Court of Appeals of Texas, Eighth District, El Paso
from the 448th District Court of El Paso County, Texas (TC#
Alley, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE.
County, Texas (the "County"), appeals the trial
court's denial of its Plea to the Jurisdiction, alleging
that El Paso County Emergency Services Districts No. 1 and
No. 2 ("ESD No. 1" and "ESD No. 2,"
respectively; collectively, the "ESDs") failed to
sufficiently plead their request for declaratory judgment
against the County under the Uniform Declaratory Judgment Act
("UDJA") to waive the County's immunity from
agree. The ESDs fail to plead a valid waiver of the
County's sovereign immunity under the UDJA. Additionally,
the facts alleged indicate the presence of fatal
jurisdictional defects, including lack of standing to seek
most of the requested relief, which cannot be cured by
further amendment. We find the trial court erred in denying
the County's plea to the jurisdiction and that the
ESDs' request for declaratory judgment should have been
reverse and render judgment for the County of El Paso.
Between the ESDs and the County
facts in this appeal are brief and appear to be undisputed.
On August 29, 2016, ostensibly acting under the authority of
Section 775.305, the El Paso County Commissioners Court (the
"Commissioners Court") denied the ESDs'
recommended tax rates for fiscal year 2017. On October 3,
2016, the Commissioners Court ratified the statutory tax
rates for the ESDs for fiscal year 2017. The Commissioners
Court notified the City Tax Assessor about the ESDs' tax
rates by correspondence from the Commissioners Court's
counsel on October 4, 2016. Counsel for the ESDs was copied
on the letter to the City Tax Assessor. On October 7, 2016,
then-County Judge Veronica Escobar contacted the ESDs by
letter explaining that the effective rate was adopted by
operation of law consistent with the requirements of Section
26.05(c) of the Texas Tax Code because the ESDs failed to
submit an amended recommended budget or tax rate following
the denial on August 29, 2016.
ESDs filed the instant lawsuit on December 29, 2016. On March
6, 2017, they filed their First Amended Original Petition for
Declaratory Judgment. Then, on July 20, 2017, the Third
Amended Original Petition (hereafter "the Petition" or
"the ESDs' Petition") was filed. It is the live
pleading now at issue in this case.
Petition contains a boilerplate jurisdictional assertion
stating, "[t]he subject matter in controversy is within
the jurisdictional limits of this Court. This Court has
jurisdiction over the parties because all the parties are
Texas residents and/or operate the relevant business or
services in Texas, as applicable." In the Petition's
facts section, the ESDs provide a general background on the
creation of emergency services districts in Texas and how
they are governed and funded. The ESDs then discuss
Subchapter K and the County's alleged role in petitioning
the state legislature for its enactment.
follows next in the Petition are the ESDs' opinions
regarding the County's implementation of Subchapter K
beginning with fiscal years 2016 (which the ESDs refer to as
fiscal years 2015-2016) and 2017 (which the ESDs refer to as
fiscal years 2016-2017). Specifically, the ESDs allege that
the County erroneously believes that Subchapter K (a) grants
it complete oversight over the budget and tax rates of the
ESDs, (b) requires the ESDs' boards to account to the
County regarding all budgetary matters, and (c) gives the
County final approval over the ESDs' budget and tax rate.
The ESDs further allege that the County asserts that if it
does not approve of the ESDs' budgets and tax rates, then
the budgets and tax rates "adopted" by the ESDs are
ESDs reference four documents purportedly attached to their
pleading, which they allege is evidence of actions taken by
the County of which they now complain. However, there are no
documents attached to the Petition and it is unclear from the
allegations what actions the County allegedly took about
which the ESDs complain. In spite of the exhibit's
absence, we consider the documents attached to the ESDs'
Original and First Amended Original Petitions, which appear
to be the exhibits they intended to attach to their most
recent pleading and are a part of the record on appeal. The
documents consist of a copy of the full text of Subchapter K;
excerpts from the meeting minutes of the October 3, 2016
Commissioners Court meeting; the letters from Assistant
County Attorney Jed Untereker to the City of El Paso Tax
Assessor notifying her of the tax rates adopted for fiscal
year 2017 as to both of the ESDs; and the letter from
then-County Judge Veronica Escobar to counsel for the ESDs
regarding the reasoning behind the Commissioners Court not
approving the ESDs' recommended tax rates.
ESDs allege that the County's actions reduced their
expected tax revenues in 2016 by $53, 819.00 as to ESD No. 1,
and $165, 148.03 as to ESD No. 2.
Petition then mentions a lawsuit filed in the Western
District of Texas styled El Paso County, et al. v. The
State of Texas, et al. The ESDs quote what they allege
to be a portion of the complaint in that suit and allege
that, therein, the County asserts, "the same arguments,
allegations and defenses [under the United States
Constitution's Fourteenth Amendment Due Process Clause]
on its own behalf as those set forth in this instant
suit" by the ESDs. It is not clear from reading the
Petition what the cited portion of the federal case has to do
with the ESDs' lawsuit against the County.
their request for declaratory relief, the ESDs seek the
following declarations, which are stated below exactly as set
forth in the Petition, except where indicated otherwise:
1. Chapter 775(k)/775.305 [sic] of the Texas Health and
Safety Code does not give to El Paso County, Texas, final
approval authority over [the ESDs'] budgets and tax
2. Section 26.05(c) of the Texas Tax Code does not apply to
the action taken by El Paso County Texas, to reduce the tax
rate adopted by the [boards] for both [ESDs] and should not
have been utilized by El Paso County, Texas, to reduce the
adopted tax rates to the lower or effective tax rate for 2016
or actual tax rate for 2016.
3. The power alleged to have been given to El Paso County,
Texas under Chapter 775(k)/775.305 [sic] i[s] not at all
common as asserted by the County of El Paso, as it only
applies to both [ESDs] and to no other districts in the State
4. Alternatively, Section 775(k)/775.305 [sic] of the Texas
Health and Safety Code is an unconstitutional infringement on
[the] ESDs' independent authority as a Special District
created under the Texas Constitution by allowing a separate
governmental authority to have control over the budget and
tax rate of the Districts. This is not found to exist
anywhere in the State of Texas.
5. Alternatively, Section 775(k)/775.305 of the Texas Health
and Safety Code is an unconstitutional infringement on [the]
ESDs' right to equal protection pursuant to the
Fourteenth Amendment to the United States Constitution.
ESDs plead for attorney's fees pursuant to Section 37.009
of the UDJA, and seek an injunction against the County to
preclude further "interference" regarding the
ESDs' budgets for fiscal year 2017-2018.
County's Plea to the Jurisdiction
August 14, 2017, the County filed its first plea to the
jurisdiction. It then filed an amended answer, plea to the
jurisdiction, and special exceptions to the ESDs'
Petition on February 21, 2019. The County argued that there
is no justiciable controversy because the ESDs' alleged
claims are moot, and attached evidence in support. The County
also argued that claims requesting statutory construction do
not waive the County's immunity under the UDJA.
ESDs filed a response on April 2, 2019. In their response,
the ESDs state that Section 37.006 of the UDJA requires that
all interested parties be named in the suit. Their response
does not address the issues raised by the County regarding
immunity or justiciability. Following a hearing on the