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Grossman v. Wolfe

Court of Appeals of Texas, Third District, Austin

June 21, 2019

Max Grossman, Appellant
Mark Wolfe, Executive Director, Texas Historical Commission, Appellee


          Before Chief Justice Rose and Justices Kelly and Smith.


          Jeff Rose, Chief Justice.

         Appellant 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.


         In 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."[1] 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.

         In May 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").[2] 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).[3] 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.

         Grossman 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.

         Regarding 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 vires acts.

         The 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.

         Standard of Review

         Procedurally, 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.

         To the 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).


         To 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 ...

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