Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE ESTATE OF J.B. WELLS JR., DECEASED
appeal from the County Court of Gonzales County, Texas.
Chief Justice Contreras and Justices Longoria and Perkes
GREGORY T. PERKES JUSTICE
an accelerated appeal concerning whether the trial court had
jurisdiction over appellee Austin Presbyterian Theological
Seminary's (Seminary) claims against appellants, the City
of Gonzalez (the City), its mayor Connie L. Kacir, and city
council member Gary Schroeder. Seminary filed suit seeking to
enforce its reversionary interest in property that was
conditionally deeded to the City for use as a public park.
Seminary alleged causes of action for inverse condemnation,
trespass-to-try-title as to the individual appellants only,
and declaratory relief. The City, Kacir, and Schroeder filed
a plea to the jurisdiction, which the trial court denied.
issues, which we construe as three, appellants argue the
trial court erred in denying their plea to the jurisdiction
because: (1) the inverse condemnation claim against the City
is not viable because no constitutional taking occurred; (2)
the trespass-to-try-title claim against the city council
members is barred by the City's governmental immunity
because the officials were sued in their official capacity;
and (3) Seminary's request for declaratory relief is also
barred by the City's governmental immunity. We affirm.
1961, J.B. Wells Jr. conditionally bequeathed 123 acres of
land "for public park purposes" to the City in his
will and trust, as follows:
(2) I direct my trustees to grant and convey the 123 acre
tract of land known as the Santa Anna tract located around my
Santa Anna Mound Deer Park and bounded by Highway 183 and the
right of way of the former State Highway No. 29 with the
exception of a twenty-three acre triangular shaped parcel of
land cut off by a partition fence in the corner of said tract
nearest the Guadalupe River Bridge, the remainder of that
portion of said 311 acre Santa Anna Mound tract of land on
the same side of the relocated Highway No. 183, as the Santa
Anna Mound and Deer Park and containing 123 acres of land,
more or less, to the City of Gonzales, Texas, for public park
purposes, subject to the conditions herein set out.
. . . .
(a) Said land shall forever be used for the purpose of
establishing, operating and maintaining a public park
therein, and for such purpose only and shall never be sold.
(b) Said land and grounds shall always be known as
"Wells Park" it being my wish to establish the park
as a permanent memorial to my father, Jim Bailey Wells, and
my mother, Josephine Henry Wells, both pioneer citizens of
Gonzales County, Texas.
(c) Such grant and conveyance shall reserve to my ancestors
the right to create and maintain on said land, at the expense
of my estate, a suitable monument or monuments to the memory
of my father and mother. . . .
(d) My camp lodge and its fenced grounds shall be maintained
in good condition, and the beautiful live oak tree on the
grounds and the shrubbery and trees shall be well cared for.
The building shall be maintained in good repair and shall be
used as a museum for my various collections of guns,
revolvers, pistols, fishing reels, fishing rods, hunting
knives, etc., and many other items of like nature and shall
be used for this purpose only. These collections and items
shall be kept on display there.
(e) My Santa Anna Mound Deer Park shall be maintained in its
natural condition of natural woodland and shall never be
cleared of trees and shrubs. It shall be kept clean of dead
timber and necessary replacements shall be trees and shrubs
native to this section of Texas. It shall be kept as a game
sanctuary for native Texas white tail deer, of which a few
shall be kept in the park.
This land shall be deeded or transferred to the City of
Gonzales under the provision that it may not be sold or
transferred under any condition whatsoever.
. . . .
If the City of Gonzales . . . should sell all or any part of
the real estate hereinabove devised to them in the final
settlement of my estate, then the purchase money shall
immediately revert to and become the property of the Austin
Presbyterian Theological Seminary or its successor. In the
event that the City of Gonzales . . . should use income
bequeathed to [it] in the final settlement of my estate for
purposes other than those designated in my will, then, and in
such event, such income shall immediately ...