Elizabeth C. Perez v. Sylvester Turner, Mayor, Karun Sreerama, Director of Public Works and Engineering, and the City of Houston ( 2022 )

Supreme Court of Texas
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No. 20-0382
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Elizabeth C. Perez,
Petitioner,
v.
Sylvester Turner, Mayor, Karun Sreerama, Director of Public
Works and Engineering, and the City of Houston,
Respondents
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On Petition for Review from the
Court of Appeals for the First District of Texas
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Argued March 22, 2022
JUSTICE BLACKLOCK delivered the opinion of the Court.
Plaintiff Elizabeth Perez filed this case in 2015 challenging the
City of Houston’s assessment, collection, and expenditure of a “drainage
fee.” Perez alleged that the ordinance authorizing the drainage fee was
invalid because the ordinance was premised on a faulty amendment to
the city charter. She sought a variety of relief for herself and a class of
similarly situated taxpayers, including a declaration of the drainage fee
ordinance’s invalidity, an injunction against the City’s collection of
drainage fees, and reimbursement of drainage fees already paid.
The nature of this case changed dramatically in November 2018,
while the case was on appeal. The City passed a new charter
amendment curing many of the defects Perez alleged in the drainage fee
ordinance. Although the parties’ briefing is less than clear about the
effect on this case of the 2018 charter amendment, Perez conceded at
oral argument that the passage of the new charter amendment
significantly truncated her original claims. As we construe what
remains of this case after the November 2018 amendment, Perez has
two ongoing claims—one for reimbursement of the drainage fees she
paid prior to 2018, and one for a narrow prospective injunction against
the future expenditure of fees collected prior to 2018. As explained
below, we affirm the lower courts’ dismissal of these claims, but we
remand the case to the district court to allow Perez to replead in light of
intervening events.
I.
In November 2010, voters in the City of Houston approved
“Proposition One,” which amended the City’s Charter to allow the City
to create a “Pay-As-You-Go” Dedicated Drainage and Street Renewal
(DDSR) Fund to pay for drainage projects. See Dacus v. Parker, 466
S.W.3d 820, 822 (Tex. 2015). The 2010 amendment (Charter
Amendment) included multiple funding sources for the DDSR Fund—
drainage fees assessed on real property, a fixed percentage of
property-tax revenue shifted from debt service to the Fund, federal
2
grants, and developer “impact fee” revenue. Perez and two other voters
filed an election contest challenging Proposition One’s adoption. See id.With the election contest pending, the City moved forward as
planned, enacting the Drainage Fee Ordinance (DFO) in April 2011.
The DFO created a new public utility, the Houston Drainage Utility
System. DFO § 47-803. The DFO required the City to (1) establish
drainage fees “against all real property in the city subject to such
charges” and (2) “provide drainage1 for all real property in the city on
payment of drainage charges unless the property is exempt.” Id.
§ 47-801. The DFO based the amount of drainage fees on the benefited
property’s type and square footage. Failure to pay drainage fees could
result in various penalties, including disruption of utility service and
late fees. Id. § 47-842.
Beginning in July 2011, the City collected drainage fees from
Perez and other property owners. Perez paid $11.38 per month in
drainage fees for her primary residence and $3.38 per month for
additional property she owned for a time. This fee was added to her
utility bill. Perez failed to pay her bill a few times, which resulted in a
1 The DFO defines “drainage” as:
streets, curbs, bridges, catch basins, channels, conduits, creeks,
culverts, detention ponds, ditches, draws, flumes, pipes, pumps,
sloughs, treatment works, and appurtenances to those items,
whether natural or artificial, or using force or gravity, that are
used to draw off surface water from land, carry the water away,
collect, store, or treat the water, or divert the water into natural
or artificial watercourses; drainage shall also mean the water so
transported.
DFO § 47-802, Definitions.
3
$1.13 drainage-fee penalty in addition to a separate penalty for
non-payment of other parts of the utility bill.
In 2015, we held in Dacus—the election contest challenging the
Charter Amendment—that Proposition One’s ballot language
misleadingly described the Charter Amendment, rendering the
Amendment invalid. We remanded that case to the district court for
further proceedings. Dacus, 466 S.W.3d at 828–29.
On June 17, 2015, a few days after our decision in Dacus, Perez
filed this lawsuit. Perez sought a declaration of the DFO’s invalidity, a
prospective injunction, and reimbursement of fees previously collected.
She also sought to represent a class of similarly situated taxpayers.
Perez’s amended petition alleges that the DFO charge, like the Charter
Amendment, is void given this Court’s decision in Dacus. Perez further
alleged that City Officials were acting ultra vires by using drainage fees
to pay for projects unrelated to drainage and by excluding the fees from
the City’s revenue and spending caps, which they lacked authority to do
without the recently invalidated Charter Amendment. Perez alleged
related state and federal constitutional claims and a claim under 42
U.S.C. § 1983.
The City filed a combined plea to the jurisdiction and motion for
summary judgment. After a hearing, the district court granted the plea
to the jurisdiction on all claims. The court held that Perez’s
constitutional claims premised on the Charter Amendment’s invalidity
were not ripe because Dacus was still pending when she filed her suit;
that Perez lacked standing to challenge the collection of drainage fees
under the Charter Amendment or the DFO because she had no
4
particularized injury; that she lacked standing to seek reimbursement
of her drainage fees; and that her ultra vires claims were insufficiently
pleaded and therefore barred by governmental immunity.
Perez appealed. The court of appeals affirmed. 629 S.W.3d 270(Tex. App.—Houston [1st Dist.] 2019). The court of appeals held that
Perez’s claims based on the Charter Amendment’s invalidity were not
ripe. Id. at 279–80. It further held that Perez had neither pleaded an
injury particular to her nor properly invoked taxpayer standing. Id. at
282–83. Having concluded Perez lacked standing, the court of appeals
affirmed the district court’s judgment without considering the other
issues presented by Perez’s appeal. Id. at 284. Perez petitioned for
review in this Court, and we granted the petition.
II.
In 2018, while Perez’s appeal was pending, the voters of Houston
approved a new charter amendment that lacks the infirmity identified
in Dacus. As a result, much of the case Perez originally pleaded has
been overtaken by events. Taking this development into account, we
construe Perez’s briefing in this Court to preserve two remaining
theories of liability: (1) a claim for reimbursement of the allegedly illegal
drainage fees paid between 2011 and 2018, see Dall. Cnty. Cmty. Coll.
Dist. v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005); and (2) an ultra vires
claim for prospective injunctive relief prohibiting City Officials from
spending any drainage fees collected between 2011 and 2018 that may
remain in the City’s accounts.2
2 The City argues that Perez abandoned her reimbursement claims,
directing this Court to Perez’s statement in her opening brief in the court of
5
The court of appeals affirmed the dismissal of all Perez’s claims
for lack of subject-matter jurisdiction, either on ripeness or standing
grounds.3 We begin with ripeness, an inquiry that focuses on whether a
case’s “facts are sufficiently developed ‘so that an injury has occurred or
is likely to occur, rather than being contingent or remote.’” Waco Indep.
Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000) (quoting Patterson
v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442
(Tex. 1998)).
The court of appeals held that all Perez’s claims premised on the
Charter Amendment’s invalidity were not ripe because no court had
finally adjudged the amendment invalid at the time Perez filed her suit.
See 629 S.W.3d at 279. Although this Court had already declared the
Charter Amendment invalid in Dacus, we had remanded that case to
the district court, so no judgment against the City was yet operative
when Perez sued. See Dacus, 466 S.W.3d at 829. And, as the court of
appeals saw it, “Any claims that the City or City officials acted
appeals that she was not seeking reimbursement for fees already spent.
However, Perez made this admittedly inartful statement in the course of
defending her standing to bring another claim, and examination of her entire
brief in the court of appeals reveals no intention to abandon her
reimbursement claim. The court of appeals seems not to have thought Perez’s
briefing abandoned her reimbursement claim, since its opinion addresses her
standing to bring that claim rather than resolving the claim on abandonment
grounds. See 629 S.W.3d at 281. We likewise do not read Perez’s court of
appeals briefing to abandon her reimbursement claim.
3 The City argues that Perez waived her ripeness arguments as to her
state and federal constitutional claims and claims under 42 U.S.C. § 1983.
Whether or not she did so at some earlier stage of the case, Perez makes no
attempt in this Court to revive those claims, which her briefing does not
address. As stated above, the only two claims remaining are for
reimbursement and for narrow prospective injunctive relief.
6
improperly in failing to recognize the invalidity of the Charter
Amendment before its invalidity was judicially determined were
premature at the time Perez filed this suit.” 629 S.W.3d at 279.
This approach to ripeness was error. Perez did not need a final
judgment in Dacus as a jurisdictional prerequisite to her claims
premised on the Charter Amendment’s invalidity. Ripeness asks
primarily whether the plaintiff has alleged a past injury or a likely
future injury, rather than a speculative, remote injury that may not
come to pass. See Patterson, 971 S.W.2d at 442. A claim of an
ordinance’s invalidity is ripe if the ordinance is currently injuring the
plaintiff, whether or not a court has already adjudged the ordinance
invalid. Many of Perez’s claims for relief were premised on the Charter
Amendment’s invalidity, but her injury was the assessment and
payment of drainage fees. The outcome of Dacus changed nothing about
the reality or imminence of that injury. To be sure, the outcome of Dacus
made it far easier for Perez to succeed in demonstrating the Charter
Amendment’s invalidity, but Dacus had nothing to do with the ripeness
of Perez’s claims. Whether Perez demonstrated the Charter
Amendment’s invalidity using a final judgment in Dacus, this Court’s
opinion in Dacus, or her own novel arguments, the Charter
Amendment’s invalidity was an element of her claims—not a
jurisdictional prerequisite that had to be established before she sued.4
4 Whether a court has already declared an action of the government
invalid may control the merits of a similar claim in another court, as a matter
of res judicata, for instance. It may even be a required element of the claim—
for example, if the claim required the plaintiff to show a violation of “clearly
established law.” But the outcome of ancillary litigation has nothing to do with
7
The court of appeals also held that Perez lacks standing to bring
her claims. See 629 S.W.3d at 281–84. Before delving into the standing
question, we must distinguish between Perez’s obligation to establish
standing and her obligation to overcome governmental immunity,
separate matters that the parties to some extent conflate. Although
both requirements implicate the courts’ jurisdiction, they are distinct
requirements that demand distinct showings. The City defends the
court of appeals’ decision that Perez lacks standing. It does so on two
grounds—(1) that she has not alleged a particularized injury, and
(2) that her pleadings do not establish the drainage fee’s invalidity. The
first point is a matter of standing. The second is not. As explained
below, the City is correct that Perez’s pleadings must adequately allege
the drainage fee’s invalidity, but any failure to do so means the City
retains governmental immunity, not that Perez lacks standing.
Generally, to establish standing, a plaintiff must plead a
particularized, concrete injury, distinct from that of the public, which
courts have the power to redress. Heckman v. Williamson County, 369
S.W.3d 137, 154–55 (Tex. 2012). We generally apply a test like the
federal test for standing:
First, the plaintiff must have suffered an “injury in fact”—
an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second,
there must be a causal connection between the injury and
the conduct complained of—the injury has to be
whether a plaintiff has a ripe claim that the government’s unlawful action is
causing her injury. There may be other bars to a plaintiff’s attempt to reach
back in time to impose consequences on the City for past actions the City did
not know would be declared illegal, but ripeness is not among them.
8
“fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent
action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that
the injury will be “redressed by a favorable decision.”
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
As we recently explained, “a plaintiff does not lack standing
simply because some other legal principle may prevent it from
prevailing on the merits; rather, a plaintiff lacks standing if its ‘claim of
injury is too slight for a court to afford redress.’” Data Foundry, Inc. v.
City of Austin, 620 S.W.3d 692, 696 (Tex. 2021) (quoting
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008)). The
threshold standing inquiry “in no way depends on the merits of the
[plaintiff’s] contention that particular conduct is illegal.” Id. (quoting
Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011)) (internal
quotation marks omitted).
Although a plaintiff’s standing does not depend on the merits of
his claim, a plaintiff suing the government may still be required to
demonstrate his claim’s potential validity at the pleading stage. Even if
a plaintiff has the concrete, particularized, and redressable injury
required for standing, sovereign or governmental immunity can still bar
a court from hearing the case. To defeat a plea to the jurisdiction based
on sovereign or governmental immunity, a plaintiff must plead facts
that, if true, establish a viable claim that is not barred by immunity.
Matzen v. McLane, __ S.W.3d __, 2021 WL 5977218, at *4 (Tex. Dec. 17,
2021) (“As we have said before, to defeat a plea to the jurisdiction, the
plaintiff suing the state or its officers must plead facts that, if true,
affirmatively demonstrate that sovereign immunity either does not
9
apply or has been waived.”) (citations omitted); NAACP of Austin, 345
S.W.3d at 11 (noting that “the Secretary retains immunity from suit
unless the voters have pleaded a viable claim”) (citations omitted).
If the plaintiff’s claim lacks merit even when taking the pleaded
facts as true, the pleading has not overcome the government’s immunity.
Matzen, 2021 WL 5977218, at *4; NAACP of Austin, 345 S.W.3d at 11.
Thus, when the government contends that a plaintiff has not adequately
pleaded a violation of law, it typically does so to rebut the plaintiff’s
attempt to overcome governmental immunity, not to show a lack of
standing. Standing, on the other hand—which looks to matters such as
injury, causation, and redressability—involves not the viability of the
pleaded claim but the nature of the injury alleged.
With these initial observations in mind, we turn to Perez’s
remaining claims. Again, we consider two claims to remain live: (1) a
claim for reimbursement of the allegedly illegal drainage fees paid
between 2011 and 2018; and (2) an ultra vires claim for prospective
injunctive relief prohibiting City Officials from spending any drainage
fees collected between 2011 and 2018 that may remain in the City’s
accounts. We consider first whether Perez has standing to pursue these
claims. We conclude that she does. We then consider whether she has
adequately pleaded these claims so as to overcome the City’s
governmental immunity. We conclude that she has not.
III.
A.
We begin with the threshold jurisdictional question of standing.
We first consider whether Perez has standing to bring a claim seeking
10
an injunction against the future expenditure of illegally collected
drainage fees. In general, regardless of the claim asserted, “a plaintiff
must show that he has suffered a particularized injury distinct from the
general public.” Andrade v. Venable, 372 S.W.3d 134, 137 (Tex. 2012)
(citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555–56 (Tex.
2000)). However, Texas law has long recognized an exception to this
particularity requirement for taxpayers seeking to “enjoin the illegal
expenditure of public funds.” Bland Indep. Sch. Dist., 34 S.W.3d at 556.
We have called such suits “drastic” and have required a plaintiff
pursuing one to “bring himself strictly within the established rules.”
Osborne v. Keith, 177 S.W.2d 198, 200 (Tex. 1944).
Properly construed, taxpayer standing “provides important
protection to the public from the illegal expenditure of public funds
without hampering too severely the workings of the government.”
Bland Indep. Sch. Dist., 34 S.W.3d at 556. Taxpayer standing is
generally limited to plaintiffs who can show “(1) that the plaintiff is a
taxpayer; and (2) that the public funds are being expended on an
allegedly illegal activity.” Williams v. Lara, 52 S.W.3d 171, 179 (Tex.
2001) (citation omitted). “A taxpayer does not have an interest direct
enough to warrant standing unless the activity challenged involves an
expenditure of public funds that would not otherwise be made.”
Andrade, 372 S.W.3d at 139.
In Jones v. Turner, we recently decided that taxpayer standing
applies when the allegation is that funds have been allocated illegally
toward otherwise lawful ends. __ S.W.3d __, 2022 WL 1815031, at *7
(Tex. June 3, 2022). In Jones, we did not require the plaintiff to allege
11
that the actions taken using the challenged funds are independently
illegal. Instead, the unlawful expenditure itself provided the “illegal
activity” required by our precedent. In deciding whether to afford
taxpayer standing, we asked whether “[t]he rationale underlying
taxpayer standing applies . . . : ‘protecting the public from the illegal
expenditure of public funds without hampering too severely the
workings of the government.’” Id. at *4 (quoting Bland Indep. Sch. Dist.,
34 S.W.3d at 556). We have also looked to whether or not “there
has . . . been a pecuniary injury to the taxpayers generally” such that
“the taxpayer’s interest is . . . direct enough for his suit to proceed.”
Andrade, 372 S.W.3d at 138. As explained below, we conclude that
Perez’s claim—which alleges that the drainage fee was altogether illegal
and seeks an injunction against the expenditure of the proceeds—is the
kind of claim to which “the rationale underlying taxpayer standing
applies.” Jones, 2022 WL 1815031, at *4.
To begin with, Perez alleges that she is a taxpayer, and the City
does not contend otherwise. Most of Perez’s claims for prospective relief
have been rendered moot by the 2018 charter amendment, which cured
the defects in the earlier Charter Amendment we considered in Dacus.
But Perez contends that she retains a narrow ultra vires claim for
prospective injunctive relief against the continued expenditure of
drainage fees illegally collected between 2011 and 2018.5
5 In Jones, we also recognized that taxpayer standing may be asserted
by a plaintiff who brings an ultra vires claim, assuming taxpayer standing’s
requirements are met. __ S.W.3d __, 2022 WL 1815031, at *4 (Tex. June 3,
2022).
12
The City characterizes Perez’s claim for injunctive relief against
expenditure of drainage fees as a challenge to the validity of the DFO.
Proceeding from this understanding of the claim, the City argues that
Perez must allege a particularized injury to have standing to challenge
the DFO. The City is correct that plaintiffs seeking the judicial
invalidation of a city ordinance generally must allege a particularized
injury. See Bland Indep. Sch. Dist., 34 S.W.3d at 555–56. But taxpayer
standing is an exception to the usual particularized injury requirement.
A taxpayer’s request for an injunction against the expenditure of an
illegally collected tax may or may not require the courts to decide
whether a city ordinance is valid. That alone does not tell us whether
taxpayer standing applies. Instead, we look to the gravamen of the
claim and to whether “[t]he rationale underlying taxpayer standing
applies” to such claims. Jones, 2022 WL 1815031, at *4. Here, it plainly
does.
Perez’s claim is that the drainage fee was an altogether unlawful
tax that resulted in the collection of millions of dollars that cannot be
lawfully spent for any purpose. No particular taxpayer has a unique
stake in such a claim, which alleges “a pecuniary injury to the taxpayers
generally.” Andrade, 372 S.W.3d at 138. Perez’s claim is narrowly
focused on the alleged illegality of a tax and does not seek to overturn
other policies or decisions of the City that happen to involve spending
money. Moreover, Perez alleges a “measurable, added expenditure” of
funds that she claims should never have been collected and therefore
cannot be spent; she does not challenge expenditures “that would have
been made in spite of” the alleged illegality. Id. (citation omitted).
13
Instead, the alleged illegality is the collection and expenditure of the
tax. As in Jones v. Turner, “we do not hold that a taxpayer has standing
to challenge every use (or nonuse) of taxpayer money of which he does
not approve.” 2022 WL 1815031, at *4. But when the allegation is that
the tax itself was unauthorized by law, a plaintiff who paid the tax may
rely on taxpayer standing when seeking an injunction against the
expenditure of the illegally collected funds.6
The City contends, and the court of appeals held, that Perez must
demonstrate the drainage fee’s illegality in order to establish her
standing as a taxpayer. We disagree. The key showing required by our
precedent on taxpayer standing is “that the public funds are being
expended on an allegedly illegal activity.” Williams, 52 S.W.3d at 179
(emphasis added). Here, there is no dispute that public funds are being
expended, and Perez has alleged that the expenditure is illegal. The
threshold dispute in cases like Williams and Andrade was whether the
challenged activity involved the expenditure of public funds at all. We
required the plaintiffs to show that measurable, significant public funds
that would not otherwise have been spent were truly at stake in order
to assert taxpayer standing. But we did not require the plaintiffs, as a
prerequisite to standing, to demonstrate that the allegedly illegal
activity was actually illegal. That merits-related inquiry is not a proper
6 We make no comment on the circumstances in which the proper
remedy for the past collection of illegal taxes is an injunction against future
expenditure of the proceeds. Nor do we address whether governmental
immunity might bar such a claim for one reason or another. We hold only that
Perez has standing, as a taxpayer, to assert her claim, whether or not she could
ultimately succeed.
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part of a standing analysis—although it may come into play at the
pleading stage when assessing governmental immunity, as explained
below.7 Perez has standing, as a taxpayer, to seek an injunction against
expenditures of allegedly illegal drainage fees.
Perez also has standing to bring her reimbursement claim. In
Garcia v. City of Willis, we held that a plaintiff had standing to seek
reimbursement of a fine because the plaintiff was “out the money he
paid to satisfy an allegedly unconstitutional fine.” 593 S.W.3d 201, 208
(Tex. 2019).8 Like Perez, the plaintiff in Garcia would have had to show
a local ordinance’s invalidity in order to succeed on his reimbursement
claim. See id. at 209. This did not affect the standing analysis, which
7 The City points to City of Arlington v. Scalf, 117 S.W.3d 345 (Tex.
App.—Fort Worth 2003, pet. denied), in support of its argument that Perez had
to show a particularized injury to bring any claim alleging the DFO’s
invalidity. In Scalf, the plaintiff challenged a city ordinance that imposed a
street maintenance fee, seeking injunctive relief and reimbursement of all fees
collected. Id. at 346. The court of appeals held that Scalf did not have standing
because he failed to allege any particularized injury caused by the ordinance.
Id. at 347–48. However, the court acknowledged the “long-standing exception”
to this general rule for taxpayers seeking to enjoin illegal expenditures. Id. at
347 n.1. The court did not hold that taxpayer standing was unavailable in all
cases challenging an ordinance’s validity, as the City contends. To the
contrary, the court held that Scalf could not invoke taxpayer standing because
he had not even alleged that the expenditure of the disputed funds was illegal.
Perez made such an allegation here.
8 As in Garcia, Perez’s reimbursement claim is alleged under Dallas
County Community College District v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005)
(stating that “a person who pays government fees and taxes under duress has
a valid claim for their repayment”). By holding that Perez’s payment of taxes
constitutes sufficient injury to confer standing to bring such a reimbursement
claim, we do not comment on the requirements of reimbursement claims under
Bolton or on whether Perez’s reimbursement claim satisfies those
requirements.
15
focused on the injury to the plaintiff, not whether the claim involved the
validity of an ordinance.
Similarly, the plaintiff in Garcia did not lack standing just
because no court had yet declared the disputed ordinance invalid. Like
Perez, Garcia sought to establish the ordinance’s invalidity as an
element of his reimbursement claim. We did not require him to show a
prior declaration of the ordinance’s invalidity just to have standing.
Instead, as with any other plaintiff, his standing turned on the nature
of his injury, and we found his personal payment of a fine to be sufficient
injury to confer standing to seek reimbursement. See id. at 208. In
Garcia, and here, the merits question of the ordinance’s invalidity was
not a matter of standing. To the extent the court of appeals suggested
that Perez lacked standing to assert a reimbursement claim because the
DFO had not yet been declared invalid by another court, this was error.
629 S.W.3d at 281.
Just as in Garcia, Perez is out the money she paid toward the
allegedly illegal fee. And the remedy she seeks—reimbursement—
would redress her injury. The injury is particular to her, and though
relatively small, it is sufficient to confer standing. See also Data
Foundry, 620 S.W.3d at 696 (holding that payment of charges assessed
by the government is sufficiently particularized injury to confer
standing to challenge the charges). Perez therefore has standing to
bring her reimbursement claim, irrespective of its merits.
We therefore reject the City’s argument that Perez lacks standing
to seek reimbursement unless she can show a particularized injury
beyond her payment of taxes. We do not comment on other potential
16
defects in Perez’s reimbursement claim, including whether she
adequately pleaded the duress required by our precedent. See Bolton,
185 S.W.3d at 877. But, on the preliminary question of Perez’s standing
to bring such a claim, her reimbursement claim focuses discretely on the
personal financial injury to her and seeks to redress it by getting her
money back. We can discern no standing defect in such a
straightforward claim, whether or not its success on the merits is
premised on an ordinance’s invalidity, and whether or not the claim may
suffer from other defects we do not address.
Perez’s reimbursement claim may nevertheless fail at the
pleading stage for other reasons, apart from standing, which we address
below. See, e.g., Garcia, 593 S.W.3d at 208, 210 (holding that Garcia
had standing to seek reimbursement of fines paid but that his claim did
not survive the city’s assertion of governmental immunity).
B.
We turn to the City’s assertion of governmental immunity. At the
pleading stage, “[a] plaintiff suing the [government] must plead facts
that, if true, affirmatively demonstrate that [governmental] immunity
either does not apply or has been waived.” Matzen, 2021 WL 5977218,
at *4 (citation omitted). This is because the government “retains
immunity from suit unless the [plaintiff] has pleaded a viable claim.”
NAACP of Austin, 345 S.W.3d at 11. We therefore assess whether either
of Perez’s two remaining claims, as we understand them, is viable as
pleaded.9
9 The City argues that Perez waived her ultra vires claim by failing to
brief it adequately in the court of appeals and here. However, her opening brief
17
Both Perez’s reimbursement claim and her claim for injunctive
relief are premised on the City’s alleged lack of authority to assess the
drainage fees.10 As Perez sees it, in the absence of the Charter
Amendment, the City Officials lacked authority to enact the DFO and
therefore lacked authority to charge the fees. The City disagrees,
arguing that it had home-rule authority apart from the Charter
Amendment to enact drainage ordinances and assess drainage fees. The
City is correct.
Houston is a home-rule city governed by a city charter.
Home-rule cities have “all the powers of the state not inconsistent with
in the court of appeals includes numerous references to her ultra vires claims.
While her discussion of them is scant in her briefing before this Court, it is
sufficient to preserve the claim. See Fort Worth Transp. Auth. v. Rodriguez,
547 S.W.3d 830, 849 (Tex. 2018) (stating even where “issue[s] w[ere] presented
only briefly,” including as a single sentence “in a footnote,” they were
nonetheless held to be “properly before [the Court]”).
10 Although we address governmental immunity’s application to these
two claims together, we note that the two claims employ two different theories
to defeat the City’s assertion of immunity. The reimbursement claim seeks to
proceed based on this Court’s recognition of “a narrow exception to immunity”
for taxpayer claims for reimbursement of taxes or fees paid under duress.
Garcia v. City of Willis, 593 S.W.3d 201, 209 (Tex. 2019) (citing Bolton, 185
S.W.3d at 876). By contrast, Perez’s claim for prospective injunctive relief
seeks to invoke the ultra vires exception to immunity. See Matzen v. McLane,
__ S.W.3d __, 2021 WL 5977218, at *4 (Tex. 2021) (“Plaintiffs who seek to
bypass sovereign immunity using an ultra vires claim must plead, and
ultimately prove, that the defendant government official ‘acted without legal
authority or failed to perform a ministerial act.’”) (quoting City of El Paso v.
Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). Under either theory, the
government retains immunity “unless the [plaintiff] has pleaded a viable
claim.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011). Because
we conclude that both claims are not viable for the same reason, we can dispose
of them together, and we need not further explore governmental immunity’s
application to them.
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the Constitution, the general laws, or the city’s charter.” Proctor v.
Andrews, 972 S.W.2d 729, 733 (Tex. 1998); see TEX. CONST. art. XI,
§ 5(a). Perez cites no authority for the proposition that the City of
Houston’s background, home-rule authority does not include the power
to address the city’s well-known drainage challenges and to assess taxes
or fees for that purpose. In other words, we do not understand Perez to
argue that the City cannot act with respect to drainage unless a state
statute specifically authorizes it to do so. Instead, Perez contends that
the City’s DFO impermissibly conflicts with a state statute called the
“Municipal Drainage Utility Systems Act” (MDUSA). The Legislature,
of course, may limit “the broad powers granted to home rule cities,”
although we have required such limitations to be stated with
“unmistakable clarity.” City of Sweetwater v. Geron, 380 S.W.2d 550,
552 (Tex. 1964). Perez’s contention is that MDUSA has the effect of
withdrawing from the City any home-rule authority the City would have
had to enact the DFO and assess the drainage fee. See TEX. LOC. GOV’T
CODE §§ 552.041–.054. We disagree.
Perez contends that the DFO’s broad definition of “drainage”
impermissibly authorizes the City to exceed the scope of the drainage
expenditures contemplated by MDUSA.11 But this attempt to use
11 In MDUSA, “‘Drainage’ means bridges, catch basins, channels,
conduits, creeks, culverts, detention ponds, ditches, draws, flumes, pipes,
pumps, sloughs, treatment works, and appurtenances to those items, whether
natural or artificial, or using force or gravity, that are used to draw off surface
water from land, carry the water away, collect, store, or treat the water, or
divert the water into natural or artificial watercourses.” TEX. LOC. GOV’T CODE
§ 552.044(3). In the DFO, “drainage” also includes “streets” and “curbs . . . that
are used to . . . divert [surface] water into natural or artificial watercourses.”
DFO § 47-802, Drainage.
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MDUSA to limit the City’s home-rule authority never gets out of the
starting gates. We need not parse the various provisions of MDUSA and
compare them to the DFO to know whether MDUSA constrains the
City’s authority with the unmistakable clarity our precedent requires.
Instead, MDUSA tells us—with unmistakable clarity—exactly what its
effect on the authority of home-rule cities is: None. MDUSA plainly
states that it does not “enhance or diminish the authority of a home-rule
municipality to establish a drainage utility” under its home-rule powers
or “preclude a municipality from imposing impact fees or other charges
for drainage authorized by law.” Id. § 552.054; see also Beck Steel, Inc.
v. City of Lubbock, No. 14-19-00060-CV, 2020 WL 4461277, at *5 (Tex.
App.—Houston [14th Dist.] Aug. 4, 2020, no pet.) (holding that
home-rule cities’ drainage ordinances may add to MDUSA’s terms).
MDUSA could hardly state its non-preemptive effect any more
clearly. Perez cannot allege a valid reimbursement claim or a valid ultra
vires claim to the extent these claims are premised on her contention
that the drainage fee’s illegality stems from a conflict with MDUSA.
Even so, while the City had home-rule authority to enact the
drainage ordinance without the Charter Amendment, it did not have
authority to exceed its charter’s revenue or spending caps without the
Charter Amendment. If collection or expenditure of the fee in a given
year between 2011 and 2018 caused the City to exceed its revenue or
spending caps, then Perez conceivably could establish the fee’s illegality
irrespective of MDUSA.
However, Perez does not argue this theory of the drainage fee’s
invalidity to this Court. She focuses entirely on the alleged conflict with
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MDUSA, which is immaterial given MDUSA’s explicit disclaimer
against preemption. We will not reverse the dismissal of Perez’s claims
under a legal theory not advanced in this Court. Both of Perez’s
remaining claims required her to articulate a viable theory of the DFO’s
illegality in order to overcome the City’s governmental immunity.
Because the only theory she has advanced in this Court fails as a matter
of law, we affirm the dismissal of her claims.12
IV.
The court of appeals erred by dismissing some of Perez’s claims
as unripe and by dismissing others for lack of standing. 629 S.W.3d at
279, 284. Nevertheless, we affirm the dismissal of Perez’s claims
because we agree with the court of appeals that Perez has advanced no
viable theory under which the disputed drainage fee exceeded the City’s
authority.
Several years have passed since Perez’s most recent amended
pleading in 2016. Given the passage of time and the intervening events
bearing significantly on Perez’s original claims, we conclude she should
have the opportunity to replead on remand. See Tex. Dep’t of Transp. v.
Sefzik, 355 S.W.3d 618, 623 (Tex. 2011). Although dismissal of all her
claims was not erroneous, we cannot say that “[t]he allegations found in
the pleadings . . . affirmatively . . . negate the court’s jurisdiction.” City
of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). As a result, “the
plaintiff should be given an opportunity to amend the pleadings.” Id.12 Because we conclude dismissal of Perez’s remaining claims was
proper on this basis, we need not address the City’s many other objections to
Perez’s claims.
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The court of appeals’ judgment of dismissal is affirmed, but that
judgment is reversed in part to the extent it denied Perez the
opportunity to replead.
James D. Blacklock
Justice
OPINION DELIVERED: June 10, 2022
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