Chappell Hill Sausage Company v. John Durrenberger, in His Official Capacity as Washington County Judge Don Koester, Candice Bullock, Kirk Hanath, and Joy Fuchs, Each in His or Her Official Capacity as a Washington County Commissioner Ross McCall in His Official Capacity as Washington County Road and Bridge Department Engineer And Mark Marzahn in His Official Capacity as Washington County Floodplain Coordinator and Environmental Health Director ( 2021 )

Reversed and Memorandum Opinion filed June 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00897-CV
CHAPPELL HILL SAUSAGE COMPANY, Appellant
V.
JOHN DURRENBERGER, IN HIS OFFICIAL CAPACITY AS
WASHINGTON COUNTY JUDGE; DON KOESTER, CANDICE
BULLOCK, KIRK HANATH, AND JOY FUCHS, EACH IN HIS OR HER
OFFICIAL CAPACITY AS A WASHINGTON COUNTY
COMMISSIONER; ROSS MCCALL IN HIS OFFICIAL CAPACITY AS
WASHINGTON COUNTY ROAD AND BRIDGE DEPARTMENT
ENGINEER; AND MARK MARZAHN IN HIS OFFICIAL CAPACITY AS
WASHINGTON COUNTY FLOODPLAIN COORDINATOR AND
ENVIRONMENTAL HEALTH DIRECTOR, Appellees
On Appeal from the 335th District Court
Washington County, Texas
Trial Court Cause No. 36689
MEMORANDUM OPINION
Appellant Chappell Hill Sausage Company (the landowner) filed suit against
seven Washington County officials1 (county officials) in their official capacities for
their ultra-vires failures to maintain a culvert in a county road crossing its property,
as well as for not complying with provisions of the Water Code. The trial court
granted the county officials’ plea to the jurisdiction. In this interlocutory appeal,
the landowner argues that the trial court erred in dismissing its claim against the
county officials because the county officials are not protected by governmental
immunity from ultra-vires claims for prospective injunctive relief. We agree with
the landowner. However, subject-matter jurisdiction is a fundamental prerequisite
that cannot be waived and can be raised for the first time on appeal by the parties
or the court, and the landowner had the burden to demonstrate the subject-matter
jurisdiction of the trial court. Concluding that the landowner’s pleadings neither
affirmatively established the trial court’s jurisdiction nor conclusively negated the
trial court’s jurisdiction, we reverse the trial court’s order.
I. BACKGROUND
The landowner owns real property in Washington County, which it uses for
agricultural purposes. The landowner’s property is situated on the banks of New
Year Creek, a tributary of the Brazos River. Historically, rainfall in the area drains
off the land through a natural tributary into New Year Creek. A culvert installed
and maintained by the county allows the water to drain through this natural
tributary under a county road crossing the northern edge of the landowner’s
property. In 2014 and 2015, the area experienced unusual rainfall, which resulted
in standing water on the landowner’s property as well as on neighboring land. The
1
John Durrenberger, in his official capacity as Washington County Judge; Don Koester,
Candice Bullock, Kirk Hanath, and Joy Fuchs, each in his or her official capacity as a
Washington County Commissioner; Ross McCall in his official capacity as Washington County
Road and Bridge Department Engineer; and Mark Marzahn in his official capacity as
Washington County Floodplain Coordinator and Environmental Health Director.
2
landowner attributes the standing water to a blockage in the culvert or alternatively
to the county’s installation of a culvert with inadequate capacity. As a result of the
standing water, the landowner’s neighbor dug a trench which has caused
significant erosion to the landowner’s property.
In 2019, the landowner sued this neighbor for various tort claims.2 The
landowner also brought suit against the county officials seeking prospective
injunctive relief in the form of an injunction requiring the county officials to
maintain the culvert. Specifically, the landowner claimed the county officials
engaged in ultra-vires acts in violation of Water Code section 11.093(a), and
engaged in unauthorized diversion, impoundment, and use of surface water, as well
as the impairment of the landowner’s riparian rights. Tex. Water Code Ann.
§§ 11.093(a), .121. The county officials responded and filed a plea to the
jurisdiction, which was granted by the trial court. The landowner filed this
accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8).
II. ANALYSIS
A. Governmental immunity and ultra-vires claims
In Texas, sovereign immunity deprives a trial court of subject–matter
jurisdiction when the state or certain governmental units have been sued unless the
state consents to suit. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). Governmental immunity affords similar protection to
subdivisions of the state, such as counties, cities, and school districts. See Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (recognizing that
2
This neighbor was named as a defendant in the underlying lawsuit, but is not and cannot
be an appellee in this interlocutory appeal because the neighbor was not affected by the trial
court’s order granting the plea to the jurisdiction.
3
sovereign immunity and governmental immunity are distinct concepts although
courts often use the terms interchangeably). Immunity “shield[s] the public from
the costs and consequences of improvident actions of their governments.” Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).
Even if a governmental entity’s immunity has not been waived by the
legislature, a suit may be brought against a governmental official if the official
engages in ultra-vires conduct. Hall v. McRaven, 508 S.W.3d 232, 238 (Tex.
2017). A suit asserting that a government officer “acted without legal authority”
and seeking to compel the official “to comply with statutory or constitutional
provisions” is an ultra-vires suit. City of El Paso v. Heinrich, 284 S.W.3d 366, 372
(Tex. 2009). Those suits are not barred by governmental immunity because they
“do not attempt to exert control over the state.” Id. Ultra-vires suits do not seek to
alter government policy, but rather to enforce existing policy. Id.Ultra-vires claims depend on the scope of a public official’s authority.
McRaven, 508 S.W.3d at 234. Plaintiffs in ultra-vires suits must “allege, and
ultimately prove, that the officer acted without legal authority or failed to perform
a purely ministerial act.” Heinrich, 284 S.W.3d at 372. “Ministerial acts” are those
when “the law prescribes and defines the duties to be performed with such
precision and certainty as to leave nothing to the exercise of discretion or
judgment.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015)
(quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)).
Conversely, “discretionary acts” are those that “require the exercise of judgment
and personal deliberation.” Id.B. Standard of review
Standing is a prerequisite to subject-matter jurisdiction, and subject-matter
jurisdiction is essential to a court’s power to decide a case. Texas Ass’n of Bus. v.
4
Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). The absence of subject-
matter jurisdiction may be raised by a plea to the jurisdiction. Texas Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999) (per curiam). A plea to the
jurisdiction is a procedural vehicle used to challenge the court’s subject-matter
jurisdiction over a claim. Miranda, 133 S.W.3d at 232.
We review a plea challenging the trial court’s jurisdiction de novo. State v.
Holland, 221 S.W.3d 639, 642 (Tex. 2007). In reviewing a plea to the jurisdiction,
we do not consider the merits of the underlying claim; we consider only the
plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. See
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). When a plea to
the jurisdiction challenges the claimant’s pleadings, we determine whether the
claimant pleaded facts that affirmatively demonstrate the trial court’s jurisdiction,
construing the pleadings liberally and in favor of the claimant. Miranda, 133
S.W.3d at 226. If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
claimant should be afforded the opportunity to amend. Id. at 226–27. However, if
the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the claimant an opportunity to
amend. Id. at 227.
C. The landowner’s pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction
In their plea to the jurisdiction, the county officials do not address the merits
of the landowner’s ultra-vires claims. The county officials state that the
landowner’s claims are “in essence, a claim against Washington County, Texas, a
political subdivision of the State of Texas.” This is correct, though the supreme
5
court has confirmed that a plaintiff must bring ultra-vires claims against a
government official acting in his or her official capacity. Heinrich, 284 S.W.3d at
373. The landowner here properly brought its ultra-vires claims against the public
officials in their official capacities.
Despite the fact that the landowner did not plead any tort causes of action
against the county officials, the county officials state without supporting authority
that the landowner’s claims sound in tort. The county officials further argue that
the landowner did not establish a waiver under the Texas Tort Claims Act, nor did
the landowner provide the notice required by the Act. Tex. Civ. Prac. & Rem.
Code Ann. §§ 101.001–.109. Had the landowner asserted a premises-defect claim,
a negligence claim, or some other tort cause of action seeking monetary damages,
we would agree. However, the landowner did not assert any such claim against the
county officials.
Based on the live pleadings, the landowner has asserted ultra-vires claims
against the county officials which do not require a waiver of immunity under the
Texas Tort Claims Act. Though the plea to the jurisdiction incorrectly focuses on
the lack of waiver under the Act, we construe the county officials’ plea to the
jurisdiction as generally challenging the jurisdictional allegations in the live
pleadings. Miranda, 133 S.W.3d at 226. (“When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause.”). Our focus is
on whether the landowner carried its burden to show the trial court had
jurisdiction. See id. at 226–27; Rusk State Hosp. v. Black, 392 S.W.3d 88, 100
(Tex. 2012).
1. The landowner must demonstrate standing
In order for the trial court to have subject-matter jurisdiction, the landowner
6
must have standing. Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex.
2012) (“In Texas, the standing doctrine requires a concrete injury to the plaintiff
and a real controversy between the parties that will be resolved by the court.”).
Though the county officials do not raise this issue in their plea to the jurisdiction,
standing as a prerequisite for jurisdiction cannot be waived and may be raised for
the first time on appeal by the parties or the court. Texas Air Control Bd., 852
S.W.2d at 445–46. As described in Meyers v. JDC/Firethorne, Ltd., the test for
standing requires three elements: (1) the plaintiff must have suffered an injury;
(2) the alleged injury must be “fairly traceable” to the defendant’s conduct; and
(3) the plaintiff must show that there is substantial likelihood that the requested
relief will remedy the alleged injury.” 548 S.W.3d 477, 485 (Tex. 2018).
Whether a plaintiff has sufficiently pleaded that the requested remedy will
remedy the alleged injury can turn on whether the plaintiff has shown that the
defendant has authority to respond to any requested injunctive relief. Meyers, 548
S.W.3d at 487. The supreme court recently addressed a dispute between a land
developer and a county commissioner that is instructive here. Id. at 479. In Meyers,
the developer of a master-planned community sought injunctive relief preventing
one of the county commissioners from instructing the county engineering
department to delay or impede plat or construction plans submitted by the
developer. Id. at 482–83. Concluding that the commissioner lacked authority as a
single commissioner to present or approve a completed plat application, the court
held that the developer lacked standing to bring his claims against the
commissioner. Id. at 488. In explanation of its holding, the court stated “there is no
remedy the trial court could fashion against [the commissioner] that would afford
relief as to [developer’s] plat application.” Id. The court also noted that the
developer did seek relief against other governmental defendants who could remedy
7
its alleged injury. Id.
2. The landowner has not established standing
Not only must the landowner “allege, and ultimately prove, that the officer
acted without legal authority or failed to perform a purely ministerial act,” it must
also show its injury is traceable to each of the defendants’ conduct and that the
requested remedy has a substantial likelihood of addressing its injury. See
Heinrich, 284 S.W.3d at 372; Meyers, 548 S.W.3d at 485. The landowner directs
its ultra-vires claims against seven county officials: the county judge, all four
county commissioners elected to the Washington County Commissioners Court,
the Washington County road and bridge department engineer, and the Washington
County floodplain coordinator and environmental health director.3 Each of these
county officials has a distinct scope of authority.4 However, the landowner does
not address each county official’s scope of authority.
The landowner states simply that “Washington County is responsible for
maintaining the county road commonly known as Brazos River Lane.” And
3
We assume that all of the county officials are public officials. However, the parties do
not raise the issue, so we do not decide it. Tex. R. App. P. 47.1.
4
The county commissioners court has jurisdiction over all county business as conferred
by the constitution and law. Tex. Const. art. V, § 18(b); see Tex. Loc. Gov’t Code Ann.
§§ 81.001–.034. Each county has four commissioners on the commissioners court with the
county judge presiding over the county commissioners court. Tex. Const. art. V, § 18(b). The
Transportation Code places the responsibility for maintaining public roads with the county
commissioners court. Tex. Transp. Code Ann. § 251.003 (construction and maintenance of
public roads). The county commissioners are the supervisors of the public roads in a county
unless the county has adopted an optional system of administering the county roads under
Transportation Code chapter 252. Id. § 251.004. Neither party has addressed whether the trial
court took judicial notice of what method Washington County has adopted for administering the
county roads. See Tex. R. Evid. 204. However, the landowner has named as a defendant the
county road engineer, so it is possible that Washington County voters have adopted the county
road department system of subchapter D. Tex. Transp. Code Ann. §§ 252.301–.314. If that is the
case, then under a subchapter D county road department system, it is the county road engineer
who is responsible to commissioners court for the construction and maintenance of county roads,
with commissioners court as the policy-making body. Id. §§ 252.302(a), .309(a).
8
without any further detail, the landowner’s petition goes on to state that the Brazos
River Lane crosses over the natural tributary using a culvert, and the county
officials have acknowledged their obligation to maintain Brazos River Lane and
the culvert. The landowner does not attribute that acknowledgment to any
particular county official.
The landowner alleges three ultra-vires claims against the county officials in
its first amended petition. The first claim argues that the county officials had a
ministerial duty to maintain and repair the blocked culvert, and their failure to
maintain the culvert was in violation of the law. The claim asserts that the county
officials violated the Water Code by impounding, diverting, and wasting state
water without authorization (due to the blocked culvert). Tex. Water Code Ann.
§ 11.121. The landowner’s third claim further asserts the county officials have
caused and continue to cause the waste of state water in violation of the Water
Code (due to the blocked culvert). Tex. Water Code Ann. § 11.093(a). All of the
landowner’s allegations that the county officials acted without legal authority stem
from the alleged failure of the county officials to maintain the culvert on the
landowner’s property. The landowner does not explain who has a ministerial duty
to maintain the culvert or the public road that crosses the landowner’s property, nor
does he reference the law defining the duties to be performed “with such precision
and certainty as to leave nothing to the exercise of discretion or judgment.”
Emmett, 459 S.W.3d at 587. The landowner does not discuss the various duties or
scope of authority that any of the named county officials have under Texas law.
The only law cited by the landowner are the two sections of the Water Code cited
above; however, the landowner does not explain what responsibilities or duties any
of the county officials have with respect to the alleged Water Code violations. On
the record before us, we cannot determine which county official is responsible for
9
maintaining the road or culvert at issue or whether there is any overlapping
authority between the county officials. Therefore, we also cannot determine
whether the landowner’s alleged injury can be traced to any county official or
officials, whether there is a substantial likelihood that the requested relief will
remedy the alleged injury and whether the landowner has standing to sue each of
the county officials.
The landowner’s petition does not allege sufficient facts for this court to
determine whether the landowner has standing to assert claims against any of the
county officials and therefore whether there is subject-matter jurisdiction.5 We
conclude the landowner has not established that either its injury is “fairly
traceable” to any of the specific county officials or there is a likelihood that the
requested relief will remedy the alleged injury. When, as in this case, a plaintiff
fails to plead facts that establish jurisdiction, but the petition does not affirmatively
demonstrate incurable defects in jurisdiction, the plaintiff should be afforded the
opportunity to amend the insufficient pleadings. County of Cameron v. Brown,
80 S.W.3d 549, 555 (Tex. 2002).
D. The pleadings do not negate the existence of jurisdiction
The county officials do not make any arguments addressing the ultra-vires
claims and the basis for the plea to the jurisdiction does not establish the trial
court’s lack of subject-matter jurisdiction. Construing the landowner’s pleadings
liberally in its favor, we conclude the landowner’s petition does not demonstrate
that the trial-court case should be dismissed for want of jurisdiction. See Peek v.
5
We note that the landowner’s live pleading in the clerk’s record is the First Amended
Petition and Application for Permanent Injunction. Though the landowner has already had the
opportunity to amend its petition once, the landowner should have the opportunity to address the
jurisdictional defects identified in this opinion. See Tex. R. Civ. P. 63 (providing for liberal
amendment of pleadings); see also Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802,
804 (Tex. 1989).
10
Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989) (“Unless it is
clear from the pleadings that the court lacks jurisdiction . . . , it should retain the
case.”).
III. CONCLUSION
We sustain the landowner’s sole issue on appeal and reverse the
interlocutory order of the trial court granting the plea to the jurisdiction.6
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
6
Because this is an interlocutory appeal of the trial-court order granting the plea to the
jurisdiction, only that order is before this court—not the entire trial-court case. We do not
remand the case to the trial court because the case is not before us.
11