                                 COURT OF APPEALS
                              EIGHTH DISTRICT OF TEXAS
                                   EL PASO, TEXAS


                                             §
 CROCKETT COUNTY, TEXAS,                                    No. 08-14-00123-CV
                                             §
                           Appellant,                          Appeal from the
                                             §
 v.                                                      112th Judicial District Court
                                             §
 KLASSEN ENERGY, INC.,                                    of Crockett County, Texas
                                             §
                           Appellee.                         (TC# 13-08-07413)
                                              §

                                        OPINION

        In this interlocutory appeal, Crockett County contends that the trial court erred by

denying its plea to the jurisdiction because the county is immune from a suit challenging its

decision to close a public road almost two decades ago. We vacate the judgment for want of

jurisdiction.

                                        BACKGROUND

        The facts in this appeal are straightforward.   Klassen Energy, Inc., has owned a

landlocked oil and gas lease in Crockett County, Texas, since January 30, 1998.          From

approximately 1995 to 1997, Klassen Energy’s predecessor-in-interest could access the leased

land by using County Road 309 and used that road as the sole means of ingress and egress. In

March 1995, the Crockett County Commissioners Court voted to close County Road 309 to the
public. For more than a decade afterward, Klassen Energy apparently continued to use County

Road 309, which traverses land owned by the University of Texas System Lands Division

(“UT”), to obtain access to its leasehold1998. In 2013, UT decided to require Klassen Energy to

pay for an easement across its land. Klassen Energy purchased the easement, then filed suit

against Crockett County, seeking indemnity and a declaration that the 1995 closure order was

invalid, or, alternatively, that the county needed to build a road to provide Klassen Energy access

to its leased lands.

         Crockett County filed a plea to the jurisdiction on sovereign immunity grounds. The trial

court overruled the plea, and Crockett County appealed.                     We have jurisdiction under the

interlocutory appeal statute. TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(8)(West 2015).

                                                 DISCUSSION

         In its sole appellate issue, Appellant maintains that Klassen Energy is statutorily barred

from challenging the validity of the 1995 commissioners court order on repose ground. 1 We

agree.

                                              Standard of Review

         “Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and thus

is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 225-26 (Tex. 2004). We review the question of whether the trial court had subject

matter jurisdiction de novo. Id. at 226.

                                                     Analysis

         At the outset, Klassen Energy contends we should affirm the trial court’s order because


1
  Appellee Klassen Energy also raises other arguments in its brief related to its own standing to pursue suit and
substantive waivers for its claims. Because Crockett County only raised limitations/repose arguments, and because
those grounds are dispositive, we decline to address the other issues raised in Klassen Energy’s brief as unnecessary
to the resolution of this appeal. See TEX.R.APP.P. 47.1.

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Appellant improperly presented affirmative limitations and repose defenses in a plea to the

jurisdiction when those defenses may only be raised via summary judgment. We disagree.

Ordinarily, a defendant must prove an affirmative limitations defense either at trial, or through

the traditional summary judgment framework. See Lazy R Ranch, L.P. v. ExxonMobil Corp., No.

08–13–00281–CV, 2015 WL 181651, at *2 (Tex.App.--El Paso Jan. 14, 2015, pet. filed); In re

K.B.S., 172 S.W.3d 152, 153 (Tex.App.--Beaumont 2005, pet. denied). However, a government

entity may properly bring a limitations or repose defense in a plea to the jurisdiction if the

applicable statute clearly establishes that timely filing is a statutory prerequisite to suit and, thus,

jurisdictional. See DeMagaloni v. Bexar Cnty. Hosp. Dist., No. 04-12-00691-CV, 2013 WL

4829133, at *2 (Tex.App.--San Antonio Sept. 11, 2013, no pet.)(mem. op.)(limitations period set

by TEX.LAB.CODE ANN. § 21.256 (West 2015) is jurisdictional and may be properly raised in a

plea to the jurisdiction); see also El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151

(Tex.App.--El Paso 2010, no pet.)(granting plea to the jurisdiction based on school district’s

limitations defense under the Texas Labor Code).           Here, the statute of repose specifically

governing this action states:

        (a) A person must bring suit for any relief from the following acts not later than
        two years after the day the cause of action accrues:

                                         .         .          .

                (2) the adoption by a commissioners court of an order closing and
                abandoning, or attempting to close and abandon, all or any part of a public
                road or thoroughfare in the county, other than a state highway.

        (b) The cause of action accrues when the order or ordinance is passed or adopted.

        (c) If suit is not brought within the period provided by this section, the person in
        possession of the real property receives complete title to the property by
        limitations and the right of the city or county to revoke or rescind the order or
        ordinance is barred.



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TEX.CIV.PRAC.&REM.CODE ANN. § 16.005 (West 2002).2

        Because the State is immune from suit absent legislative consent, and because

legislatively enacted statutory prerequisite conditions to suit are jurisdictional, violation of a

statutory requisite is a proper ground for a plea to the jurisdiction. Prairie View A&M Univ. v.

Chatha, 381 S.W.3d 500, 512-13 (Tex. 2012). In determining whether a statute is a “statutory

prerequisite” to suit, we look to see:            (1) whether there is “relevant statutory language”

establishing a procedure; (2) whether that procedural prerequisite is required, i.e. “essential” or

“necessary[;]” and (3) whether that procedural prerequisite “must be met before the lawsuit is

filed.” Id. at 511-12 n.16.

        The statute here mandates that a person seeking to challenge a commissioners court order

closing a public road “must bring suit for any relief . . . not later than two years after the day the

cause of action accrues[.]” TEX.CIV.PRAC.&REM.CODE ANN. § 16.005(a). The plain language

clearly establishes that compliance with this temporal requirement is mandatory. Subsection (c)

also makes clear that “[i]f suit is not brought within the period provided by this section,” title to

real property vests in the person who possesses it and the county is barred from rescinding its

order. Id. at § 16.005(c). In short, Section 16.005 passes the test set out in Chatha. The two-

year filing deadline here is a statutory prerequisite to suit.

        The parties next dispute whether Section 16.005 constitutes a statute of repose or a statute

of limitations. The distinction carries a significant legal difference. A statute of repose, much

like a statute of limitations, sets a time limit on a plaintiff’s ability to bring a claim. However,

unlike a statute of limitations, a statute of repose begins running from a specific point in time,

regardless of whether a cause of action has accrued yet. Jefferson State Bank v. Lenk, 323

2
  We note that this statute of repose has been in effect since 1985 and predates the commissioners court order at
issue here by nearly a decade. See Act of Sept. 1, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 TEX.GEN.LAWS 3242,
3253.

                                                       4
S.W.3d 146, 147 n.2 (Tex. 2010). “[T]he essential function of all statutes of repose is to

abrogate the discovery rule and similar exceptions to the statute of limitations.” Methodist

Healthcare Sys. of San Antonio, Ltd., LLP v. Rankin, 307 S.W.3d 283, 289 (Tex. 2010). Thus,

while a litigant may toll a statute of limitations where an injury is undiscoverable, a statute of

repose acts as a hard temporal bar and a substantive limit to a plaintiff’s right to recovery. Id.

       Klassen Energy claims that Section 16.005 does not create a statute of repose, but a

statute of limitations that may be tolled by the discovery rule. Appellant correctly notes that the

plain language of the statute frames the temporal inquiry in terms of accrual, which would

suggest this section is a statute of limitations. However, the statute also states that “[t]he cause

of action accrues when the order or ordinance is passed or adopted,” and the remaining

provisions of the statute provide that once two years elapse from that date, title to real property

vests and the commissioners court loses the power to rescind its order. Our sister court in

Texarkana has referred to this provision in passing as a statute of repose, and we agree with its

assessment. See Hanks v. Sabine Cnty., No. 06-10-00099-CV, 2011 WL 1260211, at *3 n.10

(Tex.App.--Texarkana Apr. 5, 2011, pet. denied)(mem. op.). The mechanics of this statute as a

whole show that the Legislature intended it to act as a substantive limitation on the right of

recovery, not as a claims-processing rule. As such, Section 16.005 is a statute of repose not

subject to the discovery rule. The trial court lost jurisdiction to entertain a challenge to the

March 1995 commissioners court order two years after its issuance.

       Klassen Energy counters that even if the statute of repose creates a jurisdictional bar to

suit, Appellant cannot claim immunity under these facts because the commissioners court failed

to properly pass the road closure order under Section 2.002(e) of the now-repealed County Road

and Bridge Act. See Act of May 20, 1989, 71st Leg., R.S., ch. 428, § 2, 1989 TEX.GEN.LAWS



                                                  5
1574, 1574-75, repealed by Act of April 21, 1995, 74th Leg., ch. 165, § 24(a), 1995

TEX.GEN.LAWS 1025, 1870.3                 We again disagree.          The statute of repose covers not only

procedurally valid commissioners court orders, but also any order “attempting to close and

abandon[] all or any part of a public road[.]” Id. at § 16.005(a)(2)[Emphasis added]. We need

not decide whether the Crockett County commissioners issued a procedurally defective order

closing County Road 390 in March 1995. The statute of repose insulates Crockett County from

any attack on its road closure order, valid or not, after two years. Because the undisputed

evidence shows that Klassen Energy and its predecessors-in-interest failed to file suit to

challenge the commissioners court order before March 5, 1997, recovery here is absolutely

barred.

           Issue One is sustained. The trial court’s judgment is vacated for want of jurisdiction.



April 30, 2015
                                                        YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

3
    Section 2.002(e) of the former County Road and Bridge Act that Klassen Energy cites states as follows:

           If a commissioners court, acting either upon the request of one or more parties or on its own
           initiative, by order closes, abandons, and vacates a public road or part thereof, no property owner
           shall be entitled to enjoin the entry or enforcement of said order unless the property owner might
           otherwise be entitled to said injunctive relief because the property of such owner abuts the portion
           of the road being closed, abandoned, and vacated or because ingress or egress to such owner’s
           property is only available by use of said portion of the subject road; provided, however, this
           subsection shall not deprive a property owner whose property abuts the subject road at a point
           other than the portion of the road being closed, abandoned, and vacated of any right to seek
           damages, if any, proximately caused by any depreciation in the value of the owner’s property or
           by any impairment of the owner’s right of ingress and egress to the owner’s property. Title to the
           public road or part thereof that is closed, abandoned, and vacated and that abuts an owner’s
           property, to the center line of the road, vests, on the date the order is signed by the county judge,
           in such abutting property owner. A copy of the order shall be filed of record in the deed records of
           the county and shall act as the official instrument of conveyance from the county to the abutting
           property owner.

Act of May 20, 1989, 71st Leg., R.S., ch. 428, § 2, 1989 TEX.GEN.LAWS 1574, 1574-75. This provision
was repealed as part of the codification of the Texas Transportation Code. The current version apparently
is located at TEX.TRANSP.CODE ANN. § 251.058 (West 2013).

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