COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00171-CV
THE TOWN OF ANNETTA SOUTH, APPELLANTS/APPELLEES
TEXAS; GERHARD
KLEINSCHMIDT; JAMES
ABLOWICH; PHILLIP KUNTZ; AND
DAVID GOOLSBY
V.
SEADRIFT DEVELOPMENT, L.P. APPELLEE/APPELLANT
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV11-0220
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OPINION1
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1
The undersigned became author of this majority opinion on August 12,
2014.
I. INTRODUCTION
The primary issue in this appeal is whether Appellant The Town of Annetta
South’s Ordinance 011—which requires that all lots within the Town’s
extraterritorial jurisdiction (ETJ) must be at least two acres in size—violates
Texas Local Government Code section 212.003(a)(4). See Tex. Loc. Gov’t Code
Ann. § 212.003(a) (West 2008); Annetta South, Tex., Ordinance 011 (Sept. 12,
1985). The trial court found that it did and granted a partial summary judgment
for Appellee Seadrift Development, L.P. specifically on this ground. For the
reasons set forth below, we will affirm the trial court’s partial summary judgment
for Seadrift.
II. PROCEDURAL AND FACTUAL BACKGROUND
Seadrift brought a declaratory judgment action and a request for
mandamus relief against the Town after the Town denied Seadrift’s preliminary
subdivision plat for an approximately 106-acre tract. A large portion of Seadrift’s
platted subdivision was located in the ninety-five acres of the Town’s ETJ. While
Seadrift’s proposed subdivision lots within the Town’s boundaries were two acres
in size, the lots in the Town’s ETJ were not.
At the time of Seadrift’s plat application, the only Town ordinance
provisions addressing density in the Town’s ETJ were located in Town Ordinance
011. Ordinance 011 contains a provision requiring that all lots in the Town’s ETJ
be at least two acres in size. After the Town denied Seadrift’s subdivision plat,
Seadrift requested that the Town certify the reasons for the Town’s denial. See
2
Tex. Loc. Gov’t Code Ann. § 212.009(e) (West 2008) (providing that a municipal
authority responsible for approving plats shall certify the reasons for the action
taken on a plat application upon request of the land owner). The Town
responded, certifying that the reason for its denial of Seadrift’s plat was that “the
density of this development is excessive.” After receiving this certification,
Seadrift filed suit against the Town seeking a declaratory judgment that
Ordinance 011’s provision requiring that all lots within the Town’s ETJ must be at
least two acres in size violates Texas Local Government Code section
212.003(a)(4). See id. § 212.003(a)(4). Seadrift also sought a writ of mandamus
to compel the Town to engage in the ministerial act of approving the subdivision
plat.
The parties filed competing motions for summary judgment on the issue of
whether the provision in the Town’s Ordinance 011 that required all lots in the
Town’s ETJ to be at least two acres in size violated Texas Local Government
Code section 212.003(a)(4). See id. The trial court granted Seadrift’s motion for
partial summary judgment on its declaratory judgment claim but denied all other
relief, including Seadrift’s request for a mandamus, and denied the Town’s
motion for summary judgment. The Town perfected this appeal, raising three
issues.
Seadrift filed a cross-appeal in this court, asserting that not only should we
affirm the trial court’s partial summary judgment for Seadrift on its declaratory
judgment claim but also that we should reverse and render judgment for Seadrift
3
on its request for mandamus relief because the Town possessed a ministerial
duty to approve Seadrift’s preliminary plat.
III. STANDARDS OF REVIEW
A. Statutory Construction
Courts use the same rules to construe statutes and to construe municipal
ordinances. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424,
430 (Tex. 2002). Thus, our objective in construing the Town’s Ordinance 011 is
to discern the Town’s intent, and our objective in construing local government
code section 212.003(a) is to discern the legislature’s intent. See id. (citing
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.
1999)). In making this determination, we look first to the plain meaning of the
words of the provisions, using any definitions provided. Tex. Mut. Ins. Co. v.
Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). In giving effect to the statute or
ordinance as a whole, we should not assign a meaning to a provision that would
be inconsistent with other provisions of the statute or ordinance. See Wende, 92
S.W.3d at 430.
Statutes and ordinances in derogation of the common law are strictly
construed. Tex. Co. v. Grant, 182 S.W.2d 996, 1000 (Tex. 1944); accord 3
Sutherland Statutes and Statutory Construction § 61:1 (7th ed.) (“Statutes in
derogation of a property owner’s right at common law to build what she pleases
upon her own property must be strictly construed in favor of the owner.”).
Because a municipality possesses authority to regulate land development in its
4
ETJ only to the extent it is legislatively granted that authority, legislatively-created
express limitations to that grant of authority—such as local government code
section 212.003—are construed strictly against the authority of the municipality
and in favor of the land owner. See Tex. Loc. Gov’t Code Ann. § 212.003; 3
Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative
grant of authority must be construed, whenever possible, so that it is no broader
than that which the separation of powers permits.”).
When reviewing the validity of a city ordinance, we begin with the
presumption that the ordinance is valid. City of Brookside Village v. Comeau,
633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087 (1982); RCI Entm’t, Inc.
v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App.—San Antonio 2012, no
pet.). The party challenging the ordinance bears the burden to establish its
invalidity. RCI Entm’t, 373 S.W.3d at 595. An ordinance that attempts to
regulate a subject matter preempted by a state statute is unenforceable to the
extent it conflicts with a state statute. Dallas Merchant’s & Concessionaire’s
Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993).
B. Summary Judgment
We review a trial court’s summary judgment de novo. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004); City of San Antonio v.
En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex. App.—San Antonio 2007, no pet.).
When reviewing a summary judgment, we take as true all evidence favorable to
the nonmovant, and we indulge every reasonable inference and resolve any
5
doubts in the nonmovant’s favor. Joe, 145 S.W.3d at 156–57; En Seguido, 227
S.W.3d at 240. The party moving for a “traditional” summary judgment bears the
burden to show that no genuine issue of material fact exists and that it is entitled
to judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En Seguido, 227
S.W.3d at 240; Tex. R. Civ. P. 166a(c).
IV. THE TOWN’S FIRST ISSUE: DOES ORDINANCE 011 VIOLATE LOCAL GOVERNMENT
CODE SECTION 212.003?
In its first issue, the Town contends that Ordinance 011’s two-acre-
minimum-lot-size subdivision rule is not equivalent to a restriction on the number
of residential units that can be built per acre as prohibited by Texas Local
Government Code section 212.003(a)(4). Accordingly, the Town argues that the
trial court erred by granting partial summary judgment for Seadrift on this basis.
A. The Town’s Powers to Regulate in Its Extraterritorial Jurisdiction
A city’s authority to regulate land development in its ETJ is wholly derived
from a legislative grant of authority. FM Props. Operating Co. v. City of Austin,
22 S.W.3d 868, 902 (Tex. 2000); accord Ex parte Ernest, 136 S.W.2d 595, 597
(Tex. Crim. App. 1939) (“As a general rule a municipal corporation’s powers
cease at municipal boundaries and cannot, without plain manifestation of
legislative intention, be exercised beyond its limits.”). If no municipal ordinances
are legislatively authorized to be extended to a municipality’s ETJ, then only
county land-use regulations apply. FM Props. Operating Co., 22 S.W.3d at 876,
902. A city is authorized to apply municipal ordinances “governing plats and
6
subdivisions of land . . . to promote the health, safety, morals, or general welfare
of the municipality and the safe, orderly, and healthful development of the
municipality” to property within its ETJ. See Tex. Loc. Gov’t Code Ann.
§§ 212.002, .003 (West 2008). The municipality is also authorized to apply in its
ETJ other city ordinances relating to access to public roads or the pumping,
extraction, and use of groundwater by persons other than retail public utilities. Id.
§ 212.003(a). But, unless otherwise authorized by state law, a municipality “shall
not regulate” the following within the municipality’s ETJ:
(1) the use of any building or property for business, industrial,
residential, or other purposes;
(2) the bulk, height, or number of buildings constructed on a
particular tract of land;
(3) the size of a building that can be constructed on a
particular tract of land;
(4) the number of residential units that can be built per acre of
land; or
(5) the size, type, or method of construction of a water or
wastewater facility that can be constructed to serve a developed
tract of land if [certain other facts apply].
Id. § 212.003(a)(1)–(5). The purpose of these restrictions on a municipality’s
authority to impose regulations on land in the municipality’s ETJ is to prohibit the
municipality’s extension of zoning ordinances into its ETJ under the guise of
cleverly drafted rules “governing plats and subdivision of land.” See id.
7
§ 212.002; Quick v. City of Austin, 7 S.W.3d 109, 121 (Tex. 1998) (noting section
212.003 prohibits the application of zoning regulations in ETJ areas).2
B. Statutory Construction Analysis Establishes That Ordinance 011
Violates Texas Local Government Code Section 212.003(a)(4)
In its first issue, the Town argues:
A minimum lot size only regulates how small a resulting lot
can be. It does not expressly mandate the number of residential
units that can be built on the resulting lots and thus, does not
regulate how many residential units can be placed on an acre of
land. A resulting two-acre lot can logically be the site for one or
multiple duplexes, triplexes or apartment buildings and thus, can
contain one, twenty, or more residential units. The same is true of a
0.2-acre lot. The restriction in the Annetta South’s ordinance is on
the size of lots, not number of residences per acre.
....
. . . In this case, lot size could have some impact [on] the
resulting number of residential units per acre, but that is not the
specific characteristic that the law proscribes.
1. Ordinance 011
Turning to the language of the ordinance at issue, Ordinance 011 defines a
“lot” as
2
The Town cites the legislative history of section 212.003, compares
section 212.003 to the zoning powers granted in chapter 211 of the local
government code, and argues that the section 212.003 language relied upon by
Seadrift to challenge Ordinance 011’s lot-size restriction was only intended to
prevent zoning regulations from being applied in the ETJ. But in construing a
statute, we look to the plain meaning of the words chosen by the legislature and
do not consider extrinsic aids unless the statute is ambiguous. Combs v. Roark
Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013). As set forth
below, giving the words of section 212.003(a)(4) their plain meaning, the statute
is not ambiguous; thus, we do not consider extrinsic aids.
8
[a]n undivided tract or parcel of land, no less than two (2)
acres, having frontage on a public street and which is, or in the
future may be offered for sale, conveyance, transfer or improvement;
which is designated as a distinct and separate tract, and which is
identified by a tract or lot number or symbol in a duly approved
subdivision plat which has been properly filed.
Annetta South, Tex., Ordinance 011 (emphasis added). Based on the plain
meaning of the above language of Ordinance 011, it is undisputed that it
mandates that lots within the Town’s ETJ must be at least two acres in size.
We are required to give the words used in Ordinance 011 their defined
meaning, if one exists. See, e.g., Tex. Mut. Ins. Co., 381 S.W.3d at 452.
“Subdivision” is defined in Ordinance 011 as “[t]he division of any tract of land
[situated within the Town or its ETJ] into two or more parts for the purpose of . . .
laying out suburban lots or building lots, or any lots . . . intended for public use or
the use of purchasers.” Annetta South, Tex., Ordinance 011. Thus, if the owner
of a two-acre lot in the Town’s ETJ wants to divide his lot into two or more parts
to sell a part of it, the lot is a tract of land located in the Town’s ETJ that meets
the ordinance’s definition of “subdivision” because the division of the tract of land
is for the purpose of laying out lots offered for sale and is intended for the use of
purchasers. Approval of any re-subdivision of a two-acre lot, however, would not
be granted due to Ordinance 011’s two-acre minimum lot size.3 Therefore,
3
The Town’s summary judgment response asserts that Seadrift “seems to
want the court to ignore the fact that the [Town] has adopted a new ordinance
which is [in] evidence and which would be available to such resubdividers which
does not require two[-]acre minimums.” But the new ordinance referenced by the
Town does continue to require two-acre lots; it simply provides that variances
9
applying the definitions of “lot” and “subdivision” that are provided in Ordinance
011, it is undisputed that Ordinance 011 prohibits the owner of a two-acre lot in
the Town’s ETJ from dividing the two-acre lot into a less than two-acre parcel of
land and selling it. Accord City of Weslaco v. Carpenter, 694 S.W.2d 601, 602–
04 (Tex. App.––Corpus Christi 1985, writ ref’d n.r.e.) (construing this same
definition of “subdivision” as used in City of Weslaco’s ordinance addressing
minimum standards—other than lot size—and licensing requirements for mobile
home and/or recreational vehicle parks in city’s ETJ). Through this circuitous
definitional loop created by Ordinance 011—definitions that we are required to
apply in construing the ordinance—although multiple duplexes, triplexes, and
apartment complexes may technically be built on a single two-acre lot in the
Town’s ETJ, they can never be individually sold. The result is that the entirety of
each two-acre lot is required to share common ownership; under Ordinance 011,
parcels of land on which duplexes, triplexes, or apartment complexes are built
within a two-acre lot are incapable of ownership different than the ownership of
the entire two-acre lot.
2. Section 212.003(a)(4)
The next issue is whether the regulation imposed in the Town’s ETJ by the
circuitous definitional loop contained in Ordinance 011 violates section
may be sought—but not necessarily granted—from such minimums. And the
existence of a new ordinance does not alter an analysis of whether Ordinance
011 violates local government code section 212.003(a)(4).
10
212.003(a)(4). See Tex. Loc. Gov’t Code Ann. § 212.003(a)(4) (“[I]n its
extraterritorial jurisdiction a municipality shall not regulate . . . (4) the number of
residential units that can be built per acre of land.”). Again, we must give the
language of section 212.003 its plain meaning; we discern the intent of the
legislature by the plain meaning of the words it chose to use. See Tex. Mut. Ins.
Co., 381 S.W.3d at 452. In section 212.003(a)(4), the legislature chose to use
the mandatory words “shall not regulate,” expressly limiting the grant of authority
given to municipalities to extend rules governing plats and subdivisions into its
ETJ. The plain meaning of “shall not” imposes a prohibition. See Tex. Gov’t
Code Ann. § 311.016(5) (West 2013); accord Fuentes v. Howard, 423 S.W.2d
420, 423 (Tex. Civ. App.––El Paso 1967, writ dism’d) (construing “shall not” in a
statute as mandatory, however innocent the violation of the statute). And
although “regulate” is not defined in the statute, its most common dictionary
meaning is “to control or supervise by means of rules and regulations.” See
Oxford Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/regulate?q=reg
ulate; see also Webster’s Third New International Dictionary 1913 (2002)
(defining “regulate” as “to govern or direct according to rule”). Thus, giving
section 212.003(a)(4) its plain meaning, the legislature intended to impose a
mandatory duty on municipalities to refrain from controlling or directing in a
municipality’s ETJ—whether explicitly or implicitly—the number of residential
units built per acre.
11
3. Ordinance 011 Violates Section 212.003(a)(4)
The Town essentially concedes that Ordinance 011’s two-acre lot size
requirement could have some impact on the resulting number of residential units
per acre. But the Town claims that the number of residential units that can be
built per acre is not the specific characteristic that Ordinance 011 proscribes.
Contrary to the plain meaning of “regulate” as used in section 212.003(a)(4), the
Town gives an overly narrow meaning to the word, equating “regulate” with
“specifically proscribing.” Using the ordinary meaning of the term “regulate,” it is
clear that Ordinance 011 does control or “regulate” the number of residential
units that can be built per acre on land within the Town’s ETJ. See Tex. Att’y
Gen. Op. No. GA-0648 (2008) (“The Bulverde Ordinance provisions repeatedly
refer to density and also establish residential lot size limits. . . . Thus, the
ordinance provisions appear on their face to be inconsistent with Local
Government Code section 212.003(a)(1)-(4).”).4
Moreover, the summary-judgment evidence establishes that, by extending
Ordinance 011 into its ETJ, the Town in fact intended to regulate the number of
residential units built per acre in its ETJ. As Seadrift points out, there are 43,560
4
The Town’s reliance on Quick as justification for Ordinance 011 is
misplaced. See 7 S.W.3d at 121. Quick dealt with an ordinance involving water
control measures; section 212.003 expressly authorizes a municipality to extend
such ordinances to its ETJ. See id.; see also Tex. Loc. Gov’t Code Ann.
§ 212.003(a).
12
square feet in an acre, and while the Town denied Seadrift’s preliminary plat that
would have provided for one home on each of eight 11,000-square-foot lots, the
Town claims that Seadrift’s preliminary plat would have complied with Ordinance
011 if only Seadrift would have platted eight homes on an 88,000-square-foot (a
little more than two acres) lot. Seadrift points out that both scenarios would
impose the same infrastructure and utility needs; eight homes on an 88,000-
square-foot lot (supposedly not prohibited by Ordinance 011) require the exact
same water, sewer, electricity, and gas infrastructure as eight homes all built on
eight 11,000-square-foot lots (prohibited by Ordinance 011). Thus, Seadrift
contends that Ordinance 011 is and was intended to be exactly the type of
regulation prohibited by section 212.003(a)(4)—an implicit extension of the
Town’s zoning-density ordinances into its ETJ under the guise of cleverly drafted
rules governing plats and subdivision of land. See Tex. Loc. Gov’t Code Ann.
§ 212.002; Quick, 7 S.W.3d at 121 (noting that section 212.003 prohibits the
application of zoning regulations in ETJ areas); accord S. Crushed Concrete,
LLC v. City of Houston, 398 S.W.3d 676, 679 (Tex. 2013) (holding city ordinance
invalid because it conflicted with statutory provision).
Finally, if any question remains that Ordinance 011 violates section
212.003(a)(4), we are required to construe section 212.003(a)(4) against the
authority of the Town to regulate within its ETJ both because section 212.003 is
an express limitation on the authority granted to municipalities to regulate within
13
ETJs and because any regulation of land use5 is in derogation of the common
law. See Thomas v. Zoning Bd. of Adjustment, 241 S.W.2d 955, 957 (Tex. Civ.
App.—Eastland 1951, no writ); accord Bryan v. Darlington, 207 S.W.2d 681, 683
(Tex. Civ. App.––San Antonio 1947, writ ref’d n.r.e.) (“All restrictions of the free
use of land are in derogation of the common law right to use land for all lawful
purposes that go with the title and possession, and are to be construed strictly
against the person creating or attempting to enforce such restrictions.”); 3
Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative
grant of authority must be construed, whenever possible, so that it is no broader
than that which the separation of powers permits.”).
Because Ordinance 011 violates section 212.003(a)(4), we overrule the
Town’s first issue.
V. THE TOWN’S SECOND ISSUE: DOES THE SUMMARY-JUDGMENT EVIDENCE
ESTABLISH THAT SEADRIFT’S PRELIMINARY PLAT WAS DENIED BASED ON A
VIOLATION OF ORDINANCE 011’S TWO-ACRE LOT-SIZE REQUIREMENT
5
The Town claims that Ordinance 011’s two-acre restriction is not a
regulation of land use but only a regulation of lot size. This is a distinction
without a difference under the present facts. Seadrift wants to use its land
located in the Town’s ETJ by dividing it into less than two-acre tracts and by
building one single family residential unit on each lot; the Town relies on
Ordinance 011’s two-acre lot-size requirement to prohibit this use. Accord Ferris
v. City of Austin, 150 S.W.3d 514, 516 (Tex. App.––Austin 2004, no pet.)
(recognizing ordinance’s lot-size restriction was effectively a land-use restriction
because, although single-family residential unit could have been built on tract,
tract could not be subdivided into lots large enough to meet ordinance’s
condominium lot-size restriction, and owner wanted to build condominiums).
14
In its second issue, the Town argues that “there was no evidence or
conflicting evidence” that the reason for the Town’s denial of Seadrift’s
preliminary plat was because of the less than two-acre lot size of lots within
Town’s ETJ. The Town does not contend that it conclusively established any
specific alternative reason for its denial of Seadrift’s preliminary plat; the Town
merely argues that Seadrift failed to conclusively establish the two-acre lot-size
subdivision rule was the reason.
In support of its motion for partial summary judgment, Seadrift attached
summary-judgment evidence that the Town voted to deny Seadrift’s preliminary
plat on November 18, 2010. When Seadrift requested, per Texas Local
Government Code section 212.009(e), that the Town certify the basis for its
denial, the Town’s Mayor dictated a letter to Seadrift identifying the density of
Seadrift’s proposed development as the sole basis for the denial of Seadrift’s
preliminary plat. See Tex. Loc. Gov’t Code Ann. § 212.009(e). Several of the
Town’s city council members also testified to this fact in their depositions. And
an October 29, 2010 letter from the Town’s engineer to Seadrift’s engineer
indicated that the only way in which Seadrift’s preliminary plat did not comply with
Ordinance 011 was the plat’s lot size.
Thus, although the Town urges on appeal that Seadrift’s plat failed to
conform with other requirements necessary for its approval—and this may or
may not be true—viewing the summary-judgment evidence in the light most
favorable to the Town, it conclusively establishes that the Town’s sole reason for
15
the denial of Seadrift’s preliminary plat was “density”; that is, a violation of
Ordinance 011’s two-acre lot-size restriction. The Town did not offer
controverting summary-judgment evidence in the trial court establishing that it
denied Seadrift’s preliminary plat for any other reason.
We overrule the Town’s second issue.
VI. THE TOWN’S THIRD ISSUE: ATTORNEY’S FEES;
SEADRIFT’S CROSS-APPEAL ISSUE: MANDAMUS RELIEF
In its third issue, the Town complains that the trial court erred by awarding
Seadrift attorney’s fees because, according to the Town, Seadrift impermissibly
utilized the Declaratory Judgments Act solely as a vehicle to obtain attorney’s
fees.6 According to the Town, Seadrift was required to prove that Ordinance
011’s lot-size restriction was unenforceable in order to obtain the mandamus
relief Seadrift sought so that Seadrift’s declaratory judgment action was
unnecessary and served no purpose other than being a mechanism for attorney’s
fees. That is, the Town contends that Seadrift’s primary cause of action was for
mandamus and that Seadrift’s declaratory judgment action was simply an add-
on, addressing issues already pending before the trial court.
It its cross-appeal, Seadrift argues that the trial court erred by denying its
request for mandamus relief after Seadrift established via its declaratory
judgment action that Ordinance 011’s two-acre lot-size provision was
6
The Town does not challenge the reasonableness of or necessity for the
amount of the attorney’s fees awarded to Seadrift.
16
unenforceable as violative of local government code section 212.003(a)(4).
According to Seadrift, at this point, the Town’s approval of the preliminary plat
became a ministerial duty. See Tex. Loc. Gov’t Code Ann. § 212.005 (West
2008) (providing that the municipal authority responsible for approving plats must
approve a plat or replat that is required to be prepared under this subchapter and
that satisfies all applicable regulations). Consequently, via its cross-appeal,
Seadrift requests that this court issue a writ of mandamus ordering the Town to
approve Seadrift’s preliminary plat.
We address these two issues together because they are somewhat
interrelated. It is well settled that the validity of an ordinance may be challenged
through a declaratory judgment action. See, e.g., City of San Antonio v. Greater
San Antonio Builders Ass’n, 419 S.W.3d 597, 599–605 (Tex. App.—San Antonio
2013, pet. denied) (affirming trial court’s declaratory judgment declaring
ordinance invalid). It is likewise well settled that a trial court may award
attorney’s fees in a declaratory judgment action. See, e.g., Tex. Civ. Prac. &
Rem. Code Ann. § 37.009 (West 2008); Bocquet v. Herring, 972 S.W.2d 19, 20–
21 (Tex. 1998); Greater San Antonio Builders Ass’n, 419 S.W.3d at 605
(affirming award of attorney’s fees to prevailing party after trial court declared
ordinance invalid). Thus, the issue is whether Seadrift’s mandamus action
somehow altered the application of these two well-settled rules.
It is true, as the Town contends, that a claim may not simply be repleaded
as a declaratory judgment claim in order to justify an award of attorney’s fees.
17
See, e.g., MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 670
(Tex. 2009). Instead, the Declaratory Judgments Act is “intended as a speedy
and effective remedy” for settling disputes before substantial damages are
incurred and is “intended to provide a remedy that is simpler and less harsh than
coercive relief, if it appears that a declaration might terminate the potential
controversy.” Id.
Here, Seadrift’s pleaded mandamus cause of action was conditioned on
the trial court’s declaration that the Town’s Ordinance 011 violated Texas Local
Government Code section 212.003(a)(4). Seadrift conceded that only if the trial
court declared the Town’s Ordinance 011 invalid would Seadrift be entitled to
issuance of a mandamus requiring the Town to approve its preliminary plat.
Seadrift argued: “In other words, as long as the two-acre minimum lot size
remains enforceable under Ordinance 11, the Town is not required to approve
Seadrift’s preliminary plat[,] and a writ of mandamus could not issue.”
A district court is vested with original mandamus jurisdiction over county
officials. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex.
1981) (citing former Tex. Const. art. V, § 8); Sheppard v. Thomas, 101 S.W.3d
577, 580 (Tex. App.––Houston [1st Dist.] 2003, pet. denied). A district court may
issue a writ of mandamus to compel a public official to perform a ministerial act.
See Sheppard, 101 S.W.at 580.7 An act is ministerial when the law clearly spells
7
Citing Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)
(requiring mayor to hold election on question of abolishing city’s corporate
18
out the duty to be performed by the official with sufficient certainty that nothing is
left to the exercise of discretion. Anderson, 806 S.W.2d at 793.
Here, the Town denied Seadrift’s preliminary plat because the proposed
subdivision lots in the Town’s ETJ were less than two acres in size; a two-acre lot
size was required by the Town’s Ordinance 011. Thus, as Seadrift concedes, at
the time the Town denied Seadrift’s preliminary plat, no ministerial duty existed
for the Town to approve the plat because the plat did not “satisfy all applicable
regulations,” namely Ordinance 011. Only after the trial court declared that the
Town’s Ordinance 011 violated the local government code could any ministerial
duty have arisen for the Town to approve Seadrift’s preliminary plat. Seadrift has
not cited, and we have not located, any authority for the proposition that a
mandamus will issue against a county official based on allegations that a
ministerial duty arose after the county official acted or failed to act. Likewise, no
summary-judgment evidence exists in the record before us that the Town has,
since Ordinance 011 was declared violative of local government code section
212.003(a)(4), granted or denied Seadrift’s preliminary plat. See In re Kuster,
363 S.W.3d 287, 290–91 (Tex. App.––Amarillo 2012, orig. proceeding) (denying
petition for writ of mandamus to the extent it sought relief based of facts that had
existence); Turner v. Pruitt, 161 Tex. 532, 533–34, 342 S.W.2d 422, 423 (1961)
(citing action against justice of peace for damages for failure to provide jury for
person charged with misdemeanor criminal offense in justice of peace court); and
Bichsel v. Carver, 159 Tex. 393, 394–95, 321 S.W.2d 284, 285 (1959)
(proceeding brought to mandamus chief of police to reinstate suspended police
officer).
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not yet occurred); Owens Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622,
624 (Tex. App.––Houston [1st Dist.] 1991, orig. proceeding) (holding mandamus
will not issue to compel a public official to do what he has not been asked to do).
Thus, the trial court did not err by denying Seadrift’s motion for summary
judgment on its mandamus claim. Our holding here does not prevent Seadrift
from refiling its mandamus claim. We overrule the sole issue raised by Seadrift
in its cross-appeal.
For these same reasons, we overrule the Town’s third issue contending
that Seadrift’s declaratory judgment action was simply a recasting of its
mandamus action. Because we affirm both the trial court’s grant of summary
judgment for Seadrift on Seadrift’s declaratory judgment claim and the trial
court’s denial of Seadrift’s motion for summary judgment on its claim for
mandamus relief, these two claims cannot be considered the same claim.
Moreover, it is the summary judgment on Seadrift’s declaratory judgment action
that terminated the uncertainty and the controversy between the parties, not the
mandamus action; the mandamus action will lie only if there is no controversy
because a ministerial duty is owed. See Anderson, 806 S.W.2d at 793; see also
Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (recognizing
that a trial court may enter a declaratory judgment so long as it will serve a useful
purpose of terminating the controversy between the parties).
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VII. CONCLUSION
Having overruled the Town’s three issues and having overruled the sole
issue raised in Seadrift’s cross-appeal, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
DELIVERED: September 25, 2014
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