                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-14-00781-CV

                                     CITY OF SHAVANO PARK,
                                             Appellant

                                                     v.

   ARD MOR, INC., Texas Ardmor Properties, L.P., and Texas Ardmor Management, LLC,
                                    Appellees

                      From the 407th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014-CI-10796
                              Honorable Richard Price, Judge Presiding

                            OPINION ON MOTION FOR REHEARING

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 28, 2015

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, REMANDED

           This is an appeal from the trial court’s denial of appellant’s plea to the jurisdiction. In an

opinion and judgment dated July 29, 2015, we affirmed in part, reversed and rendered a dismissal

in favor of appellant in part, and remanded for further proceedings. On August 13, 2015, appellant

filed a motion for rehearing. Although we deny the motion for rehearing, we withdraw our opinion

and judgment of July 29, 2015, and issue this opinion and judgment in their place for the purpose

of clarifying why we believe remand is appropriate.
                                                                                            04-14-00781-CV


                                           BACKGROUND

        Texas Ardmore Properties, LP and Texas Ardmore Management, LLC are the owners of

real property located in Bexar County, Texas. Ard Mor, Inc. operates a childcare facility on the

property. 1 Lockhill Ventures, LLC owns two lots of land adjacent to the childcare facility.

Lockhill Ventures intends to build a gas station and gas storage tanks next to Ard Mor’s facility.

Lockhill Ventures’ property is subject to restrictive covenants contained in a Declaration of

Protective Covenants.      The covenants permitted uses include: “[o]ffice, commercial, retail,

restaurants, financial institutions, multi-family, office service, schools, churches, health care or

medical facilities, or as otherwise permitted to the maximum extent by applicable zoning laws or

other Governmental Regulations, unless expressly prohibited herein.” [Emphasis added.] The

covenants prohibited uses include: (1) “any use prohibited by applicable zoning laws or other

Governmental Regulations,” (2) “[a]ny use which is noxious or offensive by reason of emission

or discharge of excessive . . . fumes or wastes, odorous, or particulate matter,” or (3) the “[s]torage,

handling or use of explosive material.”

        The City of Shavano Park is located in Bexar County. The City’s zoning ordinances and

tables of permitted uses do not specify gasoline filling stations as a permitted use. Lockhill

Ventures’ property was not originally within the City limits. However, the City and Lockhill

Ventures entered into a “Development and Annexation Agreement” (the “Agreement”) under

which (1) the parties agreed to annexation of Lockhill Ventures’ property by the City, (2) the

parties acknowledged the proposed zoning of the property within the City limits, and (3) the City

agreed to initiate zoning of the property, upon approval by its city council of the annexation

petition and the Agreement, to allow Lockhill Ventures the right to develop the property in


1
 Texas Ardmore Properties, LP; Texas Ardmore Management, LLC; and Ard Mor, Inc. are collectively referred to
herein as appellees.

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                                                                                       04-14-00781-CV


accordance with the terms of the Agreement. The Agreement defined the “project” as follows:

“The Development of the Property as two buildings being; (i) a convenience store, with gasoline

sales, lottery and lotto, tobacco and beer and wine sales and automatic carwash; and (ii)

approximately 2400 feet of retail or office lease space provided that the retail use complies with

the B2 permanent zoning assigned the property.” The Agreement also provided that, in the event

city council action placed the property in a zoning district or classification that prohibited the uses

proposed by the Agreement, the parties agreed Lockhill Ventures could either terminate the

Agreement or “pursuant to Texas Local Government Code Section 43.002 and to the extent

reasonably necessary, retain the right to develop and use the Property for the purposes authorized

under [the] Agreement.”

       The City of Shavano Park city council was scheduled to consider Lockhill Ventures’

proposal for the Agreement on July 9, 2014. On that same date, appellees filed suit against both

Lockhill Ventures and the City. In their petition, appellees requested a declaration that Lockhill

Ventures’ intended use of its property did not comply with the Declarations of Protective

Covenants or with the City’s zoning ordinances. Appellees requested an injunction restraining

Lockhill Ventures from any development of the property or improvement of the property for the

purpose of dispensing gasoline until the trial court had an opportunity to construe the ordinances

to determine the parties’ rights and obligations under the covenants, zoning ordinances, and other

applicable laws and regulations. Appellees did not seek injunctive relief against the City.

       Appellees asked the trial court to construe the City’s ordinances and other materials and

declare: (1) the Agreement void and unenforceable because it is unlawful contract zoning, (2) the

Agreement violates existing ordinances, (3) a City ordinance to annex the property resulted from

an illegal contract, (4) the City’s interpretation of its ordinances to allow Lockhill Ventures to

develop its property in a manner that violates the City’s Code of Ordinances violates equal
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protection rights, and (5) the actions of the City and its officials in contracting with Lockhill

Ventures and passing the annexation ordinance were ultra vires acts. Appellees also asserted a

breach of contract claim against Lockhill Ventures, alleging Lockhill Ventures breached the

Declaration of Protective Covenants.

        On July 9, the trial court granted a temporary restraining order restraining Lockhill

Ventures from commencing or continuing development of its property. The trial court set a hearing

on the requested temporary injunction for July 23, 2014. On the evening of July 9, the City of

Shavano Park city council approved the Development and Annexation Agreement and passed an

ordinance annexing the property within the City limits. 2

        On July 23, 2014, the City filed a plea to the jurisdiction, but did not set it for a hearing

when the plea was filed. The hearing on the temporary injunction commenced on July 30, 2014,

continued over several days, and concluded on September 19, 2014. A few days before the final

day of the injunction hearing, the City filed a supplement to its plea to the jurisdiction and set the

plea for a hearing on September 19, 2014.

        Over the various days of the hearing, the trial court heard evidence on the requested

temporary injunction. On day three of the hearing, the City asked the trial court to consider its

plea. The trial court declined the request on the grounds that the only matter set before the court

was the temporary injunction and the City was not enjoined by the temporary restraining order.

On the last day of the hearing, September 19, the City again asked the trial court to consider its

plea. The court later issued an order denying the plea without stating its grounds. A few days




2
  Ordinance No. O-2014-014 (hereinafter, the “annexation ordinance”) is the ordinance approved by the city council
that annexed Lockhill Ventures’ property.

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later, the trial court issued a temporary injunction against Lockhill Ventures enjoining Lockhill

Ventures from commencing or continuing development of its property. 3

           In this interlocutory appeal, we consider only whether the trial court erred by denying the

City’s plea to the jurisdiction.

                       APPELLEES’ REQUEST FOR DECLARATORY RELIEF

           As to the City, appellees asked the trial court to declare that Lockhill Ventures’ intended

use of its property to dispense gasoline violated the City’s ordinances in several ways, including

that (1) use of the premises as a gasoline station will involve business activities that violate

Ordinance 36-39(6) and (7); (2) the proposed use of the property is not a permitted use under any

zoning category in the City; (3) in the Agreement, the City agreed to permit Lockhill Ventures to

develop the property in a manner that violates several City zoning ordinances; and (4) the

Agreement does not comply with Code of Ordinances Section 36-40 and does not create or contract

for the creation of a Planned Unit Development in compliance with the ordinance. In an amended

pleading filed after the City filed its plea to the jurisdiction, appellees added additional requests

for declaratory relief: (1) declare the Agreement void and unenforceable because it is unlawful

contract zoning, (2) declare the annexation ordinance void, and (3) declare the actions of the City

and its officials in contracting with Lockhill Ventures and approving the annexation ordinance to

be ultra vires acts and violative of appellees’ equal protection rights. Thus, appellees’ requests for

declaratory relief against the City fall into four requests for relief: construe various City

ordinances, declare the Agreement void, declare the annexation ordinance void, and declare the

actions of the City and its officials to be ultra vires acts and violative of due process rights.




3
    The injunction is not the subject of the current appeal.

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       In its initial plea to the jurisdiction, the City asserted (1) pursuant to Texas Civil Practice

and Remedies Code section 37.006 it is not a necessary or proper party because appellees did not

challenge the validity of an ordinance; (2) no justiciable interest exists between appellees and the

City because the property lies within the City’s extraterritorial jurisdiction; therefore, the City’s

ordinances do not apply to the property; and (3) appellees lack standing to sue the City because no

act attributable to the City demonstrates any particularized harm to appellees. After appellees filed

their amended petition, the City filed a supplemental plea to the jurisdiction, asserting (1) only the

State may challenge the City’s annexation of Lockhill Ventures’ property in a quo warranto

proceeding; therefore, appellees lacked standing to bring a private cause of action; and (2)

appellees lacked standing to challenge the Agreement between the City and Lockhill Ventures.

       On appeal, the City asserts (1) appellees lack standing to seek a declaration that the

Agreement is void; (2) appellees’ request to invalidate the annexation ordinance passed by the city

council fails because only a quo warranto proceeding may challenge an annexation ordinance; (3)

appellees’ equal protection claim fails; (4) appellees’ ultra vires claim fails; and (5) appellees

cannot show a cognizable claim and (in a single sentence) the “court may interpret the City’s

existing ordinances without the City being a party if necessary to the covenants.”

                                   STANDARD OF REVIEW

       In its plea, the City asserted appellees failed to plead any proper underlying claims or seek

any relief that invoked the trial court’s jurisdiction, and appellees failed to demonstrate standing

in their suit against the City. Sovereign immunity from suit defeats a trial court’s subject matter

jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

Whether a court has subject matter jurisdiction is a question of law, which we review de novo.

Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In our review,

we do not delve into the merits of a case or decide whether the plaintiff should win or lose on its
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claims. City of Argyle v. Pierce, 258 S.W.3d 674, 682 (Tex. App.—Fort Worth 2008, pet. dism’d).

Instead, we merely decide whether the trial court has the power to reach the merits of those claims.

Id.

       To prevail on a plea to the jurisdiction, a party must show that even if all the allegations in

the plaintiff’s pleadings are taken as true, an incurable defect apparent on the face of the pleadings

makes it impossible for the pleadings to confer jurisdiction on the trial court. Rylander v. Caldwell,

23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.). When a plea to the jurisdiction challenges

the pleadings, we determine if the plaintiff has alleged facts that affirmatively demonstrate the

court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings

liberally in favor of the plaintiff and look to the plaintiff’s intent. Id. 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. Id. at 226-27. If the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend. Id. at 227.

       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, as the trial court is required to do. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555

(Tex. 2000) (confining evidentiary review to evidence that is relevant to the jurisdictional issue).

The procedure for a plea to the jurisdiction when evidence has been submitted to the trial court

mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; see also

TEX. R. CIV. P. 166a(c). Thus, the burden is on the governmental entity, as the movant, to present

evidence establishing the trial court lacks jurisdiction as a matter of law. Miranda, 133 S.W.3d at

228. Thereafter, the burden shifts to the plaintiff to demonstrate a disputed issue of material fact
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exists regarding the jurisdictional issue. Id. If the evidence creates a fact question regarding

jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact

finder. Id. at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law. Id. at 228.

                           DECLARATION THAT DEVELOPMENT
                          AND ANNEXATION AGREEMENT IS VOID

        In their petition, appellees asked the trial court to declare the Agreement between the City

and Lockhill Ventures void on the grounds that the Agreement is improper contract zoning.

Generally, a city has authority to annex an area if it is within its extraterritorial jurisdiction, or if it

owns the area. TEX. LOC. GOV’T CODE ANN. § 43.051 (West 2008); City of San Antonio v. Hardee,

70 S.W.3d 207, 211 (Tex. App.—San Antonio 2001, no pet.). And, there is no dispute a city has

authority to enter into a written contract with an owner of land located in the city’s extraterritorial

jurisdiction. See TEX. LOC. GOV’T CODE ANN. § 212.172(b) (West Supp. 2015). Therefore, the

City had the statutory right to enter into a development agreement with Lockhill Ventures

regarding annexation of Lockhill Ventures’ property. Id. The issue here is whether appellees have

standing to seek a declaration from the trial court that the Agreement between the City and Lockhill

Ventures is void on the grounds that the Agreement is improper contract zoning.

        The premise of the City’s argument on appeal appears to be that there is no injury appellees

can identify that is attributable to the Agreement; the purported contracting away of the City’s

legislative functions fails to show injury; the tax payer exception for particularized injury fails

because appellees are not taxpayers nor can they show the requisite expenditure; and no justiciable

interest exists because any complained-of acts occur in the future.




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       The general test for constitutional standing in Texas courts is whether there is a “real” (i.e.,

justiciable) controversy between the parties that will actually be determined by the judicial

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

Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—

Austin 2010, pet. denied). For a party to have standing to challenge a governmental action, as a

general rule, it “must demonstrate a particularized interest in a conflict distinct from that sustained

by the public at large.” South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007); see

Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“Our decisions have always required a plaintiff

to allege some injury distinct from that sustained by the public at large.”).

       The United States Supreme Court, applying standing principles that are analogous to Texas

standing jurisprudence at least with respect to challenges to governmental action, has explained

that the “irreducible constitutional minimum” of standing consists of three elements: (1) “the

plaintiff must have suffered an ‘injury in fact’—an invasion of a ‘legally protected’ [or cognizable]

interest which is (a) concrete and particularized and (b) ‘actual or imminent, not conjectural or

hypothetical’”; (2) “there must be a causal connection between the injury and the conduct

complained of”—the injury must be “fairly traceable” to the challenged action of the defendant

and not the independent action of a third party not before the court; and (3) it must be likely, and

not merely speculative, that the injury will be redressed by a favorable decision. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see Brown, 53 S.W.3d at 305 (“[W]e may

look to the similar federal standing requirements for guidance.”); Save Our Springs Alliance, Inc.,

304 S.W.3d at 878 (citing Lujan).

       The only testimony regarding particularized injury to the day care facility would have been

offered through the testimony of Sandra Nunez, a director of the Luv-N-Care Child Development

Center located on Ard Mor’s property. Ms. Nunez testified on the first day of the temporary
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injunction hearing, before the City actually set its plea to the jurisdiction for a hearing. Lockhill

Ventures’ attorney objected that Nunez’s testimony was irrelevant because, according to Lockhill

Ventures, appellees did not have the burden to show injury when a temporary injunction is sought

in the context of a breach of a restrictive covenant proceeding. The City expressed no opinion on

whether Nunez should testify. The trial court ruled it would “follow the law in this matter.”

         “[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings

but may consider evidence and must do so when necessary to resolve the jurisdictional issues

raised.” Bland Indep. Sch. Dist., 34 S.W.3d at 555. “The court should, of course, confine itself to

the evidence relevant to the jurisdictional issue.” Id. As stated above, the City, as the movant, had

the burden to present evidence establishing the trial court lacked jurisdiction as a matter of law.

Miranda, 133 S.W.3d at 228. The burden did not shift to the appellees until the City satisfied its

burden. Id. Our review of the record reveals that, over the first three days of the hearing, the trial

court focused on whether appellees established their entitlement to a temporary injunction. The

City did not set its plea to the jurisdiction for a hearing when it filed its initial plea. Instead, the

City waited until four days before the last day of the temporary injunction hearing to set its plea

for a hearing. By the last day, all except one witness had testified, 4 and Lockhill Ventures had

earlier objected to testimony about the daycare facility as irrelevant to the temporary injunction

issue. Because the record reveals a full evidentiary hearing on the City’s plea was not conducted

on the date the City set its plea for a hearing, we conclude appellees were not given an opportunity

to fully develop evidence relevant to the City’s jurisdictional challenge to appellees’ standing to

request that the trial court declare the Agreement void. See Rusk State Hosp. v. Black, 392 S.W.3d

88, 96, 100 (Tex. 2012) (“a plaintiff may not have had fair opportunity to address jurisdictional


4
  The last witness to testify and the only witness to testify on September 19 was Brian Lee Skelly, an expert in fire
investigations called by Lockhill Ventures. On September 19, the City cross-examined Skelly.

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                                                                                        04-14-00781-CV


issues by amending its pleadings or developing the record when the jurisdictional issues were not

raised in the trial court”); Bland Indep. Sch. Dist., 34 S.W.3d at 555 (acknowledging possibility of

remand for full evidentiary hearing). Therefore, remand on this claim is appropriate.

                         VALIDITY OF ANNEXATION ORDINANCE

       In addition to seeking a declaration that the Agreement was void, appellees also asked the

trial court to declare that the annexation ordinance resulted from an illegal contract between the

City and Lockhill Ventures; therefore, the contract is void and the resulting ordinance is void.

       The Texas Declaratory Judgment Act (the “DJA”) requires that relevant governmental

entities be made parties, and thereby waives immunity, for claims challenging the validity of

ordinances or statutes. TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2015) (“In any

proceeding that involves the validity of a municipal ordinance or franchise, the municipality must

be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to

be unconstitutional, the attorney general of the state must also be served with a copy of the

proceeding and is entitled to be heard.”); Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622

(Tex. 2011) (“For example, the state may be a proper party to a declaratory judgment action that

challenges the validity of a statute.”); Heinrich, 284 S.W.3d at 373 n.6 (same). However, the DJA

does not enlarge a trial court’s jurisdiction, and a plaintiff’s request for declaratory relief does not

confer jurisdiction on a court or change a suit’s underlying nature.

       On appeal, the City concedes section 37.006 may require a city be included in a suit when

an ordinance is sought to be invalidated. However, the City asserts a proper claim under section

37.006 must first exist. The City contends a proper claim does not exist here because only a quo

warranto proceeding brought by the State may challenge the annexation ordinance. Therefore, the

City concludes appellees do not have standing to bring a declaratory judgment action to invalidate

the annexation ordinance under section 37.006.
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       The determination of whether an individual landowner, as opposed to the State in a quo

warranto proceeding, has standing to challenge annexation turns on whether the challenge attacks

a city’s authority to annex the area or merely complains of a violation of statutory procedure. City

of San Antonio v. Summerglen Prop. Owners Ass’n Inc., 185 S.W.3d 74, 83 (Tex. App.—San

Antonio 2005, pet. denied); Hardee, 70 S.W.3d at 210. Procedural irregularities in the exercise of

a city’s annexation power may render the annexation voidable, but do not render the annexation

void. Summerglen Prop. Owners Ass’n, 185 S.W.3d at 83; Hardee, 70 S.W.3d at 211.

       The purpose of a quo warranto proceeding is to question the right of a person or

corporation, including a municipality, to exercise a public franchise or office. Alexander Oil Co.

v. City of Seguin, 825 S.W.2d 434, 436-37 (Tex. 1991). Thus, a quo warranto suit by the State on

behalf of its citizens is the only proper method to challenge procedural irregularities such as lack

of notice, adequacy of the service plan, lack of a quorum for hearing, and other defects in the

process of adopting an annexation ordinance. Id. at 438. Through quo warranto proceedings, “the

State acts to protect itself and the good of the public generally, through the duly chosen agents of

the State who have full control of the proceeding.” Fuller Springs v. State ex rel. City of Lufkin,

513 S.W.2d 17, 19 (Tex. 1974). Therefore, the State must bring the action to question irregular

use of the delegated annexation authority. Alexander Oil, 825 S.W.2d at 437. A quo warranto

proceeding settles the validity of the annexation on behalf of all property owners in the subject

area, and avoids the problems of successive individual suits that are only binding on the parties

and may yield conflicting results. Id.

       On the other hand, if the annexation ordinance is wholly void, a quo warranto proceeding

is not required. Id. at 436 (“The only proper method for attacking the validity of a city’s annexation

of territory is by quo warranto proceeding, unless the annexation is wholly void.”). When

objections are leveled to an annexation ordinance relating to irregularities that make it voidable
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only, such objections must be raised by quo warranto; but if an annexation ordinance is challenged

as wholly void, it may be challenged by collateral attack by any person affected by the ordinance.

Id. Private party challenges to annexation are permitted when the challenge is based on the

municipality exceeding the annexation authority delegated to it by the Legislature. Id. at 438

(citing as examples private causes of action challenging an annexation as exceeding statutory

municipal size limits, including areas within extraterritorial jurisdiction of another city, including

areas not contiguous with current city limits, and annexation of an area with a boundary description

that does not close); see also Hardee, 70 S.W.3d at 210 (same).

       Accordingly, in this appeal, we must determine whether appellees’ allegation that the

annexation ordinance is wholly void, and not merely voidable, is based on a procedural defect in

the annexation process, or on the City exceeding its annexation authority as delegated by the

Legislature.

       Appellees do not challenge any procedural defect in the annexation process, the City’s right

to annex Lockhill Ventures’ property, or the City’s right to include gasoline stations within its

zoning classifications. The appellees challenge the fact that the City intentionally excluded “gas

filling stations” from all of its zoning districts, while simultaneously contracting with Lockhill

Ventures for the development of a gasoline station. In other words, according to appellees, the

ordinance is wholly void because it constitutes contract zoning.

       Impermissible “contract zoning” occurs when a governmental entity agrees to zone land in

a certain way in exchange for a landowner’s agreement to use the land in a certain way. See City

of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 772 n.2 (Tex. 2006). Zoning is a

legislative function a city cannot cede. Super Wash, Inc. v. City of White Settlement, 131 S.W.3d

249, 257 (Tex. App.—Fort Worth 2004), rev’d on other grounds, 198 S.W.3d 770 (Tex. 2006).

Therefore, a city cannot surrender its authority to determine proper land use by contract. Id.
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Zoning decisions must occur via the legislative process and not by “special arrangement” with a

property owner. Id. “[C]ontract zoning is invalid because, by entering into such agreements, the

city impermissibly abdicates its authority to determine proper land use, effectively bypassing the

entire legislative process.” Super Wash, 198 S.W.3d at 772 n.2.

         On appeal, the substance of the City’s challenge to appellees’ standing to bring a

declaratory judgment action implicates the merits of whether the ordinance actually is the result

of improper contract zoning. However, in this interlocutory appeal from the denial of the City’s

plea to the jurisdiction, we do not reach the merits of that claim. 5 Instead, we address only whether

the trial court has the power to reach the merits of appellees’ claim. See City of Argyle, 258 S.W.3d

at 682. We conclude that, because appellees’ request for a declaratory judgment rests on whether

the annexation ordinance is wholly void, and not merely voidable, a quo warranto proceeding was

not required to challenge whether the annexation ordinance is void as the result of contract zoning.

Therefore, the trial court did not err in denying the City’s plea to the jurisdiction based on its

argument that appellees lack standing because only the State could challenge the City’s annexation

ordinance in a quo warranto proceeding. 6




5
  On appeal, the City relies on Super Wash, Inc. v. City of White Settlement, 131 S.W.3d 249 (Tex. App.—Fort Worth
2004, rev’d on other grounds, 198 S.W.3d 770 (Tex. 2006), to assert this court may examine whether the Agreement
here is the product of contract zoning. According to the City, the court in Super Wash examined the contract at issue
in that case to determine whether the contract bound the city. The City’s reliance on Super Wash is misplaced. In
that case, the city moved for summary judgment on the grounds that Super Wash lacked standing to challenge a zoning
ordinance, and Super Wash moved for summary judgment on the grounds that the ordinance’s fencing requirement
was impermissible contract zoning. After the court of appeals determined Super Wash had standing to challenge the
validity and the city’s enforcement of the ordinance, id. at 255, the court next turned to the issue of whether Super
Wash was entitled to summary judgment on its claim that the fence requirement contained in the ordinance was invalid
contract zoning. Id. at 257. Therefore, unlike here, the actual merits of the contract zoning argument was at issue in
Super Wash.
6
  In its plea to the jurisdiction and on appeal, the City does not otherwise argue appellees lack standing to challenge
the annexation ordinance.

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                                      EQUAL PROTECTION CLAIM

         In their amended petition, appellees asked the trial court to “construe the ordinances and

other materials and declare that . . . the [City’s] construction of its ordinances to allow defendant

Lockhill [Ventures] to develop its property in a manner that violates its Code of Ordinances

violates [appellees’] and other similarly situated persons’ rights to equal protection under its laws

or otherwise causes injury . . . .” An equal protection claim “requires that the government treat the

claimant different from other similarly-situated landowners without any reasonable basis.”

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). The purpose of the equal

protection clause is to secure persons against intentional and arbitrary discrimination. City of

Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 2010, pet. dism’d); Leonard v. Abbott,

171 S.W.3d 451, 458 (Tex. App.—Austin 2005, pet. denied). It is critical, however, that the

plaintiff allege it is being treated differently from those whose situation is directly comparable in

all material respects. City of Dallas, 331 S.W.3d at 787. Appellees failed to allege, in their

petition, before the trial court, or on appeal, any facts that they were similarly situated with others

but were treated differently. Further, nothing in the record indicates that a similarly situated class

has been treated differently in this case. Therefore, the trial court erred in denying the City’s plea

to the jurisdiction on appellees’ equal protection claim. 7

                                            ULTRA VIRES CLAIM

         In their amended petition, appellees asked the trial court to “construe the ordinances and

other materials and declare that . . . the actions of [the City] and its officials in contracting with




7
  We do not believe appellees’ petition can be amended to include this essential allegation or that there is a need for a
remand for an evidentiary hearing with respect to the equal protection claim, as no facts demonstrating an equal
protection cause of action have been otherwise asserted or argued.

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Lockhill [Ventures] and approving [the annexation ordinance] at the city council meeting on July

9, 2014 were ultra vires acts.”

        An ultra vires claim is “‘an action to determine or protect a private party’s rights against a

state official who has acted without legal or statutory authority . . . .’” Heinrich, 284 S.W.3d at

370 (citation omitted). To fall within the ultra vires exception to sovereign immunity, “a suit must

not complain of a government officer’s exercise of discretion, but rather must allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a purely

ministerial act.” Id. at 372. However, suits complaining of ultra vires actions may not be brought

against a governmental unit, but must be brought against the allegedly responsible government

actor in his official capacity. Id. at 373. Appellees did not sue any City official in his or her

official capacity. Therefore, the trial court erred in denying the City’s plea to the jurisdiction on

appellees’ ultra vires claim.

                     CONSTRUCTION OF THE CITY’S ORDINANCES

        In addition to asking the trial court to declare the annexation ordinance void, appellees also

asked the trial court to construe the meaning of various City ordinances and declare that Lockhill

Ventures’ intended use of the property to dispense gasoline violated the City’s ordinances in

several ways. Appellees assert they have standing to seek such declarations as against the City,

and they rely on Texas Civil Practice and Remedies Code section 37.004, which provides as

follows: “A person . . . whose rights, status, or other legal relations are affected by a . . . municipal

ordinance . . . may have determined any question of construction or validity arising under the . . .

ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.” TEX.

CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2015).

        On appeal, the City does not clearly and concisely argue appellees lack standing to ask the

trial court to construe various City ordinances. See TEX. R. APP. P. 38.1(f), (i). In a single sentence
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on appeal, the City states “[t]he court may interpret the City’s existing ordinances without the City

being a party if necessary to the covenants.” We cannot construe this sentence as a challenge on

appeal to appellees’ right to ask the trial court to construe the City ordinances. And, to the degree

the City intended this sentence to raise such a challenge on appeal, it is inadequately briefed. See

id. Therefore, we do not address whether the trial court erred in denying the City’s plea to the

jurisdiction as to these requests for declaratory relief.

                                           CONCLUSION

        We affirm the trial court’s order denying the City’s plea to the jurisdiction with respect to

appellees’ request that the trial court declare the annexation ordinance void. We reverse the trial

court’s order denying the City’s plea to the jurisdiction with respect to appellees’ equal protection

claim and appellees’ ultra vires claim; and we render a dismissal of these claims in favor of the

City. We reverse the trial court’s order denying the City’s plea to the jurisdiction with respect to

appellees’ request that the trial court declare the Development and Annexation Agreement void,

and we remand for further proceedings consistent with this opinion.


                                                          Sandee Bryan Marion, Chief Justice




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