IN THE
TENTH COURT OF APPEALS
No. 10-10-00092-CV
LOWER COLORADO RIVER AUTHORITY,
Appellant
v.
JOSEPH ROBERT RILEY,
Appellee
From the 414th District Court
McLennan County, Texas
Trial Court No. 2009-2865-5
MEMORANDUM OPINION
Joseph Robert Riley owns property in McLennan County. In 2007, he executed a
“Deed of Easement” to Sandy Creek Energy Associates, L.P. (SCEA) authorizing the
construction and installation of a water pipeline to supply water to an electric
generation project. Riley filed a lawsuit against the Lower Colorado River Authority
(LCRA) and other entities regarding the easement. He alleges in his petition that SCEA
assigned an interest in the easement to LCRA without Riley’s approval in violation of
the “Deed of Easement.”
LCRA filed a plea to the jurisdiction asserting governmental immunity as to all
of Riley’s claims except inverse condemnation. The trial court granted the plea to the
jurisdiction on Riley’s claims against LCRA “for trespass, exemplary damages and
attorney’s fees,” but denied the plea as to Riley’s claim for declaratory judgment and
suit to quiet title. LCRA appeals. Because the trial court erred in denying LCRA’s plea
to the jurisdiction regarding Riley’s claim for a declaratory judgment and to quiet title,
the trial court’s order as to those claims is reversed and this proceeding is remanded to
the trial court to order dismissal of Riley’s claim for a declaratory judgment and suit to
quiet title.
IMMUNITY
Sovereign immunity protects the State and its various divisions, such as agencies
and boards, from suit and liability, whereas governmental immunity provides similar
protection to the political subdivisions of the state, such as counties, cities, and school
districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). No one disputes
that LCRA is a political subdivision of the State and is entitled to governmental
immunity. See Hodge v. Lower Colorado River Authority, 163 S.W.2d 855, 857 (Tex. Civ.
App.—Austin 1942 writ dism’d by agr.); TEX. SPEC. DIST. LOCAL LAWS CODE ANN. §§
8503.001-004 (West Pamp. 2011).
Sovereign immunity and governmental immunity are common law doctrines,
but the waiver of immunity has traditionally been left to the Legislature, assuming it to
Lower Colorado River Authority v. Riley Page 2
be "better suited to balance the conflicting policy issues associated with waving [sic]
immunity." Travis Cent. Appraisal Dist., 342 S.W.3d at 58 (quoting Wichita Falls State
Hosp., 106 S.W.3d at 695). When dealing with these immunities, the Legislature has
been required to express its intent to waive immunity clearly and unambiguously. Id.
(citing Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) and
TEX. GOV'T CODE ANN. § 311.034 (West Supp. 2011) (codifying the clear and
unambiguous standard)).
An order which grants or denies a plea questioning the trial court’s jurisdiction is
reviewed de novo. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). 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 case. Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings
liberally in favor of the plaintiffs and look to the pleaders' intent. Id.
In one issue, LCRA contends the trial court erred in partially denying LCRA’s
plea to the jurisdiction to Riley’s lawsuit.
IMMUNITY UNDER THE DJA
LCRA argues that Riley’s cause of action under the Declaratory Judgment Act,
TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 et seq. (West 2008), is essentially a suit to
determine title to real property for which immunity is not waived.
Lower Colorado River Authority v. Riley Page 3
LCRA is correct that generally, a trespass to try title claim is the exclusive
method in Texas for adjudicating disputed claims of title to real property. Sawyer Trust,
2011 Tex. LEXIS 640, *9; see TEX. PROP. CODE ANN. § 22.001(a) (West 2000) ("A trespass to
try title action is the method of determining title to lands, tenements, or other real
property."). Further, a trespass to try title claim is barred by sovereign immunity,
absent the legislature’s waiver of immunity. See id. But, as will be discussed in more
detail below, whether Riley’s DJA claim is actually a suit for a trespass to try title is
immaterial because immunity has not been waived for Riley’s claim.
Riley’s DJA claim
In his first amended petition, and pursuant to his DJA claim, Riley requests a
judgment declaring that LCRA has (1) no right or interest in and to the Deed of
Easement between Riley and SCEA; (2) no right of use of Riley’s property described in
the Deed of Easement; (3) no right of use of the pipeline installed in the Easement; and
(4) no right to transport water through the pipeline installed on Riley’s property as
described in the Deed of Easement. On appeal, Riley asserts several reasons why the
trial court did not err in denying LCRA’s plea to the jurisdiction.
A Suit under the DJA is Proper
Riley initially argues that the DJA is the proper vehicle by which to determine
the validity of an easement. He relies on Robertson v. City of Austin, and Mission v.
Popplewell in support of his argument. City of Mission v. Popplewell, 294 S.W.2d 712 (Tex.
Lower Colorado River Authority v. Riley Page 4
1956); Roberson v. City of Austin, 157 S.W.3d 130 (Tex. App.—Austin 2005, pet. denied).
Riley may be correct that between private parties the DJA is a proper vehicle by which
to determine the validity of an easement. However, his argument is not dispositive of
this case, and it is an issue we need not decide today.
In this case, Riley is not challenging the validity of the easement. The easement
was between Riley and SCEA, and Riley appears to have no quarrel with that
arrangement. His complaint appears to be about SCEA’s assignment to LCRA and
LCRA’s interest in the easement, LCRA’s use of his property, and LCRA’s use of the
pipeline installed on the easement. Further, neither of the cases cited by Riley addresses
whether sovereign immunity would bar the suit.
Most importantly, however, while the DJA waives sovereign immunity for
certain claims, such as challenges to the validity of a municipal ordinance or statute, it is
not a general waiver of sovereign immunity. Tex. Parks & Wildlife Dep't v. Sawyer Trust,
No. 07-0945, ___ S.W.3d ___, 2011 Tex. LEXIS 640, *7 (Tex. 2011) (citing TEX. CIV. PRAC.
& REM. CODE ANN. § 37.006(b) (West 2008); City of El Paso v. Heinrich, 284 S.W.3d 366,
373 n.6 (Tex. 2009)). The DJA does not alter or enlarge a trial court's jurisdiction; rather,
it is "merely a procedural device for deciding cases already within a court's
jurisdiction." Sawyer Trust, 2011 Tex. LEXIS 640, *7-8 (quoting Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)); Heinrich, 284 S.W.3d at 370. And a
litigant's request for declaratory relief does not alter a suit's underlying nature.
Lower Colorado River Authority v. Riley Page 5
Heinrich, 284 S.W.3d at 370. Accordingly, sovereign immunity will bar an otherwise
proper DJA suit that has the effect of establishing a right to relief against the State for
which the legislature has not waived immunity. Sawyer Trust, 2011 Tex. LEXIS 640, *8.
In his underlying suit, Riley does not challenge the validity of a municipal
ordinance or statute. Thus, sovereign immunity is not waived simply by alleging a
cause of action otherwise proper under the DJA.
Riley also argues, however, that the DJA waives immunity because it requires
LCRA to be made a party to his suit pursuant to section 37.006(a). In that provision,
‚Lower Colorado River Authority v. Joseph Robert Riley
Combined Opinion