Court of Appeals of Texas, Third District, Austin
THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-006114, THE HONORABLE SCOTT H. JENKINS, JUDGE
Chief Justice Rose, Justices Kelly and Smith
Sakonchick II appeals from a district court's order
sustaining a plea to the jurisdiction and dismissing with
prejudice his constitutional challenge to a construction
permit Travis County issued to the owners of a commercial
property near Sakonchick's home. See Tex. Civ.
Prac. & Rem. Code § 51.014(a)(8) (allowing
accelerated interlocutory review of trial court's
disposition of governmental unit's jurisdictional plea).
We will affirm the order as modified herein.
dispositive facts of this dispute are largely uncontested.
For more than 25 years, Sakonchick has owned a home on in a
neighborhood known as the Bee Creek Hills Addition ("Bee
Creek") in western Travis County and within the City of
Austin's extra-territorial jurisdiction. See
Tex. Gov't Code 42.001-.904 (defining and governing
extra-territorial jurisdictions). Bee Creek's only means
of vehicular ingress and egress is along Canon Wren Drive, a
cul-de-sac accessible from westbound Bee Cave Road (also
known as FM 2244) just west of the Capital of Texas Highway
(also known as State Highway Loop 360).
Overlook at Rob Roy ("The Overlook") is a real
estate development featuring a four-story mixed-use office
building on the northeast corner of Bee Cave Road and Canon
Wren Drive. The office building fronts on Bee Cave Road but
is accessible from both Bee Cave Road and Canon Wren Drive,
and The Overlook's land abuts some of Bee Creek's
residential lots. Like Bee Creek, The Overlook is in an
unincorporated area of Travis County but within the City of
Austin's extra-territorial jurisdiction.
Overlook's owners applied for a basic development permit
to construct a parking garage and a second driveway on Canon
Wren Drive. Travis County apparently did not notify the
homeowners in Bee Creek of the pending permit application,
but Sakonchick and his neighbors eventually learned of the
application. Concerned about the possibility of increased
traffic, Sakonchick began calling Travis County to voice his
objections to the proposed construction and subsequently
submitted his concerns in writing. Travis County ultimately
issued basic development permit No. 16-12039 on August 14,
2018, to allow the "[a]ddition of a 65 space [sic]
parking garage and associated water quality and stormwater
detention ponds" at The Overlook. The County then sent
notice of the issued permit to the residents of Bee Creek.
that Travis County failed to address his concerns before
issuing the permit, Sakonchick sued Travis County and The
Overlook's owners in Travis County district court,
pleading various theories under state and federal law and
seeking to enjoin construction of the garage. He subsequently
named the City of Austin as an additional defendant. When the
defendants removed the case to federal court, see 28
U.S.C. § 1441 (allowing removal of any suit over which
the federal courts would have original jurisdiction),
Sakonchick successfully moved to remand the case back to
state court after amending his complaint to delete all
federal claims, see id. § 1447(c) (governing
remand of removed cases). His live petition for relief
alleges that Travis County violated his right to due course
of law, see Tex. Const. art. I, §19, by issuing
the permit without first providing Sakonchick with notice and
a hearing. Travis County filed a plea to the jurisdiction,
which the district court sustained after an evidentiary
hearing. Sakonchick filed timely appeal.
presents three issues on appeal: first, he contends the
district court erred by sustaining Travis County's plea
to the jurisdiction; second, he argues in the alternative
that the district court erred by denying him an opportunity
to amend his pleadings to cure any jurisdictional defect; and
third, he argues that even if his claim against Travis County
is properly dismissed for want of jurisdiction, the district
court erred by dismissing the claim with prejudice.
to the Jurisdiction
first issue, Sakonchick contends the district court erred by
finding no jurisdiction over his claim. Travis County
disagrees, arguing that Sakonchick cannot overcome its
immunity from suit and that the district court therefore
properly sustained its plea. We review the district
court's disposition of a plea to the jurisdiction de
novo. City of New Braunfels v. Carowest Land, Ltd.,
432 S.W.3d 501, 512 (Tex. App.-Austin 2014, no pet.).
political subdivision of the state, Travis County benefits
from governmental immunity. See Tooke v. City of
Mexia, 197 S.W.3d 325, 330 & n.11 (Tex. 2006).
"In Texas, governmental immunity has two components:
immunity from liability, which bars enforcement of a judgment
against a governmental entity, and immunity from suit, which
bars suit against the entity altogether." Id.
at 332. Immunity from suit does not extend to claims arising
from an unconstitutional act. See City of Houston v.
Downstream Envtl., L.L.C., 444 S.W.3d 24, 38, 39- 40
(Tex. App.-Houston [1st Dist.] 2014, pet. denied) (reversing
district court's denial of plea to the jurisdiction after
concluding plaintiffs had not alleged viable due process