Texas Department of Transportation v. Malcolm G. Dyer

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-10-00228-CV

HIDALGO COUNTY, Appellant,

v.

MALCOLM G. DYER, Appellee.

NUMBER 13-10-00251-CV

TEXAS DEPARTMENT OF
TRANSPORTATION, Appellant,

v.

MALCOLM G. DYER, Appellee.

On appeal from the 398th District Court
of Hidalgo County, Texas.

OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Opinion by Justice Perkes
 These cases are interlocutory, accelerated appeals from the trial court‘s orders

denying the Texas Department of Transportation (―the Department‖) and Hidalgo

County‘s (―the County‖) respective pleas to the jurisdiction based on sovereign and

governmental immunity.1 We conclude the trial court lacked subject-matter jurisdiction

over all of appellee Malcolm G. Dyer‘s claims challenged on appeal. We reverse the trial

court‘s respective orders denying the Department and the County‘s pleas to the

jurisdiction and render judgment dismissing all of Dyer‘s claims with prejudice, except for

Dyer‘s inverse-condemnation claim, which is not challenged on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2006, the County filed a condemnation action in county court to acquire fee

title to approximately 1.48 acres of land Dyer owned in Hidalgo County, Texas.2 The

County sought the land for purposes of expanding Jackson Road in Hidalgo County.3 A

Special Commissioners‘ Hearing was convened in July 2006 to assess damages the

County owed Dyer for the condemnation. Dyer claimed he never received proper notice

of the hearing, and he did not participate in the hearing.4 In August 2006, the county

court adopted the Special Commissioners‘ findings as its judgment in the County‘s

1
This court has jurisdiction to hear interlocutory appeals from orders denying a plea to the
jurisdiction filed by a governmental unit. See TEX. CIV. PRAC. & REM. CODE §51.014(a)(5), (8) (West 2008);
see also Texas A&M Univ Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007); Hidalgo County v. Gonzalez,
128 S.W.3d 788, 791 (Tex. App.—Corpus Christi 2004, no pet.).
2
The County‘s condemnation action was cause number CCD-1484-E in the County Court at Law
Number Five, Hidalgo County, Texas.
3
By agreement, the County was responsible for initiating and implementing condemnation
proceedings for acquisition of Dyer‘s property, and the Department was to reimburse the County for the cost
of acquiring the right-of-way.
4
Dyer also alleged other deficiencies pertaining to the Special Commissioners‘ Hearing, but they
are immaterial to the issues in these appeals.

2
condemnation suit.

On or about April 1, 2007, the Department and the County entered and took

possession of Dyer‘s property. According to Dyer, the Department and the County

started storing equipment on his land, destroyed access to one parcel of his land without

ever restoring it, and diminished his income from mining soil on his land.

In October 2007, Dyer filed a partial motion for summary judgment in the county

court, seeking dismissal of the County‘s condemnation action for lack of jurisdiction.

Among other things, Dyer complained he was not given proper notice of the Special

Commissioners‘ Hearing. In January 2008, the county court granted Dyer‘s partial

motion for summary judgment, and dismissed the County‘s condemnation action as

defective. In April 2008, the county court signed an agreed order to sever Dyer‘s

counterclaims against the County from the condemnation case.5

In June 2008, Dyer sued the Department and the County in the trial court, the

398th District Court of Hidalgo County. Against each defendant, Dyer alleged a claim for

inverse condemnation under article 1, section 17 of the Texas Constitution, violation of

the due-course-of-law provision in article 1, section 19 of the Texas constitution, violation

of the Texas Private Real Property Rights Preservation Act, violation of title 42, section

1983 of the United States Code, trespass, and claims for attorney‘s fees. In February

2009, Dyer filed his First Amended Petition, adding claims for declaratory relief premised

on the previously-filed claims in the lawsuit.

5
The severed counterclaims were assigned cause number CCD-1484-E-1 in the County Court at
Law Number Five, Hidalgo County, Texas. In November 2008, the trial court granted a motion to transfer
Dyer‘s severed counterclaims from the county court to the trial court and to consolidate them with Dyer‘s
suit against the Department and the County in the trial court.
3
 Both the Department and the County answered Dyer‘s suit and asserted pleas to

the jurisdiction. The trial court held a hearing on the pleas to the jurisdiction at which

Dyer testified. After the hearing, Dyer filed a Second Amended Petition, adding a claim

for ―negligent trespass.‖6

Several months later, the trial court denied the Department and the County‘s

respective pleas to the jurisdiction. The trial court signed two orders denying the

respective pleas. The County and the Department each filed a timely notice of

accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)

(West 2008) (authorizing interlocutory appeal from a district court‘s order denying a

governmental unit‘s plea to the jurisdiction); see also Id. § 101.001 (West 2005) (defining

―governmental unit‖ so as to include the Department and the County); TEX. R. APP. P. 28.1

(identifying and setting forth procedural rules for accelerated appeals).

There being two orders, a separate cause number was assigned to each case on

appeal. The appeals arise from a single case in the trial court and a single set of facts.

The record on appeal has been consolidated in these cases. Although the appeals have

not been consolidated, in the interest of judicial economy, we issue a single opinion

herein disposing of both appeals.

II. ISSUES PRESENTED

The Department and the County each present this single issue, with several

sub-issues for review; Does the trial court lack subject-matter jurisdiction over the

following:

6
All subsequent references to Dyer‘s ―petition‖ in this opinion are to Dyer‘s Second Amended
Petition as it was his live pleading when the trial court ruled on the pleas to the jurisdiction.
4
 (1) Dyer‘s claim under article 1, section 19 of the Texas Constitution;

(2) Dyer‘s claim under title 42, section 1983 of the United States Code;

(3) Dyer‘s claim under the Texas Private Real Property Rights Preservation Act;

(4) Dyer‘s trespass claim;

(5) Dyer‘s declaratory-judgment claims; and

(6) Dyer‘s attorney‘s fees claims?7

III. STANDARD OF REVIEW AND BURDEN OF PROOF

To render a binding judgment, a court must have both subject-matter jurisdiction

over the controversy and personal jurisdiction over the parties. Spir Star AG v. Kimich,

310 S.W.3d 868, 871 (Tex. 2010). A plea to the jurisdiction is a dilatory plea; its purpose

is ―to defeat a cause of action without regard to whether the claims asserted have merit.‖

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges

the trial court‘s subject matter jurisdiction over a pleaded cause of action. Tex. Dep’t of

Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Cameron County, Tex.

vs. Ortega, 291 S.W.3d 495, 497 (Tex. App.—Corpus Christi 2009, no pet.). Subject-

matter jurisdiction is a question of law; therefore, we review the trial court‘s ruling on a

plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 228; Ortega, 291 S.W.3d at

497.

A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial

court's jurisdiction. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002);

7
In its appellate briefing, the County includes its sub-issue challenging Dyer‘s claims for attorney
fees with sub-issue five, in which it challenges the trial court‘s subject-matter jurisdiction over Dyer‘s
declaratory-judgment action. For purposes of this opinion, we treat the County‘s challenge to Dyer‘s claim
for attorney fees as a sixth sub-issue.
5
State of Tex. Parks & Wildlife Dept. v. Morris, 129 S.W.3d 804, 807 (Tex. App.—Corpus

Christi 2004, no pet.). In deciding a plea to the jurisdiction, a court may not weigh the

merits of the causes of action, but must consider only the plaintiff‘s pleadings and any

evidence in the record pertinent to the jurisdictional inquiry. County of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002); City of Laredo v. Nuno, 94 S.W.3d 786, 788

(Tex. App.—San Antonio 2002, no pet.). The appellate court must examine the

pleader's intent and construe the pleading in the plaintiff's favor. Brown, 80 S.W.3d at

555; Ramirez, 74 S.W.3d at 867. However, a plea to the jurisdiction may be granted

without allowing the plaintiff to amend the pleading if the pleading affirmatively negates

the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867.

IV. ANALYSIS

On appeal, Dyer argues this Court should not analyze on a claim-by-claim basis

whether the trial court had subject-matter jurisdiction because the Department and

County‘s pleas to the jurisdiction were general and asked that all of Dyer‘s claims be

dismissed. The reporter‘s record on appeal shows that at the special-appearance

hearing, without objection, the Department challenged the trial court‘s subject-matter

jurisdiction claim-by-claim, the County adopted the Department‘s arguments as its own,

and afterward the trial court denied the respective pleas to the jurisdiction. In Thomas v.

Long, the Supreme Court of Texas held a trial court should address subject-matter

jurisdiction claim-by-claim, dismissing claims over which it lacks subject-matter

jurisdiction and retaining claims in the same case over which it has jurisdiction. 207

6
S.W.3d 334, 338–39 (Tex. 2006). Accordingly, we address Dyer‘s claims individually to

determine whether the trial court lacked subject-matter jurisdiction over them. See id.

A. Dyer’s Trespass Claim

The Department and the County argue that immunity from suit has not been

waived for Dyer‘s trespass claim because Dyer has alleged an intentional tort for which

the Texas Tort Claims Act does not waive immunity. We agree.

The Texas Tort Claims Act (the ―Act‖) provides a limited waiver of immunity for

certain suits against governmental entities and caps recoverable damages. See TEX.

CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.023 (West 2005). The Act does not waive

immunity for claims arising from any intentional tort. Id. § 101.057 (West 2005). In

determining whether a plaintiff‘s claims are barred by immunity, we look to the substance

of the claims alleged because governmental immunity cannot be circumvented by artful

pleading. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 577 & 580 (Tex. 2001);

Harris County v. Cabazos, 177 S.W.3d 105, 111-12 (Tex. App.—Houston [1st Dist.] 2005,

no pet.) (citing Delaney v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex. 1992)).

The intentional tort of trespass involves the intent to commit an act which violates a

property right or is practically certain to have that effect, although the actor may not know

the act he intends to commit is a violation of a property right. Warwick Towers Council of

Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. 298 S.W.3d 436,

447 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Harris County v. Cypress Forest

Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

Dyer pleaded that the Department and the County trespassed on his property by entering

7
it and ―staging‖ construction materials/equipment, concrete, and piping on it. Dyer

pleads the Department and the County‘s contractor for the Jackson Road Project told

Dyer that the Department and the County instructed the contractor to place and keep

these items on Dyer‘s property. In the alternative, Dyer claims these same actions are a

―negligent trespass‖ that caused him damages.

Although Dyer attempts to characterize his trespass claim as a negligence claim,

Dyer‘s petition alleges intentional conduct for which there is no waiver of immunity. See

Harris County, 50 S.W.3d at 554 (holding allegation of trespass by dumping hazardous

materials on land alleged an intentional tort). In light of this conclusion, we need not

reach the County‘s argument that the trial court lacked subject-matter jurisdiction over

Dyer‘s trespass claim because Dyer failed to give pre-suit notice of this claim under Texas

Civil Practice and Remedies Code section 101.101. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.101 (West 2005). We sustain the Department and the County‘s fourth

sub-issue on appeal.

B. Dyer’s Texas Private Real Property Rights and Preservation Act Claims

The Department argues Dyer‘s claim against it under the Texas Private Real

Property Rights Preservation Act (―PRPRPA‖) should have been dismissed for lack of

subject-matter jurisdiction because Dyer failed to exhaust his administrative remedies by

filing a contested case with the Department, a prerequisite to judicial review of Dyer‘s

PRPRPA claim against the Department. See TEX. GOV'T CODE ANN. § 2007.001–.045

(West 2008) (PRPRPA). The County argues Dyer‘s PRPRPA claim against it should be

8
dismissed for lack of subject-matter jurisdiction because Dyer failed to timely file the

PRPRPA claim against it in district court.

i. Standard of Review for Questions of Statutory Construction

We review questions of statutory construction de novo. Singleton v. Casteel, 267

S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing City of San

Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In construing statutes, our

primary objective is to give effect to the Legislature's intent. Tex. Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain

meaning of the text as expressing legislative intent, unless a different meaning is supplied

by legislative definition or is apparent from the context, or the plain meaning leads to

absurd results. Id. We presume the Legislature selected the language in a statute with

care and that every word or phrase was used with a purpose in mind. Id. When the

language of a statute is clear and unambiguous, Texas courts do not resort to rules of

construction or extrinsic aids to construe the language. Id. at 640 (citing City of Rockwall

v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008)).

PRPRPA waives sovereign immunity from suit and liability to the extent it creates

liability. See TEX. GOV'T CODE ANN. § 2007.004(a). PRPRPA authorizes a ―private real

property owner‖ to seek a determination that a ―governmental action‖ constitutes a

―taking‖ as defined in the act. See id. §§ 2007.002(2), (4), (5), 2007.021–.23. If the

owner succeeds in obtaining such a determination, he is entitled to an order that the

governmental entity in question rescind the governmental action, or the part of the

governmental action resulting in the taking. See id. §§ 2007.023(b), .024(a). In

9
response to such an order, the governmental entity has the option, instead of rescission,

of paying damages as compensation to the prevailing owner for the taking. See id. §

2007.024(c)–(f).

PRPRPA sets forth different requirements for an ―Administrative Proceeding

Against [a] State Agency‖ and a ―Suit Against a Political Subdivision.‖ Compare id. §

2007.021 (suit against political subdivision), and, §.022 (administrative proceeding

against state agency). PRPRPA provides ―a private real property owner may file a

contested case with a state agency to determine whether a governmental action of the

state agency results in a taking under this chapter.‖ Id. § 2007.022(a). PRPRPA

specifies a private real property owner may bring suit ―under this subchapter to determine

whether the governmental action of a political subdivision results in a taking under this

chapter.‖ Id. § 2007.021(a). Such a suit ―must be filed in a district court in the county in

which the private real property owner‘s affected property is located.‖ Id.

―In each case, the proceeding must be filed with its appropriate tribunal ‗not later

than the 180th day after the date the private real property owner knew or should have

known that the governmental action restricted or limited the owner's right in the private

real property.‘‖ State v. BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex. App.—Austin

2009, pet. filed) (quoting TEX. GOV‘T. CODE ANN. §§ 2007.021(b), .022(b)). Further, ―a

person who has exhausted all administrative remedies available within the state agency

and is aggrieved by a final decision or order in a contested case filed under Section

2007.22 is entitled to judicial review‖ under the Administrative Procedure Act, although

such review is by trial de novo. TEX. GOV'T CODE ANN. § 2007.025(b) (referencing

10
Government Code Chapter 2001, the Administrative Procedure Act). The court or state

agency shall award a private real property owner or governmental entity that prevails in a

suit or a contested case reasonable and necessary attorney‘s fees and court costs. Id. §

2007.026.

ii. The Department’s PRPRPA Argument

The Department argues that because it is a state agency, as a jurisdictional

prerequisite to judicial review of his PRPRPA claim against it, Dyer was required to timely

file a contested case with the Department. Dyer argues filing a contested case is

optional because the statute says a contested case ―may‖ be filed. We agree with the

Department.

The parties agree the Department is a state agency. See State v. Lucek, 290

S.W.3d 876, 880 (Tex. 2009) (recognizing the Texas Department of Transportation as a

state agency). Under the plain meaning of the text of the statute, the timely filing of a

contested case with the Department is a prerequisite for judicial review of a PRPRPA

claim against it. See TEX. GOV'T CODE ANN. § 2007.022, .025(b). While the statute

provides a contested case ―may‖ be filed with a state agency, it also provides that

sovereign immunity from a PRPRPA claim is only waived to the extent set forth in the

PRPRPA statute. Id. § 2007.004, .022. The statute only provides for judicial review of a

PRPRPA claim against a state agency after a person has ―exhausted all administrative

remedies available within the state agency and‖ obtained ―a final decision or order in a

contested case filed under Section 2007.22.‖ Id. § 2007.025(b). Analyzing this

language in BP America Production Company, the Third Court of Appeals concluded a

11
timely contested case challenging the actions of a state agency is a jurisdictional

prerequisite to filing a suit for judicial review of a PRPRPA claim against a state agency.

BP Am. Prod. Co., 290 S.W.3d at 348.

Dyer‘s pleadings do not demonstrate that he exhausted his administrative

remedies by timely filing a contested case to challenge the Department‘s actions. At oral

argument, Dyer conceded he did not file a contested case with the Department prior to

seeking judicial review of his PRPRPA allegations against the Department. Under these

facts, the district court erred in denying the Department‘s plea to the jurisdiction as to

Dyer‘s PRPRPA claim against the Department. See TEX. GOV'T CODE ANN. §

2007.025(b); BP Am. Prod. Co., 290 S.W.3d at 348. Dyer cannot be entitled to

attorney‘s fees on his PRPRPA claim against the Department in this case because there

is no way he can prevail in a contested case or suit against the Department under

PRPRPA, now that the 180 days for filing a contested case has expired. See TEX. GOV'T

CODE ANN. § 2007.022(b), .026. We sustain the Department‘s third sub-issue on appeal.

iii. The County’s PRPRPA Argument

The County argues Dyer‘s PRPRPA claim against it should be dismissed for lack

of subject-matter jurisdiction because Dyer failed to timely file his PRPRPA claim against

it in district court. The County points out that Dyer alleges the taking occurred in April

2007, but the present lawsuit was filed in June 2008, well outside the applicable 180-day

time frame. Dyer maintains the time to file his PRPRPA claim against the County in

district court was tolled during the pendency of the County‘s condemnation suit against

him in county court. The record in this case reflects that the County‘s condemnation suit

12
was filed in May 2006 and dismissed on Dyer‘s motion for summary judgment for lack of

jurisdiction in January 2008. Dyer argues his 180 days to file suit started to operate in

April 2008, when the county court severed his counterclaims from the County‘s

condemnation suit. According to Dyer, he timely filed his PRPRPA claim against the

County by filing this lawsuit in the trial court in June 2008.

Dyer bases his tolling argument on section 2007.003(b)(8), which provides that

PRPRPA ―does not apply to‖ a ―formal exercise of the power of eminent domain.‖ See

TEX. GOV'T CODE ANN. § 2007.003(b)(8). Otherwise, Dyer does not cite any legal

authority for his tolling argument and there is no tolling provision in the statute. See id.

§§ 2007.001–.045. Dyer simply argues that because PRPRPA does not waive immunity

for a formal exercise of eminent domain, his time to file suit against the County was tolled

until the county court granted Dyer‘s motion for summary judgment and dismissed the

County‘s condemnation action against Dyer for lack of jurisdiction. We disagree.

Nothing in the plain language of PRPRPA provides for tolling the time a private real

property owner may bring suit against a political subdivision. The plain language of the

statute provides ―[a] suit under this subchapter must be filed not later than the 180th day

after the date the private real property owner knew or should have known that the

governmental action restricted or limited the owner‘s right in the private real property.‖

Id. § 2007.021(b). Under the statute, the time to file suit depends only on when the

property owner knew or should have known of the restriction or limitation on the owner‘s

real-property right. It does not depend on the timing of any other factor.

13
 Applying the statute to this case, the parties agree the County is a political

subdivision. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (identifying

counties as political subdivisions of the state). Dyer pleads the alleged taking of his

property commenced on or about April 1, 2007, and testified to this fact at the

special-appearance hearing. As such, Dyer‘s 180 days to file his PRPRPA claim against

the County in district court expired well before June 2008, when Dyer filed his PRPRPA

claim against the County in district court. See TEX. GOV'T CODE ANN. § 2007.021(b). As

PRPRPA only waives immunity from suit to the extent provided for in the act, the

requirement that suit against a political subdivision be timely filed in district court is

jurisdictional. See id. §§ 2007.004(a), .021(b); BP Am. Prod. Co., 290 S.W.3d at 367

(holding timely filing in proper district court is a jurisdictional requirement for suing a

political subdivision pursuant to PRPRPA).

We hold the trial court lacked jurisdiction over Dyer‘s PRPRPA claim against the

County. Dyer cannot be entitled to attorney‘s fees on his PRPRPA claim against the

County because there is no way he can prevail in a PRPRPA suit against the County, now

that the 180 days for filing suit has expired. See TEX. GOV'T CODE ANN. § 2007.021(b),

.026. We sustain the County‘s third sub-issue on appeal.

In doing so, we note that this conclusion is consistent not only with the plain

language of the statute, but also with Dyer‘s position in the trial court until the time of the

special-appearance hearing. In Dyer‘s response to the County‘s plea to the jurisdiction,

which was a live pleading at the time of the special-appearance hearing, Dyer argued the

trial court had jurisdiction over his PRPRPA claim because the County‘s condemnation

14
action filed in county court was not a ―formal exercise of the power of eminent domain‖ as

it was defective. Accordingly, Dyer argued he could sue the County under PRPRPA and

he argued he did so in a timely basis by asserting a counterclaim within 180 days of April

1, 2007, and then amending the counterclaim (after 180 days had expired) to allege a

PRPRPA claim against the County.8

C. Dyer’s Claims Under Texas Constitution and Declaratory-Judgment Action

The Department and the County do not dispute the trial court‘s assertion of

subject-matter jurisdiction over Dyer‘s inverse-condemnation claim brought pursuant to

article I, section 17 of the Texas Constitution. See TEX. CONST. art. I, § 17. But the

Department and the County argue the trial court lacked subject-matter jurisdiction over

Dyer‘s claims against them under article I, section 19 of the Texas Constitution because it

is an unauthorized claim for money damages. Id. art. I, § 19.

There is no cause of action for money damages against the State or a political

subdivision of the State under article I, section 19 of the Texas Constitution. See id.;

Smith v. City of League City, 338 S.W.3d 114, 127 (Tex. App.—Houston [14th Dist.] 2011,

no pet.) (citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995)). In his

petition, Dyer alleges the Department and the County violated his rights under section 19

by taking his land without notice and an opportunity to be heard. Dyer prays for money

damages, but does not seek any injunctive relief under article I, section 19.

On appeal, Dyer argues he is not only seeking money damages, but is also

seeking a declaratory judgment that his rights under section 19 were violated. In his

8
Dyer first raised his tolling argument at the special-appearance hearing and afterward made the
tolling argument in a brief filed in support of Dyer‘s response to the Department‘s plea to the jurisdiction.
15
petition, Dyer also seeks a declaratory judgment that he is entitled to relief on all of his

other causes of action alleged against the Department and the County. Dyer also seeks

attorney‘s fees for prevailing in the declaratory-judgment action. But a private party

cannot circumvent sovereign immunity from suit by characterizing a suit for money

damages as a declaratory-judgment claim. City of Houston v. Williams, 216 S.W.3d 827,

828–29 (Tex. 2007); Tex. Dep’t of Transp. v. Crockett, 257 S.W.3d 412, 417 (Tex.

App.—Corpus Christi 2008, pet. denied). Where the Legislature has not consented to a

declaratory-judgment action against the State or its political subdivision, there can

obviously be no award of attorney‘s fees for prevailing in the incognizable

declaratory-judgment action. Compare Tex. Educ. Agency v. Leeper, 893 S.W.2d 432,

446 (Tex. 1994) (concluding ―that by authorizing declaratory judgment actions to construe

the legislative enactments of governmental entities and authorizing awards of attorney

fees, the [Declaratory Judgment Act] necessarily waives governmental immunity for such

awards‖), with Hagemand/Fritz, Byrne, Head & Harrison, L.L.P. v. Luth, 150 S.W.3d 617,

727 (Tex. App.—Austin 2004, no pet.) (holding attorney fees in declaratory-judgment

action are improper when the declaratory judgment sought is no different than the relief

sought by other causes of action in the same suit).

Here, the only alleged injury Dyer complains of has already occurred, leaving him

with only one possible remedy—an award of money damages. See City of Houston, 216

S.W.3d at 829. Accordingly, the trial court lacked subject-matter jurisdiction over the

declaratory-judgment action and the claim under article I, section 19 of the Texas

Constitution. See Smith, 338 S.W.3d at 127; City of Houston, 216 S.W.3d at 829. We

16
sustain the Department and County‘s first and fifth sub-issues on appeal. In light of our

disposition of the County‘s fifth sub-issue, we need not reach the County‘s argument on

appeal that Dyer failed to plead a basis for waiver of immunity for his article 1, section 19

claim.

D. Dyer’s Claims Under Title 42, Section 1983 of the United States Code

The Department argues the trial court lacks subject-matter jurisdiction over Dyer‘s

section 1983 claim because the Department is not a ―person‖ under section 1983. The

County argues a section 1983 claim against it is not ripe because Dyer has not exhausted

the remedies the State of Texas provides, in particular his inverse-condemnation suit.

i. The Department’s Section 1983 Argument

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

The Eleventh Amendment to the United States Constitution protects the State of

Texas from suit in its own courts for an alleged violation of federal law. See U.S. CONST.

amend. XI; Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). A state‘s

eleventh-amendment immunity is not waived for a civil-rights claim based on section

17
1983. Will, 491 U.S. at 66–67. While the scope of the Eleventh Amendment and

section 1983 are separate issues, the Supreme Court has held that neither the state nor a

state official acting in his official capacity is a ―person‖ for purposes of section 1983, and

therefore a citizen cannot sue the State pursuant to section 1983. Id. at 66, 71. As a

result, the trial court lacked subject-matter jurisdiction over Dyer‘s section 1983 claim

against the Department. See id.; see also Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d

575, 581 (Tex. 2001) (holding suit against highway patrolman in his official capacity was

really a suit against the Texas Department of Public Safety which is not a ―person‖ under

section 1983); Jones v. Texas Dep’t of Trans., 318 S.W.3d 398, 403 (Tex. App.—Waco

2010, pet. denied) (holding Texas Department of Criminal Justice and its employees

acting in their official capacity are not ―persons‖ under section 1983). Because

attorney‘s fees for a section 1983 action are only recoverable by a prevailing party and

Dyer cannot prevail on his 1983 claim against the Department, the trial court lacked

jurisdiction over Dyer‘s claim for attorney‘s fees in conjunction with his 1983 claim. See

42 U.S.C. § 1988. We sustain the Department‘s second sub-issue on appeal.

ii. The County’s Section 1983 Argument

Ripeness is a component of subject-matter jurisdiction. Ripeness cannot be

waived and may be raised for the first time on appeal. See Waco Ind. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (addressing ripeness in school district‘s

interlocutory appeal even though trial court did not rule on ripeness). Assuming, for the

sake of argument only,9 that Dyer‘s 1983 claim against the County is premised on an

9
On appeal, the County argues Dyer‘s pleading is too conclusory to allege a 1983 claim against
it because as the County reads his petition, Dyer has not clearly identified the federal right the County has
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alleged violation of the ―just compensation clause‖ of the Fifth Amendment to the United

States Constitution, we agree with the County that Dyer‘s 1983 claim against the County

is not ripe because Dyer‘s inverse-condemnation claim against the County has not yet

been resolved.

The Fifth Amendment to the United States Constitution prohibits the taking of

private property for public use without just compensation, but it does not require payment

before the taking occurs. See U.S. CONST. amend. V; Town of Flower Mound v. Stafford

Estates, L.P., 135 S.W.3d 620, 645 (Tex. 2004). A violation of the Just Compensation

Clause may be brought under section 1983. See Town of Flower Mound, 135 S.W.3d at

645–46. But if there is an adequate state-law remedy to compensate for the taking of

property, a federal claim under the Just Compensation Clause is premature until the

aggrieved party has used the state remedy and been denied just compensation.

Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 194–95 (1985).

An inverse-condemnation action under article 1, section 17 of the Texas

Constitution is an adequate state remedy for seeking just compensation for a taking.

See id. at 196 (holding federal just-compensation claim was premature when property

owner had not yet used Tennessee‘s inverse-condemnation statute to obtain relief);

Town of Flower Mound, 135 S.W.3d at 646 (holding inverse-condemnation claim under

article 1, section 17 of Texas Constitution provided just compensation for taking and

allegedly violated. See City of Dallas v. Saucedo-Falls, 268 S.W.3d 653, 659 (Tex. App.—Dallas 2008,
pet. denied) (explaining section 1983 does not create substantive rights, but provides a remedy for violation
of a federal right created elsewhere). Under the facts of this case, it is not necessary to the disposition of
this case for this Court to reach the merits of this contention. See TEX. R. APP. P. 47.1.
19
therefore precluded federal just-compensation claim using section 1983); see also

Severance v. Patterson, 566 F.3d 490, 496–500 (5th Cir. 2009) (holding federal takings

claim unripe under Williamson County because owner had not yet used Texas state

remedies to challenge physical takings); Guetersloh v. State, 930 S.W.2d 284, 287–88

(Tex. App.—Austin 1996, writ denied) (discussing possibility of bringing state and

contingent federal claims for just compensation in a single lawsuit as to avoid risk of

forfeiting federal claim by claim preclusion). Accordingly, Dyer‘s 1983 claim is not yet

ripe for review in the trial court because he has not been denied just compensation in his

inverse-condemnation suit against the County under article 1, section 17 of the Texas

Constitution. Because attorney‘s fees for a section 1983 action are only recoverable by

a prevailing party and Dyer cannot prevail on an unripe 1983 claim, the trial court lacked

jurisdiction over Dyer‘s claim for attorney fees in conjunction with his 1983 claim. See 42

U.S.C. § 1988. We sustain the County‘s second sub-issue.

E. Dyer’s Attorney’s-Fees Claims

As set forth above, Dyer‘s claims for attorney‘s fees under section 1983, PRPRPA,

and his declaratory-judgment action fail for lack of subject-matter jurisdiction. In his

petition, Dyer also seeks attorney‘s fees generally under the laws of Texas and the United

States. Because the only claim over which the trial court had subject-matter jurisdiction

is Dyer‘s inverse-condemnation claim and attorney‘s fees are not recoverable for an

inverse-condemnation claim, the trial court lacks subject-matter jurisdiction over Dyer‘s

claims for attorney‘s fees. See State v. Biggar, 848 S.W.2d 291, 298 (Tex. App.—Austin

1993), aff’d, 873 S.W.2d 11 (Tex. 1994) (holding attorney‘s fees are not available for

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prevailing on inverse-condemnation claim). We sustain the Department and the

County‘s sixth sub-issue.

V. CONCLUSION

Having sustained the Department and County‘s respective issues, including all

sub-issues, we conclude the trial court lacked subject matter jurisdiction over all of Dyer‘s

claims challenged on appeal. We reverse the trial court‘s respective orders denying the

Department and the County‘s pleas to the jurisdiction and render judgment dismissing all

of Dyer‘s claims with prejudice,10 except for Dyer‘s inverse-condemnation claims, which

are not challenged on appeal.

______________________
Gregory T. Perkes
Justice

Delivered and filed the
31st day of August, 2011.

10
See Harris County, 136 S.W.3d at 639 (holding dismissal should be with prejudice when plaintiff
has been afforded reasonable opportunity to amend its pleading after governmental entity filed plea to the
jurisdiction and plaintiff still does not allege facts that would constitute a waiver of immunity).
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