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Tabrizi v. City of Austin

Court of Appeals of Texas, Eighth District, El Paso

April 25, 2018


          Appeal from 53rd District Court of Travis County, Texas (TC # D-1-GN-15-002968)

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



         Texas cities enjoy governmental immunity and cannot be sued absent some recognized waiver of that immunity.[1] What recourse, then, does a property owner have when a city applies, or misapplies, its municipal land use regulations so as to deny a fair use of their property? At the extreme, if the City substantially deprives a landowner of all economically viable uses of the property, the City is subject to a constitutional takings claim which overcomes governmental immunity.[2] If the land use regulation is illegal or unconstitutional, a property owner may seek a declaration to that affect, which also overcomes immunity.[3] In this case, the owners of a parcel of land in Austin pursued two other options.[4] They filed a declaratory judgment action against the city to construe several of its ordinances. Additionally, they sued various city officials claiming they acted ultra vires by misapplying city ordinances. The trial court dismissed both these claims on a plea to the jurisdiction, and further denied the land owners leave to amend their petition.

         We agree with the trial court that governmental immunity precludes a declaratory judgment claim against the City of Austin to construe its ordinances. The holding is somewhat academic in this case, however, because we must construe the same ordinances to determine if the land owners have validly asserted an ultra vires claim against several City officials. In doing so, we conclude that the trial court correctly construed the ordinances (and thus correctly dismissed the ultra vires claims). Finally, we conclude the trial court did not err in denying leave to amend, and affirm the judgment below.


         This case arises from a dispute between the Ali and Donna Tabrizi (the Tabrizis) and the City of Austin (the City) over the Tabrizis' desire to build a house on an undeveloped piece of land. The Tabrizis allege in their last live pleading that they purchased the lot in 2013, which was a .56 acre "remainder" lot from four subdivisions developed around it. Their lot is not itself in a subdivision, nor has it been platted. It has, however, been on the tax roles for more than forty years and is zoned for residential use.

         When the Tabrizis investigated obtaining a building permit, they were told by the City that they would need to first obtain a plat, which required them to file a subdivision application. Title 25 of the City's municipal code governs development. Subdivision and platting regulations are found in Chapter 25-4 of that title. See Austin, Tex. Austin City Code, ch. 25-4 et. seq. (2018) (hereinafter, City Code). But as a part of that application process, the City required the Tabrizis to comply with its environmental restrictions, as found in Chapter 25-8. That chapter includes a section addressing "critical environmental features." Id. at 25-8, § 25-8-281. As it turns out, there is a "seep" on the back end of the Tabrizis' lot which is one type of critical environmental feature referenced in the code.[5] Eventually, the Tabrizis' proposed a subdivision that divided their property into two lots--one that would remain undeveloped and buffer the seep--and the other to be used for their residence. Nonetheless, the City rejected their application and a further request to obtain a variance from the environmental rules.

         The Tabrizis then sought to circumvent the subdivision platting altogether. Under Chapter 25-4, a property is exempt from platting if it (1) is five acres or less, (2) existed in its current configuration on January 1, 1995, (3) was receiving utility services on January 1, 1995, as authorized under the rules of a utility provider, (4) is located on an existing street, and (5) complies with the requirements for roadway frontage. Id. at ch. 25-4, § 25-4-2(D). The only predicate at issue in this case was whether the lot had received utility service on January 1, 1995. The lot abuts a street with curbs and gutters. The Tabrizis contended that the curb and gutter drainage facilities qualified the lot as receiving utility service. The City disagreed and declined to grant an exemption.

         The Tabrizis then filed this lawsuit against the City and three of its employees in their official capacity. The Tabrizis' last amended petition seeks a declaration that (1) the requirements of Chapter 25-8 (the environmental rules) do not apply to their subdivision application and that the actions of the several officials were ultra vires by applying 25-8 to their application, and (2) they meet the exception from platting as found in Section 25-4-2 because the lot was "receiving utility service" on January 1, 1995.

         The City and its officials filed a plea to the jurisdiction supported in part with the affidavit of Charles Lesniak, the chief environmental officer for the City. The Tabrizis objected to portions of his affidavit. Eventually his entire deposition was attached to the plea to the jurisdiction record. The trial court sustained the objections to Lesniak's affidavit, but viewed the matter as a legal dispute that could be decided from the petition and the City ordinances. Based on its review, the trial court concluded that it had no jurisdiction to consider a declaratory suit against the City to construe its ordinances. The court also concluded the ultra vires claims failed because the City officials were acting pursuant to their authority under the development ordinance. The Tabrizis sought leave to amend their petition, which the trial court denied. This appeal follows.


         When it applies, governmental immunity protects political subdivisions of the State, including cities, from suit. See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). A governmental unit's immunity implicates a trial court's subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017). Governmental immunity generally applies to municipalities when they are performing governmental as opposed to proprietary functions. Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016); City of Austin v. Utility Associates, Inc., 517 S.W.3d 300, 307-08 (Tex.App.--Austin 2017, pet. denied). Platting determinations are a governmental function. City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex. 1985).

         As here, a governmental unit may raise its immunity through a plea to the jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); County of El Paso v. Navar, 511 S.W.3d 624, 629 (Tex.App.--El Paso 2015, no pet.). The function of the plea is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). As the plaintiffs, the Tabrizis carry the burden to demonstrate that the trial court has subject-matter jurisdiction over their claims. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); City of El Paso v. Waterblasting Technologies, Inc., 491 S.W.3d 890, 895 (Tex.App.--El Paso 2016, no pet.). To determine if they have met that burden, we consider the facts alleged in the petition and, "to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Whitley, 104 S.W.3d at 542; see also Miranda, 133 S.W.3d at 227; Bland Independent School Dist, 34 S.W.3d at 555. "We construe the pleadings liberally, taking them as true, and look to the pleader's intent." Creedmoor-Maha Water Supply Corp. v. Texas Commn. on Envtl. Quality, 307 S.W.3d 505, 513 (Tex.App.--Austin 2010, no pet.), citing Miranda, 133 S.W.3d at 226-27. If the record includes jurisdictional evidence controverting the pleaded allegations, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and doubt in the nonmovant's favor. Miranda, 133 S.W.3d at 228; Creedmoor-Maha, 307 S.W.3d at 513.

         We review de novo the question of whether a plaintiff has alleged facts sufficient to affirmatively demonstrate a trial court's subject matter jurisdiction, and whether the jurisdictional facts establish a trial court's jurisdiction (or lack thereof). State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Bland Independent School Dist, 34 S.W.3d at 554; see also Tex. Natural Res. Conservation Comm 'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).


         The Tabrizis raise five issues for our review that contend the trial court erred: in dismissing the claim against the City (Issue One); dismissing the ultra vires claims against the City officials (Issues Two and Three); and in denying them leave to amend their petition (Issues Four and Five). We take each in turn.

         The Declaratory Judgment Act does not waive Governmental Immunity to Construe an Ordinance

         In their first issue, the Tabrizis contend that the trial court erred in dismissing the claim against the City because a court has jurisdiction to construe a statute against a governmental entity so long as no monetary relief is sought. The Tabrizis' suit seeks a declaration under the Texas Declaratory Judgment Act (the DJA). That act expressly allows for a "person … whose rights, status, or other legal relations are affected by a … municipal ordinance … [to] have determined any question of construction or 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)(West 2015). The DJA, however, does not grant a trial court's subject matter jurisdiction--it is "merely a procedural device for deciding cases already within a court's jurisdiction." Texas Ass 'n of Bus. v. Texas Air Control Bd, 852 S.W.2d 440, 444 (Tex. 1993); see Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011)(per curiam)(noting that Texas Supreme Court has consistently stated that the DJA "does not enlarge the trial court's jurisdiction but is 'merely a procedural device for deciding cases already within a court's jurisdiction'"). Accordingly, the DJA "is not a general waiver of sovereign immunity" but only waives "immunity for certain claims." Texas Parks & Wildlife Dep 't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); McLane Company, Inc. v. Texas Alcoholic Beverage Comm n , 514 S.W.3d 871, 876-77 (Tex.App.--Austin 2017, pet. denied).

         The extent of "those certain claims" is at the heart of the Tabrizis' first issue. The Tabrizis contend that the Texas Supreme Court's decision in Texas Lottery Com 'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634-35 (Tex. 2010) allows a court under the DJA to "construe" a statute, or as here, an ordinance. Conversely, the City contends that one year later the Texas Supreme Court in Texas Dep't of Transp. v. Sefzik made clear that the DJA could only be used to challenge the validity of a statute. The City points out the Tabrizis' petition asks the courts to construe several ordinances, and not invalidate them. The Dallas Court of Appeals mentioned a possible conflict between DeQueen and Sefzik in City of McKinney v. Hank's Restaurant Group, L.P., 412 S.W.3d 102, 111-12 (Tex.App.--Dallas 2013, no pet.)("The law has been evolving on the question of whether the Act waives governmental immunity against a claim seeking only the interpretation of a statute or a declaration of a party's statutory rights."). The Dallas court concluded, however, that Sefzik controlled, and the DJA "does not waive immunity against claims seeking a declaration of the claimant's statutory rights or an interpretation of an ordinance." Id. at 112. The court principally rested this conclusion on Sefzik and another of the high court's recent decisions, City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). Nonetheless, the Tabrizis cite several cases for the proposition that immunity is waived for interpretation of statute.[6]Both parties also direct us to other cases limiting the DJA to suits seeking to invalidate statutes.[7]

         The court in DeQueen had to decide which of two conflicting statutes controlled the assignability of lottery winnings. 325 S.W.3d at 631-32. The court was required to effectively invalidate one of the conflicting ordinances. Id. at 634 ("FSB asserts that immunity does not apply because . . . it is not challenging an individual's actions under a statute, but is challenging the validity of the statute itself. We agree."). But to the extent there is a conflict in the high court's jurisprudence, Sefzik is the latest pronouncement and we feel compelled to follow it. Any further clarification needs to come from the Texas Supreme Court. In this case, however, we view the conflict as somewhat academic because we are required to construe the very same ordinances to resolve the Tabrizis' ultra vires claims against the City officials.

         Governmental immunity does not apply when a government official acts outside his or her authority. See Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 157 (Tex. 2016); Sawyer Trust, 354 S.W.3d at 393. This exception, referred to as an ultra vires claim, applies when a state actor either fails to perform a ministerial task, or acts without legal authority. Southwestern Bell Telephone, L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015); Heinrich, 284 S.W.3d at 372. Proper suits alleging ultra vires do not implicate governmental immunity because they "do not seek to alter government policy but rather to enforce existing policy." Bacon v. Texas Historical Commission, 411 S.W.3d 161, 173 (Tex.App.--Austin 2013, no pet.).

         To determine whether a party has asserted a valid ultra vires claim, we must construe the relevant statutory provisions, apply them to the facts as alleged in the pleadings, and determine whether those facts constitute acts beyond the official's authority or establish a failure to perform a purely ministerial act. See Texas Dep 't of Transp. v. Sunset Transp., Inc.,357 S.W.3d 691, 701- 02 ...

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