Court of Appeals of Texas, Third District, Austin
THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-006433, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING.
Chief Justice Rose and Justices Kelly and Smith.
Rose, Chief Justice.
Max Grossman, a resident of El Paso, sued Wolfe-in his
capacity as Executive Director of the Texas Historical
Commission-for declaratory and injunctive relief related to
the allegedly unlawful issuance of an archeological permit
for an area of downtown El Paso designated as the site for a
proposed construction project. Grossman appeals from the
district court's order sustaining appellee Mark
Wolfe's plea to the jurisdiction. We will affirm.
November 2012, El Paso voters approved a proposition
authorizing the City of El Paso to issue bonds for various
"quality of life" projects, including the
construction of a "multipurpose performing arts and
entertainment facility." The City has decided to build
this facility in a mixed-use area of downtown El Paso known
as the Duranguito or the Union Plaza district, and it has
purchased the property needed for the project. The plans for
the project require demolition of existing buildings located
within the footprint of the proposed facility.
2018, the City notified the Texas Historical Commission about
its construction project, as required by the Texas
Antiquities Code. See Tex. Nat. Res. Code §
191.0525(a) (requiring responsible party to notify Commission
"[b]efore breaking ground at a project location on state
or local public land"). The Commission instructed the
City to submit a permit application and research design under
Commission Rule 26.13, and the City complied. See 13
Tex. Admin. Code § 26.13 (Texas Historical Comm'n,
Application for Archeological Permits). In its permit
application, the City proposed that it be allowed to demolish
the existing buildings at the project site so that it could
investigate the project site using ground-penetrating radar.
The Commission granted the City's permit.
filed the underlying suit against Wolfe, in his capacity as
executive director of the Commission, seeking declaratory and
injunctive relief in connection with the issuance of the
archeological permit. Grossman alleged that Wolfe acted ultra
vires in issuing the permit because (1) the Commission had
not approved it or issued the permit as required by
Commission rules, see id. § 26.14(a)(1)
(Issuance and Restrictions of Archeological Permits)
(specifying requirements for permit applications); and (2)
the permit unlawfully allows the City to "commence"
its construction project-specifically, demolish the existing
buildings-before completion of an archeological survey,
see Tex. Nat. Res. Code § 191.0525(c) ("If
the committee determines that an archeological survey is
necessary at the project location, the project may not
commence until the archeological survey is completed.").
As relief, Grossman asked the district court to declare the
permit void and to enjoin the City from conducting the
archeological survey authorized by the permit.
jurisdiction, Grossman asserted in his pleadings that the
district court had jurisdiction over his suit under the
Uniform Declaratory Judgments Act, Chapter 442 of the Texas
Government Code, and Chapter 191 of the Texas Natural
Resources Code. See Tex. Civ. Prac. & Rem. Code
§ 37.004 ("A person . . . whose rights, status, or
other legal relations are affected by a statute . . . may
have determined any question of construction or validity
arising under the . . . statute . . . and obtain a
declaration of rights, status, or other legal relations
thereunder."); Tex. Gov't Code § 442.012(a)
("[A]ny resident of this state may file suit in district
court to restrain and enjoin a violation or threatened
violation of this chapter or Chapter 191, Natural Resources
Code, . . . for . . . injunctive relief . . . ."); Tex.
Nat. Res. Code § 191.173(a) ("A citizen of the
State of Texas may bring an action . . . for restraining
orders and injunctive relief to restrain and enjoin
violations or threatened violations of this chapter . . .
."); see also Tex. Gov't Code §§
442.001-.207 (titled "Texas Historical
Commission"); Tex. Nat. Res. Code §§
191.001-.174 (Antiquities Code). Grossman argued that
sovereign immunity was not a bar to jurisdiction because he
was suing Wolfe in his official capacity for allegedly ultra
City intervened in Grossman's suit against Wolfe,
asserting a general denial and arguing that sovereign
immunity barred Grossman's claims against Wolfe. In a
plea to the jurisdiction, Wolfe challenged Grossman's
standing to sue and argued that sovereign immunity barred
Grossman's claims because neither the Government Code nor
the Antiquities Code contains a waiver of immunity.
Ultimately, the district court sustained Wolfe's plea to
the jurisdiction and dismissed Grossman's case. Grossman
perfected this appeal.
the assertion of sovereign immunity or lack of standing
implicates the trial court's jurisdiction and may
therefore be asserted in a plea to the jurisdiction.
Houston Belt & Terminal Ry. v. City of Houston,
487 S.W.3d 154, 160 (Tex. 2016); Rusk State Hosp. v.
Black, 392 S.W.3d 88, 91 (Tex. 2012). Parties may submit
evidence at the plea-to-the-jurisdiction stage, and the trial
court's review generally mirrors the summary-judgment
standard. Sampson v. University of Tex., 500 S.W.3d
380, 384 (Tex. 2018). "If the evidence creates a fact
question regarding the jurisdictional issue, then the trial
court cannot grant the plea to the jurisdiction, and the fact
issue will be resolved by the fact finder. 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."
Texas Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 227-28 (Tex. 2004); see also Klumb v.
Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex.
2015). The jurisdictional inquiry may unavoidably implicate
the underlying substantive merits of the case when, as often
happens in ultra vires claims, the jurisdictional inquiry and
the merits inquiry are intertwined. Miranda, 133
S.W.3d at 228. The trial court's ruling on a plea to the
jurisdiction is reviewed de novo on appeal. Klumb,
458 S.W.3d at 8.
extent our analysis here includes questions of statutory
construction, we review these questions de novo. Molinet
v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).
invoke the subject-matter jurisdiction of the district court
over his claims challenging government action, Grossman must
have standing to bring his claims, and he must overcome the
sovereign immunity that generally bars such claims. Bacon
v. Texas Historical Comm'n, 411 S.W.3d 161, 172
(Tex. App.-Austin 2013, no pet.) (noting that party
challenging government action must overcome or avoid
fundamental limitations on subject-matter jurisdiction of
standing and sovereign immunity). On appeal, Grossman asserts
that the district court erred in concluding that it lacked
subject-matter jurisdiction because (1) sovereign immunity
does not bar his ultra vires claims against Wolfe; (2) the
Antiquities Code waives sovereign immunity for claims that a
government body or government official has violated or
threatens to violate the Antiquities Code; (3) the
Antiquities Code confers standing to sue on Grossman because