                                 NO. 12-12-00257-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

LAMAR ADVANTAGE OUTDOOR                           §        APPEAL FROM THE 241ST
COMPANY, L.P.,
APPELLANT

V.                                             §           JUDICIAL DISTRICT COURT

THE CITY OF TYLER,
APPELLEE                                      §            SMITH COUNTY, TEXAS



                                 MEMORANDUM OPINION
       Lamar Advantage Outdoor Company, L.P. appeals from the trial court’s judgment
granting the City of Tyler’s motion for summary judgment and plea to the jurisdiction, denying
Lamar’s motion for partial summary judgment, and dismissing Lamar’s cause of action. In three
issues, Lamar contends the City of Tyler is not immune from suit and Lamar is entitled to
compensation pursuant to Texas Local Government Code Chapter 216. We affirm.


                                         BACKGROUND
       Lamar’s predecessor placed a billboard on privately owned property within Tyler’s city
limits pursuant to a ten year lease beginning July 1998. The City of Tyler purchased that
property from the landowners in 2007. The billboard remained in place. Lamar’s lease expired
in July 2008. Yet, the billboard remained in place. In 2010, the City notified Lamar that it must
remove the sign due to construction of a new road. Lamar eventually removed the sign but
requested compensation from the City. Taking the position that it was under no obligation to
compensate Lamar, the City declined to do so. Lamar filed its lawsuit seeking a declaratory
judgment to determine the parties’ rights and obligations under Texas Local Government Code
Chapter 216, which is entitled “Regulation of Signs by Municipalities.” Alternatively, Lamar
sought compensation for inverse condemnation.
        The City filed a plea to the jurisdiction claiming immunity to suit, arguing that Lamar did
not allege a cause of action for which the City’s immunity has been waived and that Lamar has
not alleged an exception to the City’s immunity. At the same time, the City filed a motion for a
no evidence summary judgment contending there is no evidence of a claim under Local
Government Code Chapter 216 and no evidence of a takings claim, and, as a result,
governmental immunity bars Lamar’s suit against the City. Lamar filed its motion for partial
summary judgment requesting the court to declare that Lamar has the right to compensation
under Chapter 216 for the City’s required removal of its sign. After a hearing, the trial court
granted the City’s motion for summary judgment and plea to the jurisdiction, denied Lamar’s
motion for partial summary judgment, and dismissed the cause of action. This appeal followed.1


                                           PLEA TO THE JURISDICTION
        In its first issue, Lamar asserts the trial court incorrectly granted the City’s plea to the
jurisdiction. It argues that it was seeking a declaration of its rights and the trial court had
jurisdiction to hear the case.
Standard of Review
        Absent a waiver of sovereign immunity, a state entity cannot be sued. See Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Sovereign immunity from suit
defeats a trial court’s subject matter jurisdiction and 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).
A plea questioning the trial court’s jurisdiction raises a question of law that we review de novo.
State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). In reviewing a plea to the jurisdiction, we
review the pleadings and any evidence relevant to the jurisdictional issue. Tex. Dep’t of Crim.
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The plaintiff has the burden of alleging facts
sufficient to demonstrate the trial court’s jurisdiction. Miranda, 133 S.W.3d at 226. If the
pleadings illustrate incurable defects in jurisdiction, a plea to the jurisdiction is properly granted.
Id. at 226-27.



        1
            Lamar does not attack the trial court’s ruling on its inverse condemnation claim.


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Discussion
       Lamar argues that the plea to the jurisdiction should have been denied because Lamar
asserted a claim for declaratory judgment seeking a declaration of the parties’ rights and
obligations under Chapter 216. It argues that the Declaratory Judgment Act (DJA) expressly
provides that an ordinance may be challenged and that the City, as an interested party, must be
joined in the lawsuit. Thus, Lamar asserts, the DJA necessarily waives governmental immunity
for such claims.
       We must determine if Lamar has alleged facts sufficient to demonstrate the trial court’s
jurisdiction. Miranda, 133 S.W.3d at 226. The DJA provides a procedural device for deciding
matters already within a court’s subject matter jurisdiction and does not itself establish subject
matter jurisdiction. State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). Further, while the DJA
waives sovereign immunity for certain claims, it is not a general waiver of sovereign immunity.
See Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Thus, it
cannot be used as a vehicle to obtain declarations having the effect of establishing a right to
relief against the State for which sovereign immunity has not been waived. Id. Merely couching
a cause of action in terms of a declaratory judgment action does not establish jurisdiction.
       The City acknowledges that Chapter 216 provides for a limited waiver of immunity but
asserts that Lamar has not alleged facts showing that Chapter 216 is applicable here. Lamar
focuses on the fact that the City required it to remove its sign. The City responds that Chapter
216 is inapplicable because the City did not, by regulation, require Lamar to remove its sign.
Thus, it argues, Lamar did not plead facts sufficient to show the trial court had jurisdiction.
Resolution of the matter depends on how the statute is construed.
       Statutory construction is a question of law, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In determining whether the statute applies here,
we look to the Legislature’s intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. We construe the
statute’s words according to their plain and common meaning. City of Rockwall, 246 S.W.3d at
625. In construing a statute, the court may consider, among other matters, the object sought to
be attained, circumstances under which the statute was enacted, legislative history, the common
law or former statutory provisions, including laws on the same or similar subjects, and the
caption. TEX. GOV’T CODE ANN. § 311.023 (West 2013).



                                                 3
       Title 7 of the Texas Local Government Code is entitled “Regulation of Land Use,
Structures, Businesses, and Related Activity.” TEX. LOC. GOV’T CODE ANN. Title 7 (West 2008
& Supp. 2012). It contains eleven chapters, each of which provides authority for some aspect of
municipal regulation of land use, structures, businesses, and related activity within a
municipality. Id. Chapter 216, entitled “Regulation of Signs by Municipalities,” is intended to
authorize a municipality to provide for, or require, the relocation, reconstruction, or removal of
any sign in the municipality and to establish the procedure by which the municipality may do so.
Id. § 216.001(a). With an exception not applicable here, “the owner of a sign that is required to
be relocated, reconstructed, or removed is entitled to be compensated by the municipality for
costs associated with the relocation, reconstruction, or removal.” Id. § 216.003(b). A cursory
reading of the statute leads to the conclusion that Chapter 216 applies only to regulations enacted
by a municipality.
       We also consider the legislative history of the statute. The House Committee on State
Affairs’ Bill Analysis explains as background information that “governments must compensate
the owners of outdoor advertising . . . in the case that such advertising is made illegal.” House
Comm. on State Affairs, Bill Analysis, Tex. H.B. 1330, 69th Leg., R.S. (1985). The purpose of
the new law, as explained in that document, was to prohibit political subdivisions from requiring
the removal of outdoor advertising, if the structure complied with applicable law when erected,
unless the political subdivision pays the owner just compensation. Id. Thus, the statute applies
to signs that were in existence and legal at the time a new ordinance was passed changing the
law, with which the existing sign was not in conformance, automatically making the sign illegal.
       This is not the situation in the case before us. Here, Lamar’s sign was erected on private
property pursuant to a lease. Before the end of the lease term, ownership of the property
changed. After the lease expired, the new owner requested that Lamar remove the sign from its
property. There is no allegation that the City passed any new sign ordinances and the request
had nothing at all to do with sign ordinances. Chapter 216 is inapplicable to this case. Thus,
Lamar has not alleged facts showing that the limited waiver of immunity in Chapter 216
provides the trial court with jurisdiction in this case.     See Miranda, 133 S.W.3d at 226.
Accordingly, the City’s plea to the jurisdiction was properly granted. See Jones, 8 S.W.3d at
638. We overrule Lamar’s first issue. We need not address Lamar’s remaining issues. See TEX.
R. APP. P. 47.1.



                                                4
                                                        DISPOSITION
         Because the trial court properly determined it lacked jurisdiction over this case, we
affirm the trial court’s judgment.


                                                       BRIAN HOYLE
                                                            Justice


Opinion delivered May 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




                                                           5
                                    COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            JUDGMENT

                                             MAY 22, 2013


                                        NO. 12-12-00257-CV


                   LAMAR ADVANTAGE OUTDOOR COMPANY, L.P.,
                                  Appellant
                                     V.
                             THE CITY OF TYLER,
                                   Appellee



                           Appeal from the 241st Judicial District Court
                         of Smith County, Texas. (Tr.Ct.No. 11-2186-C)


                      THIS CAUSE came to be heard on the oral arguments, appellate record,
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, LAMAR ADVANTAGE OUTDOOR COMPANY, L.P., for which
execution may issue, and that this decision be certified to the court below for observance.
                      Brian Hoyle, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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