Court of Appeals of Texas, Fifth District, Dallas
CITY OF PLANO, TEXAS, LISA HENDERSON, IN HER OFFICIAL CAPACITY AS CITY SECRETARY; HARRY LAROSILIERE, IN HIS OFFICIAL CAPACITY AS MAYOR; ANGELA MINER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; BEN HARRIS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RICK GRADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; LISSA SMITH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; RON KELLEY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; TOM HARRISON, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL; AND DAVID DOWNS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE CITY COUNCIL, Appellants
ELIZABETH CARRUTH, MATTHEW TIETZ, JANIS NASSERI, JUDITH KENDLER, AND STEPHEN PALMA, Appellees
Appeal from the 380th Judicial District Court Collin County,
Texas Trial Court Cause No. 380-00469-2016
Justices Lang-Miers, Stoddart, and O'Neill 
an interlocutory appeal from the denial of a plea to the
jurisdiction. Appellees Elizabeth Carruth, Matthew Tietz,
Janis Nasseri, Judith Kendler, and Stephen Palma sued the ity
of Piano, the City Secretary, the Mayor, and the members of
the City Council in their official capacities seeking writs of
mandamus and a declaratory judgment regarding the City
Secretary's failure to submit their petition for a
referendum on a city ordinance to the City Council and the
Council's failure to reconsider the ordinance and call an
election. Appellants filed a plea to the jurisdiction
asserting that an ordinance adopting a municipal
comprehensive plan is not subject to the referendum process
and, other than the mandamus claim against the City
Secretary, the claims are not ripe. The trial court denied
argues the trial court erred by denying the plea to the
jurisdiction because the City is immune from suit and the
claims, other than the mandamus claim against the City
Secretary, are not ripe. As discussed below, we affirm the
denial of the plea as to the mandamus claim against the City
Secretary, reverse the denial as to the mandamus claim
against the City Council and the declaratory judgment claim
and dismiss those claims for lack of subject matter
governing body of a municipality may adopt a comprehensive
plan for the long-range development of the city, including
provisions on land use, transportation, and public
facilities. Tex. Loc. Gov't Code Ann. § 213.002.
Such a plan or coordinated set of plans may be used to
coordinate and guide the establishment of development
regulations. Id. A comprehensive plan may be adopted
or amended by ordinance after a public hearing allowing
testimony and written evidence and review by the city's
planning commission or department, if one exists.
Id. § 213.003. A city may establish in its
charter or by ordinance the procedures for adopting and
amending a comprehensive plan. Id. Zoning
regulations must be adopted in accordance with a
comprehensive plan. Id. § 211.004. Maps of a
comprehensive plan must contain the statement that a
"comprehensive plan shall not constitute zoning
regulations or establish zoning district boundaries."
Id. § 213.005.
Plano City Charter permits qualified voters to submit a
referendum petition seeking reconsideration of and a public
vote on any ordinance, other than taxation ordinances. Plano,
Tex., Home Rule Charter § 7.03 [hereinafter Charter].
The referendum petition must be filed with the City Secretary
within thirty days of passage or publication of the ordinance
and be signed and verified as required by section 7.02.
Id. Section 7.02 provides that a petition must be
signed by at least twenty percent of the qualified voters at
the last regular municipal election, or one hundred fifty,
whichever is greater. Id. § 7.02.
"Immediately upon the filing of such petition, the
person performing the duties of city secretary shall present
said petition to the city council." Id. §
presentation of a referendum petition by the City Secretary,
the City Council "shall immediately reconsider such
ordinance or resolution and if it does not entirely repeal
the same, shall submit it to popular vote as provided in
section 7.02 of this charter." Id. If the City
Council submits the ordinance to popular vote, "Pending
the holding of such election such ordinance or resolution
shall be suspended from taking effect and shall not later
take effect unless a majority of the qualified voters voting
thereon at such election shall vote in favor thereof."
October 12, 2015, following public hearings and review by the
city planning department, the City Council adopted ordinance
2015-10-9 establishing a new comprehensive plan (the Plan)
and repealing the previous comprehensive plan. After adoption of
the Plan, several citizens began collecting signatures on a
petition requesting a referendum under the provisions of the
city charter. On November 10, 2015, the petition was
presented to the City Secretary.
City Secretary did not act on the referendum petition. On
November 23, 2015, the City Council met to discuss the
petition and was advised by outside counsel that zoning
regulations are not subject to a referendum vote. On January
20, 2016, counsel for appellees sent a letter to the city
attorney requesting that the City Secretary present the
referendum petition to the City Council as required by the
charter and that the City Council perform its duties under
the charter when presented with the petition. No one with the
City responded to the letter or complied with appellees'
then filed this suit seeking a writ of mandamus directing the
City Secretary to present the petition to the City Council
and directing the City Council to reconsider the Plan and
submit it to popular vote if the council did not entirely
repeal the Plan. In addition, appellees sought a declaratory
judgment that pending approval by the voters in a referendum
the Plan is suspended and invalid, is not the current
comprehensive plan, and the repealed comprehensive plan is
the current comprehensive plan.
City filed a plea to the jurisdiction asserting governmental
immunity and ripeness by challenging the jurisdictional
allegations in appellees' petition. After hearing the
arguments of counsel, the trial court denied the plea to the
jurisdiction. The City then filed this interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code Ann. §
Standard of Review
to the jurisdiction is a dilatory plea that challenges the
trial court's subject matter jurisdiction without regard
to the merits of the claims asserted. Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review
the trial court's ruling on a plea to the jurisdiction de
novo. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a plea to
the jurisdiction challenges the pleadings, we determine if
the pleader has alleged facts affirmatively showing the
court's jurisdiction. Id. We construe the
pleadings liberally in favor of the plaintiffs and look to
the pleader's intent. Id. In this case, the City
did not challenge the existence of jurisdictional facts and
the parties did not submit evidence; therefore, we consider
only the jurisdictional allegations in the pleadings.
to the jurisdiction presents only the question of the
court's jurisdiction to hear the case; it does not
present the merits of the case for determination. Heckman
v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012);
Consumer Serv. All. of Texas, Inc. v. City of
Dallas, 433 S.W.3d 796, 802 (Tex. App.-Dallas 2014, no
pet.). Therefore, we consider only the jurisdictional issue,
not the merits of the underlying case. City of Dallas v.
Brown, 373 S.W.3d 204, 209 (Tex. App.-Dallas 2012, pet.
immunity from suit defeats a trial court's subject matter
jurisdiction unless immunity has been expressly waived.
Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex.
2012); Miranda, 133 S.W.3d at 224. Additionally, the
law has long recognized that a writ of mandamus will issue to
compel a public official to perform a ministerial act.
See Anderson v. City of Seven Points, 806 S.W.2d
791, 793 (Tex. 1991). Thus, governmental immunity does not
bar a suit seeking to compel public officials to comply with
statutory or constitutional provisions or to perform a
ministerial act. See City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009) ("[I]t is clear that
suits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign
immunity . . . ."). The plaintiff "must allege, and