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El Paso County v. El Paso County Emergency Services District No. 1

Court of Appeals of Texas, Eighth District, El Paso

January 8, 2020


          Appeal from the 448th District Court of El Paso County, Texas (TC# 2016-DCV-4705)

          Before Alley, C.J., Rodriguez, and Palafox, JJ.



         El Paso 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 suit.

         We 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 dismissed.

         We reverse and render judgment for the County of El Paso.


         Conflict Between the ESDs and the County

         The 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.

         The 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[1] (hereafter "the Petition" or "the ESDs' Petition") was filed. It is the live pleading now at issue in this case.

         The ESDs' Petition

         The 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.

         What 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 "voided."

         The 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.

         The 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.

         The 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.

         In 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 rates.
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 of Texas.
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.

         The 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.

         The County's Plea to the Jurisdiction

         On 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.

         The 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 County's ...

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