

general public. See Hunt, 664 S.W.2d at 324. One framework for testing a person’s

standing directs inquiries into whether (1) the person has sustained or is in immediate

danger of sustaining a direct injury as a result of the wrongful act of which he complains;

(2) there is a direct relationship between the alleged injury and the claim sought to be


                                               7
adjudicated; (3) the person has a personal stake in the outcome of the case; (4) the

challenged action has caused the person some injury in fact; or (5) the person is an

appropriate party to assert the public's interest in the matter as well as his or her own

interest. See Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 89 (Tex.App.--Houston

[14th Dist.] 1997, pet. denied).


                                       B. Analysis


       The factual allegations of the McBrooms’ pleadings, which we take as true in

determining the appeal, include allegations that John McBroom attends a public school

located several hundred feet from the Property and that he and other children attending

the school will be subjected to an increased risk of harm because of increased traffic as

a result of the zoning amendments and proposed construction by Wal-Mart. According to

the evidence, his future attendance at Crestview is speculative. Assuming, without

deciding, however, that he will be attending Crestview, neither the pleadings nor the

evidence support a claim that he has sustained or is in immediate danger of sustaining a

direct, individualized personal or economic injury. He advances no basis for us to conclude

that he is an appropriate party to assert the public’s interest in the City Commission’s

actions and zoning enactment. Id.


       Neither the facts pled nor the evidence show that John has an individualized interest

or injury different from other members of the general public who will be exposed to

increased traffic, regardless of whether the other members of the public attend school or




                                             8
simply live, work, or visit in the area. John has not shown standing to assert the claims

made. We sustain the City’s issue as to him.


       Mike McBroom alleges and testified that he owns a home and land near the

Property. Part of Mike’s land and part of the Property lie in a flood plain. Mike alleges and

testified that he is in danger of sustaining a direct, individual injury from increased flooding

of his land as well as decreased value of his property as a result of the zoning

amendments and the proposed construction.


       Mike McBroom claims an injury peculiar to him which is not common to the public

in general. See Lozano, 483 S.W.2d at 372. He has standing to attempt to prove his

allegations in a trial.


       Without expressing an opinion regarding the validity of his cause of action or the

merits of his claims, we overrule the City’s challenge to Mike McBroom’s standing.


                                       CONCLUSION


       As to John Curtis McBroom, the order of the trial court is reversed and his claims

are dismissed. As to Mike McBroom, the order of the trial court is affirmed and the cause

is remanded to the trial court for further proceedings.


       The McBrooms’ prayer for damages because of a frivolous appeal is denied.




                                                   Phil Johnson
                                                   Chief Justice

                                               9
