Opinion issued October 17, 2019




                                    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 ON REHEARING

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

Appellees—Mayor Sylvester Turner, the Director of Public Works and

Engineering Karun Sreerama, and the City of Houston (collectively, “the City”)—
moved for rehearing of the case. We granted the motion. We now withdraw our

opinion and judgment issued on August 30, 2018, and issue the following opinion

and judgment in their place.1

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

order granting the plea to the jurisdiction filed by the City and dismissing all of her

claims.2 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 pursuant to 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 purportedly invalid city ordinance, and, therefore, the trial court
1
      We dismiss as moot the motion for rehearing filed by Perez on November 27,
      2018, and we likewise dismiss as moot the City’s motion for en banc
      reconsideration of the August 30, 2018 opinion and judgment. See TEX. R. APP. P.
      49.2, 49.3; Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 33 (Tex. App.—
      Houston [1st Dist.] 2004, pet. denied) (op. on reh’g).
2
      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
has subject-matter jurisdiction over her claims for declaratory and injunctive relief

against these defendants; (3) the City’s governmental immunity from 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 for street improvements;

and (4) the trial court wrongly dismissed her constitutional claims on the ground

that they were not ripe. We affirm.

                                   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




                                         3
the charter amendment could affect Houston’s revenue caps,3 the amendment

provided that “funding for the [DDSR Fund] that is not derived from ad valorem

taxes levied by 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.”

      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

3
      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.

                                           4
ruled in favor of Perez and her co-plaintiffs. Dacus v. Parker, 466 S.W.3d 820,

822 (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 828–29.    The court remanded the case to the trial court “for further

proceedings consistent with [its] opinion.” Id. at 829.

      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,


                                          5
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.

      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’s ruling in Dacus II, and while that suit

was pending on remand, on June 17, 2015, Perez filed her original petition in this

suit4 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.



4
      Perez pleaded her suit as a class-action lawsuit but no class certification ever
      occurred.
                                          6
      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 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 fee. 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 to sue as a

resident, municipal taxpayer, and registered voter who had paid the drainage fee

“under duress.”

      In her original petition, Perez sought a judicial declaration that the drainage

fee 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.” She also sought reimbursement for past payment of the monthly

drainage fee charged to her residence, and she sought an injunction against the




                                         7
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.

      The City filed a plea to the jurisdiction or, in the alternative, a motion for

summary judgment, asserting, in relevant part, that Perez lacked standing to bring

her claims because she had suffered no particularized injury. The City further

argued that Perez lacked standing to seek money damages and that governmental

immunity barred her claims for a refund of amounts paid. The trial court held a

hearing on the plea to the jurisdiction and expressed concerns regarding Perez’s

standing based on her original pleadings; accordingly, the trial court afforded Perez

the opportunity to replead her claims.

      Perez filed an amended petition, continuing to assert that “the City and/or

the Ultra Vires Defendants had unconstitutionally and illegally assessed, collected

and expended hundreds of millions of dollars from 2011 to 2015 purportedly for

drainage and street improvements and repairs” pursuant to “a void Charter

Amendment . . . and/or pursuant to a void City Ordinance.” Perez argues 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.” She continued to

seek a judgment declaring that the drainage fee is “illegal and/or unconstitutional,


                                         8
that all assessed amounts must be reimbursed to those persons and entities that paid

them,” that “all assessed but not yet to be spent amounts must not be expended but

segregated and protected and paid into the registry” of the trial court, and that “no

further [drainage fee] assessments be assessed or collected.” Perez also asserted a

variety of constitutional claims challenging the City’s Charter Amendment and the

implementation of the drainage utility, including the assessment and collection of

fees, authorized by the Drainage Fee Ordinance.

      Specifically relevant to her standing, Perez pleaded the following allegations

and facts:

      • “Perez has been a named party in [the] related [Dacus] litigation
        which is the sole and exclusive reason why the current lawsuit is
        now available to reimburse everyone for their pro rata payment of
        the” drainage fee.

      • Because of the supreme court’s ruling in Dacus II, the trial court
        on remand in Dacus “had no discretion but to enter summary
        judgment in favor of Perez. Simply put, the Illegal Rain Tax [i.e.,
        the drainage fee] is void, and has always been void.”

      • Perez has standing “to bring claims against the City of Houston
        and/or Ultra Vires Defendants because [she] is a municipal
        taxpayer who paid, and continues to pay, the [drainage fees] under
        duress” because “the City has been illegally assessing and
        collecting hundreds of millions of dollars . . . purportedly for
        drainage and street improvements and repairs . . . pursuant to a
        void Charter Amendment and/or to a void City Ordinance.”

      Finally, regarding the Drainage Fee Ordinance, Perez asserted in her

amended pleading that “state law provides the City with the authority to impose a

                                         9
drainage charge for drainage costs associated with specific drainage systems,” but

“state law does not provide the City with the authority to impose a drainage charge

for street, curb, and other non-drainage related improvements and repairs.” She

thus asserted that, because the Charter Amendment was “void,” the fees authorized

by the Drainage Fee Ordinance are “likewise void” and, “[a]ccordingly, none of

the monies collected by the [Drainage Fee Ordinance] were validly collected.” And

Perez further asserted that       the collected monies were “illegally and

unconstitutionally exempted from the Revenue Cap,” causing City budgets to

exceed the caps.

      The trial court held another hearing on the City’s plea to the jurisdiction,

and, ultimately, 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.




                                         10
      The trial court found that Perez was not entitled to any award of attorney’s

fees. The court granted the City’s plea 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.

                           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


                                         11
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 (1974) (“Past exposure to

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

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.

      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 (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


                                          12
(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 trial court’s 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.

       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

issues 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, and, therefore, the collection of revenue under the Ordinance is

illegal.

       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


                                        13
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

on remand 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 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. Therefore, any further complaints regarding validity of the Charter

Amendment are moot. See Reule, 411 S.W.3d at 32; Meeker, 317 S.W.3d at 759.

It is void.


                                        14
      Perez alleges, first, that the City and other individual defendants wrongfully

relied upon 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 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)).

      Moreover, the judicial declaration that the Charter Amendment is void does

not help Perez’s case here. 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 invalidated the Drainage Fee

Ordinance and that, as a result, the City or individual defendants have acted


                                          15
improperly in enforcing the Ordinance, her claims are misplaced. See Perry, 66

S.W.3d at 250; Gibson, 22 S.W.3d at 851–52.

      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.

C.    Ripeness of Perez’s Claim for a Declaratory Judgment that the Ordinance
      is Invalid

      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 because the City

otherwise lacked the authority to collect the fees pursuant to the Ordinance and,

accordingly, those fees are being illegally collected. She also argues that the fees

were used in part for projects “clearly unrelated to drainage systems such as traffic

signal reconstruction, bridge replacement, [and] street intersection improvements.”

But she fails to plead any such “illegal” expenditure with specificity.

      The City contests Perez’s assertion. 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 as it did. The City asserts 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

                                          16
Government Code Chapter 552. The City further argues in its brief on appeal that

the Charter Amendment was unnecessary to impose a drainage fee but was

proposed solely 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.”

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

art. XI, § 5; see also TEX. LOC. GOV’T CODE §§ 9.001–.008 (addressing adoption of

charters for home-rule municipalities). A home-rule city derives its power from the

Texas Constitution, operates by its charter, and “possess[es] the full power of self

government and look[s] to the Legislature not for 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).

      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 §§ 552.041–.054 (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


                                        17
      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.

D.    Perez’s Standing to Seek a Judgment Declaring the Ordinance Invalid,
      Reimbursement for “Illegally Collected” Drainage Fees, and an
      Injunction Against the Future Collection of Drainage Fees

      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 duress, an illegal drainage fee assessed by the City, she can demonstrate both

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

injury.

      1.     Perez’s claim that this is a suit to recover illegally collected drainage
             fees

      We begin our analysis by recognizing that although Perez has pleaded 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


                                          18
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. Nor has she identified

what measurable added illegal activity is supported by the fee that was not

authorized by the City’s ability to collect drainage fees conferred on it by the Local

Government Code. 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

subsequently 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 been

declared invalid and no specific showing of any illegality of the fees collected has

been made.




                                          19
      2.     Perez’s standing to maintain her suit for declaratory relief

      Perez argues that her pleadings and jurisdictional evidence are sufficient to

establish her standing to pursue her claims for a judgment declaring the Drainage

Fee Ordinance illegal. We disagree.

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

decision-making[.]” Bland Ind. Sch. Dist., 34 S.W.3d at 555. The Texas Supreme

Court has explained why lawsuits such as Perez’s are disfavored as a matter of

public policy:

      Generally, a citizen lacks standing to bring a lawsuit challenging the
      lawfulness of governmental acts. This is 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. Thus, standing
      doctrines reflect in many ways the rule that neither citizens nor
      taxpayers can appear in court simply to insist that the government and
      its officials adhere to the requirements of law.

Andrade v. Venable, 372 S.W.3d 134, 136–37 (Tex. 2012) (internal quotation

marks and citations omitted). The supreme court has further held that “[t]his

pragmatic approach ensures that there is a real need to exercise the power of

judicial review in a particular case, and it helps guarantee that courts fashion

remedies no broader than required by the precise facts to which the court’s ruling

would be applied.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011)

(internal quotation marks omitted) (quoting Lance v. Coffman, 549 U.S. 437, 441

(2007)). “Based partly on the notion of judicial self governance, this rule

                                         20
recognizes that other branches of government may more appropriately decide

‘abstract questions of wide public significance,’ particularly when judicial

intervention is unnecessary to protect individual rights.’” Id. (quoting Warth v.

Seldin, 422 U.S. 490, 500 (1975)).

      Thus, unless standing to sue the government is 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.” Bland Ind. Sch. Dist., 34

S.W.3d at 555–56. To establish that she suffered a particularized injury that

confers standing upon her, Perez has 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 id.

      Perez first asserts 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.




                                         21
      Perez also 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. Specifically, 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 assessments 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].”

      However, this showing is insufficient to demonstrate a particularized 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.

      There is, however, a long-established exception to the general rule that a

particularized injury is required for taxpayer standing. Specifically, the Texas

Supreme Court, in cases like Bland Independent School District and Andrade, has


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explained a narrow, judicially-created exception to the particularized-injury rule

under which a taxpayer has standing to sue to enjoin the illegal expenditure of

public funds without demonstrating a particularized injury. Andrade, 372 S.W.3d

at 137; Williams, 52 S.W.3d at 179; Bland Indep. Sch. Dist., 34 S.W.3d at 556;

Osborne v. Keith, 177 S.W.2d 198, 200 (Tex. 1944); Hoffman v. Davis, 100

S.W.2d 94, 95 (Tex. 1937); City of Austin v. McCall, 68 S.W. 791, 794 (Tex.

1902).

         “Implicit in [the taxpayer-standing] rule 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. Because such lawsuits are “drastic,”

a citizen pursuing such a suit “must bring himself strictly within the established

rules.” Osborne, 177 S.W.2d at 200. “This must be a measurable, added

expenditure—not one that would have been made in spite of the allegedly illegal

activity.” Andrade, 372 S.W.3d at 138; see Williams, 52 S.W.3d at 181–82. The

plaintiff must be able to allege that the challenged activity is supported by a

separate tax, or paid for from a particular appropriation, or that the allegedly illegal

activity adds some sum to the cost of conducting the activity. Andrade, 372 S.W.3d

at 138. In addition, “the expenditure cannot be de minimis—it must be significant.”

Id. (citing Williams, 52 S.W.3d at 183 (noting that “county-paid employees ‘spent

a significant amount’ of time operating the challenged program”)). “Unless a


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plaintiff can meet these requirements, there has not been a pecuniary injury to the

taxpayers generally and the taxpayer’s interest is not direct enough for his suit to

proceed.” Id.

      In sum, it is not enough for the plaintiff to establish that she is a taxpayer—

the plaintiff “may maintain an action solely to challenge proposed illegal

expenditures.” Williams, 52 S.W.3d at 180. Moreover, under this exception, “a

taxpayer may not sue to recover funds previously expended.” Id.; Turner v.

Robinson, 534 S.W.3d 115, 123–24 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied) (holding that taxpayer may challenge proposed illegal expenditures but

may not recover funds previously expended or challenge expenditures that are

merely “unwise or indiscreet”). 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.”

Williams, 52 S.W.3d at 181; see Andrade, 372 S.W.3d at 138.

      The City argues that Perez failed to plead or to prove that the City is actually

expending money illegally. We agree with the City. Perez’s live petition alleges

generally that the City has been illegally assessing, collecting, and expending funds

for drainage and street improvements pursuant to the void Charter Amendment and

the allegedly void Ordinance and that an unidentified portion of these


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improvements are unrelated to drainage systems and are illegal expenditures. But

nowhere in her pleadings does Perez identify which specific expenditures, if any,

are or were illegal. She does not allege or provide jurisdictional evidence that it is

illegal for the City to expend the funds on the generally identified drainage

projects. And it is clear from the plain language of Local Government Code

Chapter 552 and the City’s home-rule powers under Article XI, section 5 of the

Texas Constitution, and Article IX, section 22 of the City Charter, regarding streets

and drainage—all of which are referenced in the Drainage Fee Ordinance itself as

authority for the powers granted to the City by the Ordinance—that the City had

the general authority to enact the Ordinance and to grant it the powers referenced

therein.

      Perez has failed to plead any facts showing that the City is actually making

any “measurable, added expenditure” of funds on illegal, unconstitutional, or

statutorily unauthorized activities. Her live pleadings challenge aspects of the

assessment and collection of the drainage fees without any showing that the City’s

charter does not permit the assessment and collection of drainage fees and

associated expenditures without any particularized showing of funds allocated to

an additional, significant, measurable illegal activity. But taxpayer standing

extends only to challenge such particularized illegal expenditures. See Andrade,

372 S.W.3d at 138. As the Texas Supreme Court stated in both Andrade and


                                         25
Bland Independent School District, “Generally, ‘a citizen lacks standing to bring a

lawsuit challenging the lawfulness of governmental acts.’ This is because

‘[g]overnments 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.’” Andrade, 372 S.W.3d at 136 (internal

citations omitted) (quoting NAACP of Austin, 345 S.W.3d at 6); Bland Indep. Sch.

Dist., 34 S.W.3d at 555.

       We agree with the City that Perez has failed to plead or demonstrate that the

City has actually expended a significant amount of specifically identified funds

illegally.   See Williams, 52 S.W.3d at 180; Turner, 534 S.W.3d at 123.

Accordingly, we conclude that Perez has failed to establish that she has taxpayer

standing to challenge any illegal expenditures by the City as pleaded in this case.

See Williams, 52 S.W.3d at 179–80. Because Perez lacks standing to pursue the

claims she filed here, and her lack of standing is sufficient to support the trial

court’s grant of the City’s plea to the jurisdiction, we need not address her

remaining issues regarding governmental immunity and ripeness.




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                                    Conclusion

      We affirm the trial court’s dismissal of Perez’s claims.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Lloyd, and Kelly.




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