                              NUMBER 13-09-00695-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

THE CITY OF VICTORIA,                                                           Appellant,

                                              v.

JAMES WAYNE,                                                                     Appellee.


                      On appeal from the 377th District Court
                            of Victoria County, Texas.


                          MEMORANDUM OPINION
                Before Justices Yañez, Rodriguez, and Garza
                  Memorandum Opinion by Justice Garza
       Appellant, the City of Victoria, Texas (the “City”), appeals the trial court’s denial of

its plea to the jurisdiction in a declaratory judgment action filed by appellee, James Wayne.

By three issues, the City contends that the trial court lacks jurisdiction because: (1)

Wayne’s requested relief “amounts to an advisory opinion”; (2) the City retained

governmental immunity because Wayne requested money damages; and (3) the City

retained governmental immunity because “the underlying purpose of [Wayne]’s suit is to

control government action.” We affirm in part, reverse and remand in part, and reverse

and render in part.

                                      I. BACKGROUND

       Wayne is the owner of fourteen different properties abutting North Laurent Street
in Victoria.1 According to Wayne’s original petition, the City informed him that, in the

process of making improvements to North Laurent Street, it would need to “severely alter

[his] driveway and significantly restrict access to [his] property.” Specifically, the City

intended to construct raised curbs on the sidewalks along North Laurent Street, including

those along the length of Wayne’s properties, in order to bring those curbs into conformity

with the City’s regulations.

        Wayne filed suit against the City on September 22, 2009, seeking a declaration of

his rights under an ordinance passed by the City Council of Victoria regarding the

construction of driveways. See TEX . CIV . PRAC . & REM . CODE ANN . § 37.004(a) (Vernon

2008) (providing, in part, that “[a] person . . . whose rights, status, or other legal relations

are affected by a . . . municipal ordinance . . . may . . . obtain a declaration of rights, status

or other legal relations thereunder” by filing a declaratory judgment action). Wayne argued

that his properties were protected by a “grandfather” clause in the ordinance providing that

any driveway not conforming with the City’s regulations but which “legally existed as a

conforming driveway prior to January 1, 2000 shall be permitted to continue as a

nonconforming driveway” until one of various conditions are met. VICTORIA, TEX. CITY CODE

ch. 20, art. VI, § 20-90 (1999), available at http://library.municode.com/HTML/10065/level3/

CCODE_C20_AVI.html#CCODE_C20_AVI_s20-90 (last visited Apr. 9, 2010). In his first

amended petition, filed on November 5, 2009, Wayne asked for declaratory relief,

attorney’s fees, and an order stating that the City must “comply with its ordinance and

restore the access that existed prior to the street work made the subject of this suit.”

        After answering Wayne’s suit, the City filed a plea to the jurisdiction in which it

argued that its governmental immunity had not been waived and that, in any case, there




        1
          W ayne’s first am ended petition listed the addresses of his various properties as: “1601 N. Laurent”;
“1607 N. Laurent”; “1609-1611 N. Laurent”; “1801 N. Laurent”; “2202 N. Laurent”; “2403 N. Laurent”; “2505
N. Laurent”; “2509-2513 N. Laurent”; “2515-2525 N. Laurent”; “2608 N. Laurent”; “2801 N. Laurent”; “3602-
3612 N. Laurent”; “1208-1241 Mockingbird (4801 N. Laurent)”; and “1302-1402 Mockingbird (4802 N.
Laurent).”

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was no live case or controversy that could be remedied by declaratory relief.2 Specifically,

the City asserted that Wayne “desires the City to expend tax-payer funds to deconstruct

the alterations and put the ribbon-curbing back in along his property” and that the City is

immune to such a request. The City further argued that Wayne’s request for a declaratory

judgment “is moot as the process [of constructing improvements along his properties] is

complete.” In support of the latter contention, the City attached an affidavit by Kenneth

Gill, Victoria’s City Engineer, stating that “[t]he Laurent Street Reconstruction Phase I

(Business 59 to Airline Road) which includes the following properties . . . has been

completed.” The affidavit listed the addresses of the properties where the raised curb

construction had been completed; the list included all but three of the fourteen properties

owned by Wayne according to the list included in his first amended petition.3

         A hearing was set for December 14, 2009, at which both the plea to the jurisdiction

and the merits of Wayne’s declaratory judgment action were to be considered. At the

hearing, the trial court denied the City’s plea. The City then immediately filed its notice of

interlocutory appeal, which effected a stay of all trial court proceedings.4 See TEX . CIV.

PRAC . & REM . CODE ANN . § 51.014(a)(8), (b) (Vernon 2008) (permitting appeal of an

interlocutory order that grants or denies a plea to the jurisdiction by a governmental unit

and providing that such an appeal stays all proceedings in the trial court pending resolution


         2
          In its plea to the jurisdiction, the City also devoted m uch argum ent to the m erits of W ayne’s
declaratory judgm ent action. Specifically, the City asserted that, under the Victoria City Charter, it has
“exclusive authority to regulate roadways, sidewalks, and driveway im provem ents,” and for that reason,
W ayne cannot rely on the ordinance to prohibit the City from reconstructing the curbs along his properties.
W e do not address the m erits of W ayne’s suit here. See Bland Indep. Sch. Dist. v. Blue, 34 S.W .3d 547, 554-
55 (Tex. 2000).
        3
           Gill stated that “Laurent Street Reconstruction Phase I” covered properties with the following
addresses: “1601 N Laurent; 1607 N Laurent; 1609-1611 N Laurent; 1801 N Laurent; 2202 N Laurent; 2403
N Laurent; 2505 N Laurent; 2509-2513 N Laurent; 2515-2525 N Laurent; 2608 N Laurent; and 2801 N
Laurent.” The three properties purportedly owned by W ayne but not listed by Gill in his affidavit are: “3602-
3612 N. Laurent”; “1208-1241 Mockingbird (4801 N. Laurent)”; and “1302-1402 Mockingbird (4802 N.
Laurent).”
         4
           W ayne filed a second am ended petition on Decem ber 14, 2009, after the trial court denied the City’s
plea to the jurisdiction and after the City filed its notice of interlocutory appeal. Because the City’s notice of
interlocutory appeal effectuated a stay of all trial court proceedings, see T EX . C IV . P RAC . & R EM . C OD E A N N .
§ 51.014(b) (Vernon 2008), we do not consider W ayne’s second am ended petition in resolving this appeal.
Instead, we consider only W ayne’s first am ended petition, which was the live pleading at the tim e of the trial
court’s Decem ber 14, 2009 judgm ent.

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of the appeal).

                                  II. STANDARD OF REVIEW

       A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without

regard to whether the asserted claims have merit. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter

jurisdiction. Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

Whether a 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); Tex.

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

       The plaintiff has the burden to plead facts affirmatively showing that the trial court

has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.–Fort Worth 2003, pet.

denied). We assume the truth of the jurisdictional facts alleged in the pleadings unless the

defendant presents evidence to negate their existence. Miranda, 133 S.W.3d at 227 (citing

Bland Indep. Sch. Dist., 34 S.W.3d at 555). If a plea to the jurisdiction challenges the

jurisdictional facts, we consider relevant evidence submitted by the parties to resolve the

jurisdictional issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008)

(citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555. If that

evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. City

of Waco, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28. “However, if the relevant

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.” Miranda, 133 S.W.3d at 228.

After the defendant “asserts and supports with evidence that the trial court lacks subject

matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and

subject matter jurisdiction are intertwined, to show that there is a disputed material fact

regarding the jurisdictional issue.” Id. This standard “generally mirrors” that of a traditional

motion for summary judgment. Id. When reviewing a plea to the jurisdiction in which the

pleading requirement has been met and evidence has been submitted to support the plea

                                               4
that implicates the merits of the case, we take as true all evidence favorable to the non-

movant. Id.; see County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We do

not “weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the

evidence pertinent to the jurisdictional inquiry.” Brown, 80 S.W.3d at 555.

                                        III. ANALYSIS

A.     Governmental Immunity

       We first address the City’s second and third issues, in which it argues that it is

entitled to governmental immunity because: (1) Wayne requested money damages, and

(2) “the underlying purpose of [Wayne]’s suit is to control government action.”

       In general, the City, as a subdivision of the State, is entitled to governmental

immunity from suit and may only be sued to the extent that its immunity has been waived.

See, e.g., Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). However, the

doctrine of governmental immunity is not applicable to certain requests for declaratory relief

filed pursuant to the Uniform Declaratory Judgments Act. See TEX . CIV. PRAC . & REM .

CODE ANN . §§ 37.001-.011 (Vernon 2008); see also Tex. Highway Comm’n v. Tex. Ass’n

of Steel Importers, Inc., 372 S.W.2d 525, 530 (Tex. 1963) (holding that legislative consent

was not required for a declaratory judgment suit against the Highway Commission to

determine the parties’ rights); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712

(Tex. 1945) (holding that legislative consent was not required for declaratory judgment suit

against the State Comptroller to determine the parties’ rights under a taxation statute).

Specifically, private parties may seek declaratory relief against governmental entities who

allegedly act without legal or statutory authority. IT-Davy, 74 S.W.3d at 855. This type of

declaratory judgment action simply seeks to compel state officers to act within their official

capacity and does not attempt to subject the State to liability, so immunity is not applicable.

Id. On the other hand, declaratory judgment actions against state officials seeking to

establish a contract’s validity, to enforce performance under a contract, or to impose

contractual liabilities are considered suits against the State and may not be imposed

without explicit legislative permission. Id.; W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308

                                              5
S.W. 2d 838, 840 (Tex. 1958).

       Wayne’s first amended petition contained a prayer for the following relief:

       1.     The Court enter declaratory judgment regarding the ordinance which
              is the subject matter of this suit.

       2.     The Court enter declaratory judgment that Plaintiff’s driveway[], in the
              words of the ordinance, “legally existed as a conforming driveway” on
              January 1, 2000.

       3.     Defendant be ordered to comply with its ordinance and restore the
              access that existed prior to the street work made the subject of this
              suit.

       4.     Reasonable attorney’s fees for trial and appeal as pleaded.

       5.     Such other and further relief to which Plaintiff may be justly entitled.

       In its plea to the jurisdiction, the City argued that Wayne’s “request for damages in

the form of requiring the reconstruction [again] of the sidewalks is barred by sovereign

immunity as it requires the expenditures of tax-payer funds.” (Brackets in original.) We

agree that Wayne’s request that the City to “be ordered to . . . restore the access that

existed prior to the street work” is akin to a request to “enforce performance under a

contract” and is therefore barred by governmental immunity because it seeks to impose

liability on the City. See IT-Davy, 74 S.W.3d at 855. On the other hand, Wayne’s

remaining requests merely seek to compel the City to act within its official capacity—that

is, in accordance with the ordinance at issue—and do not attempt to subject the City to

liability. Accordingly, governmental immunity is inapplicable to those requests. See id.

Moreover, the Texas Supreme Court has found that governmental immunity is waived with

respect to requests for attorney’s fees by private parties in declaratory judgment actions

against governmental entities. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446

(Tex. 1994) (“We conclude that by authorizing declaratory judgment actions to construe

the legislative enactments of governmental entities and authorizing awards of attorney

fees, the [Declaratory Judgments Act] necessarily waives governmental immunity for such

awards.”) (construing TEX . CIV. PRAC . & REM . CODE ANN . § 37.009). Immunity therefore

does not bar the trial court from exercising jurisdiction over Wayne’s request for attorney’s


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fees.

        We conclude that the trial court lacks jurisdiction over Wayne’s request that the City

“be ordered to comply with its ordinance and restore the access that existed prior to the

street work made the subject of this suit.” However, because Wayne’s petition does not

“affirmatively demonstrate incurable defects in jurisdiction,” the trial court should allow

Wayne to amend his pleadings to omit this request.5 See Miranda, 133 S.W.3d at 226-27

(citing Brown, 80 S.W.3d at 555) (“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.”). We sustain in part and overrule in part the

City’s second and third issues.

B.      Advisory Opinion

        By its first issue, the City contends that the trial court lacked jurisdiction over

Wayne’s claims because the relief Wayne requests only “amounts to an advisory opinion.”

Texas courts have no jurisdiction to render advisory opinions, which are opinions that

decide abstract questions of law without binding the parties. Tex. Ass’n of Bus., 852

S.W.2d at 444 (citing Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945);

Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1969); Cal. Prods., Inc. v. Puretex

Lemon Juice, Inc., 160 Tex. 586, 591, 334 S.W.2d 780, 783 (1960)). “A declaratory

judgment is appropriate only if a justiciable controversy exists as to the rights and status

of the parties and the controversy will be resolved by the declaration sought.” Bonham

State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).

        The City notes that the only evidence produced as to the jurisdictional issue was

Gill’s affidavit, in which he states that the “Laurent Street Reconstruction Phase I . . . has

been completed.” The City also notes that Wayne did not produce any evidence in



        5
           W e note that W ayne’s second am ended petition, filed subsequent to the trial court’s judgm ent in this
case and not considered in this appeal, see supra n.4, om itted his request that the City "be ordered to com ply
with its ordinance and restore the access that existed prior to the street work m ade the subject of this suit."

                                                        7
response to Gill’s affidavit. Because of this, according to the City, the trial court was

compelled to: (1) accept Gill’s assertions as fact; (2) conclude that all construction on

Wayne’s properties had been completed; and (3) conclude, therefore, that any relief

granted to Wayne would amount to an impermissible advisory opinion.

       Wayne did not seek an injunction or restraining order to prevent the City’s

construction of improvements along his properties while his suit was pending. Moreover,

Wayne did not produce any evidence to controvert Gill’s affidavit stating that “Laurent

Street Reconstruction Phase I” had been completed.            Because this evidence was

uncontested, we must conclude as a matter of law that the trial court lacked jurisdiction

over Wayne’s suit as it relates to the properties named in Gill’s affidavit as being part of

“Laurent Street Reconstruction Phase I.”         See Miranda, 133 S.W.3d at 228.          Any

declaratory judgment rendered as to these properties would serve merely to decide an

abstract question of law, without binding the parties. See Tex. Ass’n of Bus., 852 S.W.2d

at 444. The trial court therefore erred in denying the City’s plea to the jurisdiction with

respect to these properties.

       Gill’s affidavit, however, did not name all of Wayne’s properties as having been part

of “Laurent Street Reconstruction Phase I.”        Specifically, Gill’s affidavit omitted the

properties located at 3602-3612, 4801, and 4802 North Laurent Street, which Wayne

included in his list of owned properties in his first amended petition. The City did not

produce any other evidence establishing that the construction activities at these properties

were complete. In the absence of any such evidence, we must accept as true the factual

allegations made in Wayne’s pleadings that he is the owner of those properties and that

the City intends to perform work on those properties. See Miranda, 133 S.W.3d (citing

Bland Indep. Sch. Dist., 34 S.W.3d at 555).         We therefore conclude that Wayne’s

requested declaratory relief as to these properties would not amount to a mere advisory

opinion; instead, such a declaration would resolve a justiciable controversy as to the rights

and status of the parties under the ordinance. See Bonham State Bank, 907 S.W.2d at

467. Accordingly, the trial court did not err in denying the City’s plea on this basis.

                                             8
        We note that the City additionally argues that it was entitled to dismissal because

“the only evidence presented to the trial court was that no driveways were involved; lay-

down curbing was converted to raised curbing and the project was complete.” In support

of this argument, the City points to remarks by the trial court at the December 14, 2009

hearing, noting that a key issue in the underlying declaratory judgment suit was whether

or not the construction at issue involved driveways or public rights-of-way. Addressing the

City’s attorney, the trial court surmised that “if it’s a curb, you get to do it back how you

want it. If it’s a driveway, you’ve got to put it back how [Wayne] wants it.” We disagree

with the City’s argument here, because the issue of whether the construction involved

driveways or public rights-of-way does not implicate the trial court’s subject matter

jurisdiction; rather, it goes to the merits of Wayne’s declaratory judgment action.6 In

determining the jurisdictional issue, we consider relevant evidence where that evidence

may implicate the merits of the cause of action, see City of Waco, 298 S.W.3d at 622

(citing Miranda, 133 S.W.3d at 227), but we do not consider evidence that exclusively

addresses the merits. See Brown, 80 S.W.3d at 555; 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.”).

        The City’s first issue is sustained in part and overruled in part.

                                             IV. CONCLUSION

        We reverse the trial court’s judgment as it relates to that portion of Wayne’s suit

regarding the properties located at the following addresses: 1601, 1607, 1609-1611, 1801,

2202, 2403, 2505, 2509-2513, 2515-2525, 2608 and 2801 North Laurent Street. We

render judgment granting the City’s plea to the jurisdiction and dismissing the cause as it

relates to those properties.

        Further, we reverse the trial court’s judgment as it relates to Wayne’s request that


        6
          W e note also that the evidence on this issue was not as clear as the City suggests. Gill’s affidavit
stated: “The Laurent Street Reconstruction Phase I did not deal specifically with drive way [sic] although
driveways were part of the reconstruction project.” This statem ent alone could have raised a fact issue as
to whether the construction project involved “driveways” on W ayne’s properties.

                                                      9
the City “be ordered to comply with its ordinance and restore the access that existed prior

to the street work made the subject of this suit.” We remand to the trial court with

instructions to allow Wayne to replead and for further proceedings consistent with this

opinion.

       We affirm the remainder of the trial court’s judgment denying the City’s plea to the

jurisdiction.



                                                 DORI CONTRERAS GARZA,
                                                 Justice

Delivered and filed the
15th day of April, 2010.




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