the 414th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Neill, and Judge Youngblood
GRAY, CHIEF JUSTICE
Waco sued the City for breach of contract and for a permanent
injunction. The trial court denied the City's plea to the
jurisdiction. In two issues, the City contends the trial
court erred because the City is immune from suit and because
the Texas Commission on Environmental Quality has exclusive
jurisdiction of the issues raised in the underlying case.
Because we determine that the claims raised by Lake Waco in
its underlying suit are not ripe, we remand the case to the
trial court with instructions to vacate its Order Denying
Defendant's Plea to the Jurisdiction and to dismiss Lake
Waco's suit for want of jurisdiction.
time ago, the City bought a landfill on Highway 84 from the
City of Woodway. The permit number for this landfill was 948.
In 1987, the City filed an application with the Department of
Health (TDH) seeking an amendment to the permit to expand the
landfill. The application for the expansion permit was
February of 1992, permit 948-A was issued. Within 30 days,
Wanda Glaze, a citizen who lived near the landfill, appealed
the agency's decision to a Travis County District Court.
She named TDH and several others, including the City, as
defendants. By mid-October, 1992, the City and Wanda executed
a settlement agreement in which, among other things not
relevant to our decision, the City agreed that it would
"not expand the 948-A beyond its current
boundaries." (Emphasis added.) The 1992 suit was
dismissed with prejudice in December of 1992. Although the
order of dismissal indicated that the parties requested an
order dismissing the case, no details of the settlement were
incorporated into the order.
about April 20, 2004, the City purchased a 159-acre tract
which was adjoined to the western side of the area which
comprised 948-A. In June of 2005, the City held a public
meeting about its planned expansion of the 948-A landfill.
Lake Waco reminded the City about the settlement
agreement. No application was filed at that time. In 2011,
the City bought a 133-acre tract which adjoined the 159-acre
tract purchased in 2004. In 2016, the City held meetings with
Lake Waco to discuss a proposed landfill encompassing the
133- and 159-acre tracts which, combined, adjoin and are
contiguous to the 948-A landfill. Again, Lake Waco advised
the City that the proposed landfill violated the settlement
agreement. The City allegedly replied that the proposed
landfill was not an expansion, but a "new permit."
January 31 of 2017, Lake Waco filed its original petition
against the City for breach of contract and to permanently
enjoin the City from pursuing the construction and operation
of the proposed landfill and from taking any other action
that "expands" the 948-A landfill beyond its
current boundaries. The City filed a plea to the jurisdiction
alleging it was immune from suit and the trial court had no
jurisdiction because Lake Waco had no standing to bring its
suit. The City's plea was denied.
briefing was complete on appeal, we recognized that Lake
Waco's suit may not be ripe and requested briefing on the
issue by both parties. Both parties assert that Lake Waco's
suit is ripe. We disagree with the parties.
fundamental that a court has no jurisdiction to render an
advisory opinion on a controversy that is not yet ripe.
Camarena v. Tex. Emp't Comm'n, 754 S.W.2d
149, 151 (Tex. 1988). Ripeness is a threshold issue that
implicates subject matter jurisdiction and emphasizes the
need for a concrete injury for a justiciable claim to be
presented. In re Depinho, 505 S.W.3d 621, 624 (Tex.
2016); Robinson v. Parker, 353 S.W.3d 753, 755 (Tex.
2011). In evaluating ripeness, we consider whether, at the
time a lawsuit is filed, the facts are sufficiently developed
so that an injury has occurred or is likely to occur, rather
than being contingent or remote. Id.; Waco
Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.
2000). A case is not ripe when the determination of whether a
plaintiff has a concrete injury can be made only "on
contingent or hypothetical facts, or upon events that have
not yet come to pass." Robinson, 353 S.W.3d at
756; Gibson, 22 S.W.3d at 852. Although a claim is
not required to be ripe at the time of filing, if a party
cannot demonstrate a reasonable likelihood that the claim
will soon ripen, the case must be dismissed.
Robinson, 353 S.W.3d at 755; Perry v. Del
Rio, 66 S.W.3d 239, 251 (Tex. 2001).
Waco contends that "the City ha[s] taken concrete steps
to expand the 948-A Landfill site…including purchasing
land, drawing up written plans for the expanded landfill, and
specifically informing Lake Waco of its intent to proceed
with the expanded landfill." Nothing in the record,
however, indicates that the City has actually expanded or now
intends to expand the 948-A landfill. The only action the
City has taken is the purchase of two tracts of land adjacent
to the 948-A landfill. Although in 2005 the City initially
discussed the expansion of the 948-A landfill after the 2004
purchase of the 159-acre tract, no application for an amended
permit or a new permit, since that time, has been filed. And
according to the City, the permitting process takes a
long time to complete. Lake Waco does not dispute
the length of time for the permitting process. The previous
application process ...