City of Pearsall v. Sergio Correa ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00331-CV
CITY OF PEARSALL,
Appellant
v.
Sergio CORREA,
Appellee
From the 218th Judicial District Court, Frio County, Texas
Trial Court No. 16-12-00464CVF
Honorable Russell Wilson, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: November 14, 2018
AFFIRMED
City of Pearsall appeals the trial court’s order denying its plea to the jurisdiction with regard
to Sergio Correa’s claim seeking a declaration that the City’s ordinance number 2012-12-179 is
invalid or unconstitutional. 1 We affirm the trial court’s order.
1
The trial court’s order granted the City’s plea to the jurisdiction as to six other claims, but that portion of the trial
court’s order is not challenged on appeal.
04-18-00331-CV
BACKGROUND
In 2012, the City passed ordinance number 2012-12-179 which allowed residents to own
and operate a gaming room with eight-liner machines so long as the owner paid an annual permit
application fee of $3,000.00 per game room, and an annual inspection permit fee of $1,800.00 per
machine. In September of 2016, the City seized forty-four eight-liner machines owned by Correa
claiming the seizure was authorized by the ordinance. On November 30, 2016, Correa sued the
City alleging numerous claims, including a claim seeking a declaration that the ordinance is
unconstitutional. The City filed a plea to the jurisdiction as to all of Correa’s claims. The trial
court granted the plea as to all claims except the claim seeking a declaration that the ordinance is
unconstitutional. The City appeals.
STANDARD OF REVIEW
We review a trial court’s ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of
Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the plea to the jurisdiction challenges the
pleadings, we liberally construe the pleadings to determine if the plaintiff “has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the plea to the jurisdiction challenges
the existence of jurisdictional facts, “we consider relevant evidence submitted by the parties to
determine if a fact issue exists.” Suarez v. City of Tex. City, 465 S.W.3d 623, 632–33 (Tex. 2015).
DISCUSSION
The City contends the trial court erred in denying its plea as to Correa’s declaratory
judgment claim. Correa responds the City’s immunity is waived under the Uniform Declaratory
Judgments Act (UDJA).
Section 37.004(a) of the UDJA allows a person “whose rights, status, or other legal
relations are affected by a … municipal ordinance … [to] have determined any question of …
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04-18-00331-CV
validity arising under the … ordinance … and obtain a declaration of rights, status, or other legal
relations thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). Section 37.006(b) further
provides, “In any proceeding that involves the validity of a municipal ordinance or franchise, the
municipality must be made a party and is entitled to be heard.” Id. § 37.006(b). The Texas
Supreme Court has expressly recognized the UDJA “waives a municipality’s immunity in a suit
that involves the validity of a municipal ordinance.” City of Dall. v. Albert, 354 S.W.3d 368, 378
(Tex. 2011); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) (“For
claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act
requires that the relevant governmental entities be made parties, and thereby waives immunity.”);
Turner v. Robinson, 534 S.W.3d 115, 127 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(noting UDJA “clearly and unambiguously waives the sovereign immunity of municipalities in
any declaratory-judgment action involving the validity of a municipal ordinance”); Porter v.
Montgomery Cty., No. 09-15-00459-CV, 2017 WL 629487, at *3 (Tex. App.—Beaumont Feb. 16,
2017, no pet.) (mem. op.) (noting “with respect to claims challenging the validity or
constitutionality of an ordinance or a statute, the Texas Supreme Court has recognized that the
Declaratory Judgments Act waives immunity”). In addition to the express authority provided by
the UDJA to bring a declaratory judgment action to determine any question regarding the validity
of an ordinance, the City’s ordinance in this case directly affects Correa’s right to own and operate
a gaming room with eight-liner machines; therefore, a justiciable controversy exists as to the
validity of the ordinance. See City of Austin v. Pendergrass, 18 S.W.3d 261, 264 (Tex. App.—
Austin 2000, no pet.); City of Schertz v. Parker, 754 S.W.2d 336, 338 (Tex. App.—San Antonio
1988, no writ); S. Nat’l Bank of Hous. v. City of Austin, 582 S.W.2d 229, 236-37 (Tex. Civ. App.—
Tyler 1979, writ ref’d n.r.e.).
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04-18-00331-CV
CONCLUSION
Because section 37.004(a) of the UDJA expressly authorizes Correa to seek a declaratory
judgment to determine the validity of the ordinance, and the City’s immunity is waived as to such
a claim, the trial court did not err in denying the City’s plea as to that claim. The trial court’s order
is affirmed.
Sandee Bryan Marion, Chief Justice
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