                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                               No. 04-18-00331-CV

                                             CITY OF PEARSALL,
                                                  Appellant

                                                           v.

                                                 Sergio CORREA,
                                                     Appellee

                        From the 218th Judicial District Court, Frio County, Texas
                                   Trial Court No. 16-12-00464CVF
                               Honorable Russell Wilson, Judge Presiding

Opinion by:        Sandee Bryan Marion, Chief Justice

Sitting:           Sandee Bryan Marion, Chief Justice
                   Karen Angelini, Justice
                   Patricia O. Alvarez, Justice

Delivered and Filed: November 14, 2018

AFFIRMED

           City of Pearsall appeals the trial court’s order denying its plea to the jurisdiction with regard

to Sergio Correa’s claim seeking a declaration that the City’s ordinance number 2012-12-179 is

invalid or unconstitutional. 1 We affirm the trial court’s order.




1
 The trial court’s order granted the City’s plea to the jurisdiction as to six other claims, but that portion of the trial
court’s order is not challenged on appeal.
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                                          BACKGROUND

       In 2012, the City passed ordinance number 2012-12-179 which allowed residents to own

and operate a gaming room with eight-liner machines so long as the owner paid an annual permit

application fee of $3,000.00 per game room, and an annual inspection permit fee of $1,800.00 per

machine. In September of 2016, the City seized forty-four eight-liner machines owned by Correa

claiming the seizure was authorized by the ordinance. On November 30, 2016, Correa sued the

City alleging numerous claims, including a claim seeking a declaration that the ordinance is

unconstitutional. The City filed a plea to the jurisdiction as to all of Correa’s claims. The trial

court granted the plea as to all claims except the claim seeking a declaration that the ordinance is

unconstitutional. The City appeals.

                                      STANDARD OF REVIEW

       We review a trial court’s ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of

Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the plea to the jurisdiction challenges the

pleadings, we liberally construe the pleadings to determine if the plaintiff “has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the plea to the jurisdiction challenges

the existence of jurisdictional facts, “we consider relevant evidence submitted by the parties to

determine if a fact issue exists.” Suarez v. City of Tex. City, 465 S.W.3d 623, 632–33 (Tex. 2015).

                                           DISCUSSION

       The City contends the trial court erred in denying its plea as to Correa’s declaratory

judgment claim. Correa responds the City’s immunity is waived under the Uniform Declaratory

Judgments Act (UDJA).

       Section 37.004(a) of the UDJA allows a person “whose rights, status, or other legal

relations are affected by a … municipal ordinance … [to] have determined any question of …
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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). Section 37.006(b) further

provides, “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.” Id. § 37.006(b). The Texas

Supreme Court has expressly recognized the UDJA “waives a municipality’s immunity in a suit

that involves the validity of a municipal ordinance.” City of Dall. v. Albert, 354 S.W.3d 368, 378

(Tex. 2011); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (“For

claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act

requires that the relevant governmental entities be made parties, and thereby waives immunity.”);

Turner v. Robinson, 534 S.W.3d 115, 127 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

(noting UDJA “clearly and unambiguously waives the sovereign immunity of municipalities in

any declaratory-judgment action involving the validity of a municipal ordinance”); Porter v.

Montgomery Cty., No. 09-15-00459-CV, 2017 WL 629487, at *3 (Tex. App.—Beaumont Feb. 16,

2017, no pet.) (mem. op.) (noting “with respect to claims challenging the validity or

constitutionality of an ordinance or a statute, the Texas Supreme Court has recognized that the

Declaratory Judgments Act waives immunity”). In addition to the express authority provided by

the UDJA to bring a declaratory judgment action to determine any question regarding the validity

of an ordinance, the City’s ordinance in this case directly affects Correa’s right to own and operate

a gaming room with eight-liner machines; therefore, a justiciable controversy exists as to the

validity of the ordinance. See City of Austin v. Pendergrass, 18 S.W.3d 261, 264 (Tex. App.—

Austin 2000, no pet.); City of Schertz v. Parker, 754 S.W.2d 336, 338 (Tex. App.—San Antonio

1988, no writ); S. Nat’l Bank of Hous. v. City of Austin, 582 S.W.2d 229, 236-37 (Tex. Civ. App.—

Tyler 1979, writ ref’d n.r.e.).



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                                             CONCLUSION

        Because section 37.004(a) of the UDJA expressly authorizes Correa to seek a declaratory

judgment to determine the validity of the ordinance, and the City’s immunity is waived as to such

a claim, the trial court did not err in denying the City’s plea as to that claim. The trial court’s order

is affirmed.

                                                    Sandee Bryan Marion, Chief Justice




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