NUMBER 13-15-00459-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
REGINALD TRAINER, EFRAIN AVENDANO, Appellant,
PAUL HULIN AND HERMAN LEVINGSTON,
v.
CITY OF PORT ARTHUR, Appellee.
On appeal from the 172nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
Appellants Reginald Trainer, Efrain Avendano, Paul Hulin and Herman Levingston
sued appellee, the City of Port Arthur, Texas (the “City”), seeking to invalidate a City
zoning ordinance. The trial court granted a plea to the jurisdiction filed by the City on the
basis of mootness and failure to exhaust administrative remedies, and appellants argue
that this was error. We affirm in part and reverse and remand in part.
I. BACKGROUND
This case involves certain property in Port Arthur owned by the Port Arthur
Independent School District (“PAISD”). In 2013, PAISD asked the Port Arthur City
Council to re-zone the land so that it could be sold to a residential developer, ITEX Group,
LLC (“ITEX”). The property had been zoned as two-family residential (“2F”) but PAISD
requested that it be re-zoned as multi-family residential (“MF”) in order to accommodate
ITEX, which intended to build townhomes or apartments on the property.
Several owners of land adjacent to the subject property, including appellants, filed
written protests with the City Council objecting to the re-zoning. See TEX. LOC. GOV’T
CODE ANN. § 211.006(a) (West, Westlaw through 2015 R.S.) (providing that re-zoning “is
not effective until after a public hearing on the matter at which parties in interest and
citizens have an opportunity to be heard”). After the issue was first considered by the
City Council in April of 2013, ITEX met with several of the protestors. According to
appellants, ITEX convinced some of the protestors to withdraw their protests, while other
protestors withdrew their protests on the condition that the proposed apartments be
restricted to senior citizens. Appellants did not withdraw their protests.
On July 9, 2013, the City Council passed Ordinance No. 13-32, which re-zoned
the property at issue from 2F to “Planned Development District No. 36” (“PD-36”), on a
5–3 vote. The ordinance provided that PD-36 “shall permit . . . Multi-Family development
consisting of townhomes joined by common walls.”
Appellants then filed the instant suit against the City for declaratory and injunctive
relief, arguing that the ordinance is invalid because it did not receive the approval of a
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three-fourths supermajority of the City Council. See id. § 211.006(d) (providing that a
zoning change must receive “the affirmative vote of at least three-fourths of all members”
of the city council when a protest is “written and signed by the owners of at least 20
percent of either: (1) the area of the lots or land covered by the proposed change; or (2)
the area of the lots or land immediately adjoining the area covered by the proposed
change and extending 200 feet from that area”). The trial court granted appellants’
request for a temporary restraining order enjoining the City from “allowing the zoning
change found in Ordinance 13-32 to be applied to the land” at issue. The temporary
restraining order also enjoined the City “from granting any person or entity a permit of any
kind, including a building permit or a certificate of occupancy, that would result in the
Property being used for a purpose allowed under a MF zoning classification that is not
allowed on a 2F zoning classification . . . .” Trial was set for October 24, 2013.
The City filed a plea to the jurisdiction on October 22, 2013, arguing: (1) the City
was entitled to governmental immunity and appellants failed to allege facts showing a
waiver of that immunity; (2) appellants failed to exhaust their administrative remedies
under Chapter 211 of the local government code, see id. § 211.010(a) (West, Westlaw
through 2015 R.S.) (providing that any person aggrieved by a decision made “by an
administrative official” may appeal that decision to the municipality’s zoning board of
adjustment (“ZBOA”)); and (3) the suit was “not ripe or justiciable” because, “[a]s a matter
of law the City’s zoning ordinances do not apply to land while it is owned by [PAISD].”
On October 24, 2013, after hearing argument from both parties’ attorneys, the trial
court agreed with the City that it lacked jurisdiction because appellants had failed to
exhaust their administrative remedies. However, instead of dismissing the suit, the trial
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court declared that it would “give [appellants] an opportunity to come back and explain to
the Court that [they] have exhausted [their] administrative remedies in accordance with
what the statute says.”
Attempting to comply with the trial court’s directive, appellants appeared before the
City’s ZBOA at its next meeting on November 21, 2013, and presented their argument
that the ordinance was invalid. According to appellants, the City argued at the meeting
that the ZBOA had no authority to hear the matter. At the conclusion of the meeting, the
ZBOA issued a decision agreeing with appellants that the ordinance was invalid. No party
appealed this decision.
More than a year after the ZBOA’s decision, ITEX applied for and received a permit
to construct 39 duplexes and a community center on the subject property. 1 The permit
stated that the current zoning on the property was PD-36. However, the proposed
construction did not include apartments or townhomes for which an MF or PD-36 zoning
designation would be required. The parties dispute whether the project would have been
permitted under the original 2F zoning. Appellants did not challenge the building permit
before the ZBOA.
The City then filed an amended plea to the jurisdiction arguing that: (1) appellants’
claims are moot “because they received administrative relief”; (2) appellants failed to
exhaust their administrative remedies prior to filing suit; and (3) appellants’ claims should
be dismissed because ITEX was an “omitted but necessary part[y].” See TEX. R. CIV. P.
39. Appellants then filed an amended petition (1) adding ITEX as a defendant, and (2)
1 By the time the building permit was issued, ITEX had obtained title to the subject property from
PAISD.
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asserting an additional claim that the duplex project was not authorized under a 2F zoning
designation.2 Subsequently, the City filed a supplement to their plea to the jurisdiction
contending that appellants did not exhaust their administrative remedies with regard to
their newly-raised claim.3
After an August 28, 2015 hearing at which no testimony was taken, the trial court
granted the City’s plea. It later issued findings of fact and conclusions of law stating in
part that appellants’ claims “regarding the validity of City of Port Arthur Ordinance No. 13-
32 have been rendered moot by the decision of [ITEX] to proceed with a project on the
property involving the construction of two-family residences, or duplex units, rather than
a multi-family project contemplated by Ordinance 13-32.” The trial court further concluded
that appellants “failed to exhaust their administrative remedies for their claims, if any,
regarding any error made by the City's administrative official in issuing a permit for the
construction of two-family residences, or duplex units, on the Property under the City’s
zoning ordinance.” This appeal followed.
II. DISCUSSION
A. Standard of Review
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34
2 Appellants’ amended petition requested a declaratory judgment stating: (1) that the ZBOA’s
November 21, 2013 decision “repealed Ordinance 13-32 in its entirety”; (2) in the alternative, that the
ordinance was invalid because it was not approved by a supermajority of the City Council; (3) that the
property’s “current zoning classification is 2F”; and (4) that the project for which ITEX received a building
permit “is not allowed under current zoning.” The amended petition also requested an injunction precluding
the City from issuing any permits for development on the subject property “that would not be allowed under
a 2F zoning classification.”
3 ITEX also filed a plea to the jurisdiction arguing that appellants failed to exhaust their
administrative remedies. The record does not contain a ruling on the plea. ITEX is not a party to this
appeal.
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S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter
jurisdiction. Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
The plaintiff has the initial burden to plead facts affirmatively showing that the trial
court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth
2003, pet. denied). Whether a trial court has subject matter jurisdiction and whether the
pleader has alleged facts that affirmatively demonstrate the trial court’s subject matter
jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v.
IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). We construe the pleadings liberally in favor
of the pleader, look to the pleader’s intent, and accept as true the factual allegations in
the pleadings. See Miranda, 133 S.W.3d at 226, 228.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, even when the evidence implicates the merits of the cause of
action. Id. at 227; Blue, 34 S.W.3d at 555; see City of Waco v. Kirwan, 298 S.W.3d 618,
622 (Tex. 2009). If the evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.
Miranda, 133 S.W.3d at 228. But if the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the
fact issue will be resolved by the fact finder. Id. at 227–28. In considering the evidence,
we “take as true all evidence favorable to the nonmovant” and “indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor.” Id.
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B. Mootness
By their first issue on appeal, appellants argue that the trial court erred in granting
the plea to the jurisdiction with regard to the claim made in their original petition that
Ordinance 13-32 is invalid because it was not approved by a supermajority of the City
Council. Specifically, they contend that the claim is not moot because Ordinance 13-32
has not been repealed and a permit was issued in accordance with the ordinance’s zoning
change.
The general rule is that a case becomes moot, and thus unreviewable, when it
appears that a party seeks to obtain relief on some alleged controversy when in reality
none exists. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); Clements v. Haskovec,
251 S.W.3d 79, 83 (Tex. App.—Corpus Christi 2008, no pet.) (citing Labrado v. Cnty. of
El Paso, 132 S.W.3d 581, 589 (Tex. App.—El Paso 2004, no pet.) (describing mootness
as “a component of subject matter jurisdiction”)); Schaban–Maurer v. Maurer–Schaban,
238 S.W.3d 815, 822 (Tex. App.—Fort Worth 2007, no pet.). “A case becomes moot if
at any stage there ceases to be an actual controversy between the parties.” Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). “Put simply, a case is
moot when the court’s action on the merits cannot affect the parties’ rights or interests."
Heckman v. Williamson Cnty., 369 S.W.3d 137, 167 (Tex. 2012).
The City argues that the ZBOA’s November 21, 2013 decision fully and finally
resolved the issue raised by appellants in their original petition—i.e., whether the
ordinance was invalid because it had not been approved by a supermajority of the City
Council. The City notes that, when an ordinance is repealed and replaced with one that
specifically addresses the complaint, the challenge to the old ordinance may become
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moot. See id. The City further argues that ITEX’s proposed project is in compliance with
the original 2F zoning that existed prior to the ordinance’s enactment.
Appellants, on the other hand, point out that although the ZBOA declared
Ordinance No. 13-32 to be invalid, the ordinance was never formally repealed by the City
Council. They also note that the building permit eventually issued to ITEX, dated March
10, 2015, states that the applicable zoning designation for the property remains PD-36—
not 2F, as it would be if the ZBOA’s November 21, 2013 decision had the effect of
repealing the ordinance.
We agree with appellants that their original claim is not moot. The building permit
indicates that, notwithstanding the ZBOA’s November 21, 2013 decision, the City
continues to consider the subject property as zoned PD-36. In other words, the City
continues to treat the property as if the ordinance were valid and in full effect. Moreover,
the City has not directed us to any statute or other authority, and we find none, authorizing
the ZBOA to invalidate an ordinance that has been duly passed and enacted by the City
Council. The statute delineating the authority of a ZBOA provides that it has the authority
to:
(1) hear and decide an appeal that alleges error in an order,
requirement, decision, or determination made by an administrative
official in the enforcement of this subchapter or an ordinance adopted
under this subchapter;
(2) hear and decide special exceptions to the terms of a zoning
ordinance when the ordinance requires the board to do so;
(3) authorize in specific cases a variance from the terms of a zoning
ordinance if the variance is not contrary to the public interest and,
due to special conditions, a literal enforcement of the ordinance
would result in unnecessary hardship, and so that the spirit of the
ordinance is observed and substantial justice is done; and
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(4) hear and decide other matters authorized by an ordinance adopted
under this subchapter.
TEX. LOC. GOV’T CODE ANN. § 211.009(a) (West, Westlaw through 2015 R.S.). Nowhere
does the statute authorize the ZBOA to determine the validity of an ordinance passed by
the City Council. See id. Instead, the ZBOA’s authority is circumscribed by the City
Council’s ordinances, and its power to review decisions is limited to decisions made by
“administrative officials.” See id.; see also id. § 211.010(a) (stating that a person may
appeal “a decision made by an administrative official” to the ZBOA). The City Council is
not an “administrative official.” Accordingly, the ZBOA’s November 21, 2013 decision did
not have the effect of repealing Ordinance No. 13-32, and appellants’ claim asking for a
declaration that the ordinance is invalid is not moot.
As noted, the City further contends that appellants’ original claim is moot because
ITEX received a building permit to develop the property in a manner that would have been
allowed under the original 2F zoning designation. The City attached to its plea to the
jurisdiction an affidavit by its Director of Development Services averring that the permit
issued to ITEX was “to construct 39 duplexes and other improvements allowed by the
City’s 2F zoning classification for the property.” However, as noted, the building permit
issued to ITEX indicates that the City still considers the property to be zoned PD-36. In
our analysis, we are required to take as true all evidence favorable to appellants. See
Miranda, 133 S.W.3d at 227–28. Because the evidence is conflicting regarding whether
the building permit allows development beyond what is permitted by the original 2F zoning
designation, a fact issue was raised, thereby precluding dismissal. See id.
Even assuming that ITEX’s proposed development would be allowed under the
original 2F zoning designation, we disagree that this would render appellants’ claims
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moot. The City notes correctly that the Uniform Declaratory Judgments Act (“UDJA”)
“does not waive the state’s sovereign immunity when the plaintiff seeks a declaration of
his or her rights under a statute or other law.” Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d
618, 620 (Tex. 2011). But the appellants in this case are not seeking a declaration of
their rights under Ordinance 13-32; rather, they are seeking a declaration that Ordinance
13-32 is invalid. The Texas Supreme Court has repeatedly recognized that claims
challenging the validity of statutes or ordinances are properly brought under the UDJA
and that sovereign immunity does not apply to such claims. See Patel v. Tex. Dep’t of
Licensing & Regulation, 469 S.W.3d 69, 76 (Tex. 2015); Sefzik, 355 S.W.3d at 622; Tex.
Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); City of El Paso
v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009); Tex. Educ. Agency v. Leeper, 893
S.W.2d 432, 446 (Tex. 1994); see also TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b)
(West, Westlaw through 2015 R.S.) (“In any proceeding that involves the validity of a
municipal ordinance or franchise, the municipality must be made a party . . . .”).
For the foregoing reasons, we conclude that the trial court erred in granting the
plea to the jurisdiction as to the claim made in appellants’ original petition that the
ordinance is invalid. Appellants’ first issue is sustained.
C. Failure to Exhaust Administrative Remedies
The trial court concluded that appellants failed to exhaust their administrative
remedies only with regard to the claim, first raised by appellants in their amended petition,
that ITEX’s March 10, 2013 building permit was improperly issued. By their second issue,
appellants contend that the trial court erred in granting the plea to the jurisdiction because
they exhausted all administrative remedies with respect to this claim.
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Generally, “where a statute creates an administrative remedy available to plaintiff,
the plaintiff must first exhaust his administrative remedy before the district court has
subject matter jurisdiction over the dispute.” Garcia-Marroquin v. Nueces Cnty. Bail Bond
Bd., 1 S.W.3d 366, 375 (Tex. App.—Corpus Christi 1999, no pet.).
Here, the trial court was correct in determining that it lacked jurisdiction over this
particular claim, because appellants never brought this issue to the ZBOA. As noted, the
ZBOA is authorized by statute to “hear and decide an appeal that alleges error in an order,
requirement, decision, or determination made by an administrative official,” such as a
decision by zoning administrator to grant a building permit. See TEX. LOC. GOV’T CODE
ANN. § 211.009(a)(1). A person “aggrieved by a decision of the [ZBOA]” may then seek
judicial review of that decision. Id. § 211.011(a)(1) (West, Westlaw through 2015 R.S.).
When a party files suit without first exhausting any available remedies with the ZBOA, the
court lacks subject-matter jurisdiction because the claim is not ripe. See Waterway
Ranch, LLC v. City of Annetta, 411 S.W.3d 667, 683 (Tex. App.—Fort Worth 2013, no
pet.); City of Paris v. Abbott, 360 S.W.3d 567, 573–74 (Tex. App.—Texarkana 2011, pet.
denied); Winn v. City of Irving, 770 S.W.2d 10, 11 (Tex. App.—Dallas 1989, no writ) (“It
is settled that the administrative remedies provided by Local Government Code section
211.009–.010 . . . must be exhausted before matters regarding nonconforming uses may
be brought before the courts.”). Because appellants did not exhaust their administrative
remedies regarding their claim that the building permit issued to ITEX was improper, the
trial court lacked jurisdiction over that claim.
Appellants’ second issue is overruled.
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III. CONCLUSION
We affirm the trial court’s judgment granting the City’s plea to the jurisdiction as to
appellants’ claim, first made in their amended petition, that the March 10, 2013 building
permit was improperly issued, because appellants failed to exhaust their administrative
remedies as to that claim.
We reverse the trial court’s judgment granting the City’s plea to the jurisdiction as
to appellants’ claim, first made in their original petition, that Ordinance No. 13-32 is invalid
because it did not receive the votes of a supermajority of the City Council. See TEX. LOC.
GOV’T CODE ANN. § 211.006(d). We remand that claim for further proceedings consistent
with this opinion.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
14th day of July, 2016.
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Reginald Trainer, Efrain Avendano, Paul Hulin and Herman Levingston v. City of Port Arthur
Combined Opinion