COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
COUNTY OF EL PASO,
§ No. 08-14-00250-CV
Appellant,
§ Appeal from the
v.
§ 243rd Judicial District Court
JOEL NAVAR,
§ of El Paso County, Texas
Appellee.
§ (TC# 2010-1789)
OPINION
Joel Navar sued the County of El Paso for money damages resulting from the County’s
failure to issue certificates of compliance for mobile home lots owned by him and for a declaration
that he is entitled to those certificates. Claiming governmental immunity from suit and from
liability, the County filed a plea to the jurisdiction seeking dismissal of Navar’s claims against it.
After holding a hearing on the County’s plea, the trial court denied it without explanation. The
County now brings this interlocutory appeal. See TEX.CIV.PRAC.&REM.CODE ANN.
§ 51.014(a)(8)(West 2015). We affirm, in part, and vacate and render, in part.
FACTUAL AND PROCEDURAL BACKGROUND
Navar owns mobile home lots located in Fabens, TX. Section 232.023 of the Texas Local
Government Code requires an owner of land situated within 50 miles of an international border to
file a plat with the County Clerk if subdividing a parcel of land into lots for sale or lease. See
TEX.LOC.GOV’T CODE ANN. § 232.021(14), TEX.LOC.GOV’T CODE ANN. § 232.023 (West Supp.
2014). The plat must, among other requirements, include certifications that utility services to the
lots meet or will meet minimum state standards. TEX.LOC.GOV’T CODE ANN. § 232.023(b)(12).
Each plat must be approved by the commissioners’ court. TEX.LOC.GOV’T CODE ANN.
§ 232.024(a). If the commissioners’ court approves a plat, it is required to “issue to the person
applying for the approval a certificate stating that the plat has been reviewed and approved by the
commissioners court.” TEX.LOC.GOV’T CODE ANN. § 232.0028(a). This person may also
petition the commissioners’ court for a written certification determining:
(1) whether a plat has been prepared and whether it has been reviewed and
approved by the commissioners court;
(2) whether water service facilities have been constructed or installed to service the
lot or subdivision under Section 232.023 and are fully operable;
(3) whether sewer service facilities have been constructed or installed to service the
lot or subdivision under Section 232.023 and are fully operable, or if septic systems
are used, whether the lot is served by a permitted on-site sewage facility or lots in
the subdivision can be adequately and legally served by septic systems under
Section 232.023; and
(4) whether electrical and gas facilities, if available, have been constructed or
installed to service the lot or subdivision under Section 232.023.
See Id. at § 232.028(b), (d). By law, the commissioners’ court must “make its determinations
within 20 days after the date it receives the request under Subsection (b) and shall issue the
certificate, if appropriate, within 10 days after the date the determinations are made.” Id. at
§ 232.028(e).
On or about April 1, 2008, Navar sought certificates of compliance for four parcels of land
owned by him. “The certificates . . . are necessary to secure utility services for tenants and
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prospective tenants of various mobile homes located on or about the properties.” In his
handwritten letter to the El Paso County Commissioner’s Court and the Roads & Bridges
Department requesting the issuance of the certificates, Navar stated:
Addecuate [sic] water & sewer is available to these subdivisions as required by law.
Note that I have gotten certificates of compliance before. I hereby request you
honor them or reissue new one without objection. Please respond in writing if any
request is denied. [sic] and reason for denial.
. . .
As property owner, I own several lots and I like to help my tenants and prospective
tenants have their household and residency stablished [sic] the eseast [sic] posible
[sic] way and in compliance. [sic] by having the certificate ready for their utilities
conection [sic] to their new home upon request.
As I have done in the past, prior to the 2005 Law/Enforcement. According to
Code, I have been in compliance as permited [sic] by law. Needless to mention, I
should not be forced or required to get 30 supply contracts/or paid deposits.
Luis Rodriguez, “the Lead Planner of [El Paso County’s] Road & Bridge Department/Public
Works Department[,]” denied the issuance of the certificates because “[t]he residences situated on
Plaintiff’s parcels of land were not in compliance with statutory authority.” Rodriguez did not
identify the statutory authority on which he relied.
Navar sued the County on May 11, 2010 for failing to issue the certificates and to make the
determinations he requested. Sometime thereafter, the County issued the certificates of
compliance and made the determinations requested by Navar. According to Luis Rodriguez, the
certificates of compliance were issued to Navar because “the number of parcels of land was greater
than the number of residences situated therein.” Despite receiving the documents he requested,
Navar proceeded with his lawsuit against the County. In his amended petition filed April 17,
2014, Navar alleged that the County was liable for engaging in the following conduct:
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Employees, agents and/or representatives of the County acting within the course
and scope of that relationship notified Plaintiff that he would be required to
re-construct, at Plaintiff’s expense the water and sewage facilities for the parcels of
property even though the parcels already contained fully operable water and
sewage facilities for the mobile homes as they were situated. Plaintiff was told by
the County agent that he would be issued a certificate of compliance only after such
re-construction was complete. Plaintiff was also notified that he would be
required to re-position mobile homes that were located on the parcels of property
even though the mobile homes had existed in their current location for decades
before, even though existing water, electrical, gas and sewage facilities had been
constructed to service the mobile homes in their current position and even though
the County had issued certificates of compliance based on the current mobile home
location and current water, sewage, gas and electrical facilities. The County
refused without any legitimate basis to issue the certificates or make the
determinations required by law, and the County insisted on the mobile home
re-location and facility re-construction without any legitimate basis. After this
litigation had been pending for many years, the County finally issued the
certificates. However, during the time prior to the certificates being issued,
Plaintiff was unable to secure utility service and suffered damages as a result of his
inability to lease the mobile homes located on the parcels of property because of
the County’s intentional failure to issue the certificates within the time limits
required by law. [Emphasis added].
Navar brought causes of action for wrongful taking of personal property, for violation of the
constitutional prohibition against retroactive laws, and for declaratory relief. As mentioned
above, the County responded by filing a plea to the jurisdiction, which the trial court denied.
STANDARD OF REVIEW
A plea to the jurisdiction based on governmental immunity challenges a trial court’s
subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004). Whether a trial court has subject-matter jurisdiction is a question of law subject to
de novo review on appeal. Id. at 226, 228. In determining whether the plaintiff has carried his
burden to allege facts sufficient to establish subject-matter jurisdiction, we review the allegations
in the pleadings—accepting them as true and construing them in the plaintiff’s favor—and any
evidence relevant to the inquiry. Id. at 226-27. If the evidence raises a fact question on
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jurisdiction, the plea must be denied. Miranda, 133 S.W.3d at 227-28. But if the pleadings
affirmatively negate jurisdiction, the plea must be granted. Id. at 226-27.
GOVERNMENTAL IMMUNITY
The County, as a political subdivision of the state, is entitled to governmental immunity
from a suit for money damages unless its immunity has been waived. City of Houston v. Carlson,
451 S.W.3d 828, 830 (Tex. 2014). Without this waiver, courts have no jurisdiction to adjudicate
any claim against the County. Id. It is Navar’s burden to establish the County’s consent to be
sued through a waiver of immunity. Id.
REGULATORY TAKING
In its first issue, the County concedes governmental immunity from suit does not shield it
from an action for compensation under the takings clause. See Gen. Servs. Comm’n v. Little-Tex
Insulation Co., Inc., 39 S.W.3d 591, 598-99 (Tex. 2001)(noting that governmental immunity
“does not shield the State from an action for compensation under the takings clause”); Steele v.
City of Houston, 603 S.W.2d 786, 791 (Tex. 1980)(“The Constitution itself is the authorization for
compensation for the destruction of property and is a waiver of governmental immunity for the
taking, damaging or destruction of property for public use.”). But the County argues Navar failed
to allege a viable takings claim under Article I, Section 17 of the Texas Constitution, which
provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public
use without adequate compensation being made . . . .” TEX.CONST. art. I, § 17. We disagree.
Applicable Law
Navar pled that the County’s “conduct constitutes a regulatory taking.” “A regulatory
taking is a condition of use ‘so onerous that its effect is tantamount to a direct appropriation or
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ouster.’” City of Houston, 451 S.W.3d at 831 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S.
528, 537, 125 S.Ct. 2074, 2081, 161 L.Ed.2d 876 (2005)). On appeal, Navar contends that his
taking theory is viable under either the Penn Central unreasonable-interference test or the
Nollan/Dolan exaction test.
The Nollan/Dolan exaction test was fashioned by the Supreme Court in Nollan v.
California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d. 677 (1987), and Dolan v.
City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Under this test,
“conditioning government approval of a development of property on some exaction is a
compensable taking unless the condition[:] (1) bears an essential nexus to the substantial
advancement of some legitimate government interest[;] and (2) is roughly proportional to the
projected impact of the proposed development.” Town of Flower Mound v. Stafford Estates Ltd.
Partnership, 135 S.W.3d 620, 634 (Tex. 2004)(describing and employing the Nollan/Dolan test).
The Penn Central unreasonable-interference test was created by the Supreme Court in
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).
Under this test, a regulatory taking occurs when government action unreasonably interferes with a
landowner’s use and enjoyment of the property. Sheffield Dev. Co., Inc. v. City of Glenn Heights,
140 S.W.3d 660, 671-72 (Tex. 2004)(describing and employing the Penn Central test). But the
test is not formulaic. Id. at 672-73. Instead, it is an ad-hoc, fact-intensive inquiry. Id.
Nonetheless, “[w]hile each case must therefore turn on its facts, guiding considerations can be
identified,” including: (1) “the economic impact of the regulation on the claimant;” (2) “the
extent to which the regulation has interfered with distinct investment-backed expectations;” and
(3) “the character of the governmental action.” Id. at 672, quoting Connolly v. Pension Benefits
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Guar. Corp., 475 U.S. 211, 225, 106 S. Ct. 1018, 1026, 89 L.Ed.2d 166 (1986).
Although Navar posits that his regulatory-taking claim is viable under either the Penn
Central unreasonable-interference test or the Nollan/Dolan exaction test, it is evident from the
argument advanced in his brief—which we reproduce verbatim—that he is proceeding under the
theory that the County’s conduct constitutes a taking under Penn Central:
The [County]’s conduct, as alleged, was intentional and constituted an
unreasonably interfered [sic] with [his] right to use and enjoy his property. The
economic impact and the extent to which the regulation interfered with [his]
investment backed expectations was severe. Without utility service, [he] cannot
rent any of the trailers on his property. And, the character of the County’s action
weighs heavily against the County, because the County has failed to articulate any
legitimate basis whatsoever for refusing to issue the certificates even though
adequate facilities had been installed for decades.
Accordingly, our task is to determine whether Navar has alleged a Penn Central claim.
Construing the pleadings in favor of the party asserting jurisdiction, we conclude that he has.
Discussion
Navar’s petition adequately alleges that the County’s refusal to issue certificates of
compliance to him without a legitimate basis unreasonably interfered with his right to use and
enjoy his property as a mobile home park. He alleges specifically how his current, existing use of
the property is circumscribed by the County’s illegitimate conduct, i.e., he was unable to lease
mobile homes, as well as how he was harmed, i.e., loss of rental income. These allegations,
though bare, touch upon the three Penn Central factors: (1) economic impact; (2)
investment-backed expectation; and (3) character of government action. Lost profits are one
relevant factor to consider in assessing the severity of the economic impact of government action,
especially when the property affected has had a proven, profitable use at the time of the
government action. See Sheffield Dev. Co., 140 S.W.3d at 677; Mayhew v. Town of Sunnyvale,
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964 S.W.2d 922, 935-38 (Tex. 1998). Indeed, “[t]he existing and permitted uses of the property
constitute the ‘primary expectation’ of the landowner that is affected by the regulation.” Hearts
Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012)(quoting Mayhew, 964 S.W.2d
at 936). Here, it is undisputed that Navar was using, and was permitted to use, the property as a
mobile home park when the County refused to issue the permits. And, although Navar does not
specify how much rental income he lost, there is no doubt that the County’s failure to issue
certificates for “many years” made it economically impossible for Navar’s lots to generate income.
As for the character of the government action, Navar alleged the County acted illegitimately.
The concurrence, relying on City of Houston, concludes Navar’s claims of “without cause”
and “without any legitimate basis” fail to allege a Penn Central claim because he is not asserting
that Chapter 232 of the Texas Local Government Code or its application constituted a regulatory
taking but rather that the County’s misapplication of Chapter 232 did. However, City of Houston,
stands for the proposition that a challenge to a procedural regulation does not equate to a
regulatory taking when the party objects only to the “infirmity of the process.” See City of
Houston, 451 S.W.3d at 832-33.
In City of Houston, the City of Houston declared a condominium complex uninhabitable
and posted notice that the affected owners would have to obtain certificates of occupancy. See id.
at 829-30. The posted notice warned that “[f]ailure to comply with this notice may subject you to
a municipal court citation.” See id. at 830. The owners did not seek certificates of occupancy,
but the City did not issue citations to the owners for failing to obtain the certificates. See id.
Instead, the City ordered all residents to vacate the premises. See id. Proceeding under the
theory that their property was taken when they were ordered to vacate, a group of owners sued the
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City for inverse condemnation. See City of Houston, 451 S.W.3d at 830. The City filed a plea to
the jurisdiction, which was granted by the trial court. See id. On appeal, the trial court’s
decision was affirmed by the Texas Supreme Court, which held that the owners had not alleged a
regulatory taking. See id. at 831-33. In so holding, the Supreme Court concluded that the
owners were, in fact, challenging the procedure used by the City, not a land-use restriction,
because their complaints were directed at the penalty imposed and the manner in which the City
enforced its standards. See id. at 832. The court observed that the owners had not contested any
of the City’s various codes or property-use restrictions or argued it was unreasonable to require
multi-family residential facilities to obtain occupancy certificates. See id. at 831.
Here, by contrast, Navar’s complaint against the County does not relate solely to the
infirmity of the process. Although Navar does complain about the penalty imposed upon him and
the manner in which the County enforced its standards, i.e., demanding that he relocate the mobile
homes and reconstruct the water, sewage, gas, and electric facilities on the property, he is also
arguing that it was unreasonable to require mobile home operators to comply with standards not
previously pronounced or enforced to obtain the certificates required by Chapter 232, when those
mobile home operators had previously obtained the certificates without issue. In other words,
Navar is alleging, in part, that the County affected a regulatory taking by revoking the property’s
grandfathered status. By proceeding under such a theory, Navar has properly pled a regulatory
taking. See City of Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178, at *7 & n.12,
*8 (Tex.App.--Houston [14th Dist.] Jan. 13, 2015, no pet.)(concluding that the trial court did not
err in denying the City’s plea with regard to claim that City affected a regulatory taking by
improperly relying on certain zoning standards to revoke the property’s “‘grandfathered’
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non-conforming status”).
The County advances two reasons why Navar’s takings claim is not viable. Neither one is
persuasive.
First, the County asserts that Navar has failed to state a cause of action for inverse
condemnation under the Texas Constitution. Inverse condemnation occurs when property is
taken for public use without proper condemnation proceedings and the property owner attempts to
recover compensation for that taking. City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646
(Tex. 1971). To plead inverse condemnation, a plaintiff must allege: (1) an intentional
governmental act; (2) that resulted in his property being taken, damaged, or destroyed; (3) for
public use. Little-Tex Insulation Co., 39 S.W.3d at 598. The County contends Navar did not
meet elements two and three. But Navar pled the County’s conduct constituted a regulatory
taking, which, as noted above, is a viable theory of compensable takings recognized by the Texas
Supreme Court. See Sheffield Dev. Co., 140 S.W.3d at 669-72. Thus, Navar was not required to
plead the elements of a traditional inverse condemnation claim.
Second, the County asserts that Navar has failed to allege a regulatory taking. Citing State
v. Biggar, 873 S.W.2d 11, 13 (Tex. 1994), and City of Austin v. Teague, 570 S.W.2d 389, 393
(Tex. 1978), the County contends no regulatory taking occurred because Navar did not allege the
County acted to gain an unfair advantage against his economic interest. But the “unfair
advantage” theory is not the only recognized theory of a regulatory taking. Another theory of
regulatory takings recognized by the Texas Supreme Court is the one pled by Navar in this
case—the Penn Central claim. The County also contends no regulatory taking occurred because
the County’s conduct did not deprive Navar of all the beneficial use of the land. But the case the
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County cites to support its contention—Sheffield Dev. Co.—also cautions that “the economic
impact of a regulation may indicate a taking even if the landowner has not been deprived of all
economically beneficial use of his property.” 140 S.W.3d at 672. Thus, Navar was not required
to allege that the County’s conduct deprived him of all economically beneficial use of his property.
Finally, the County contends no regulatory taking occurred because it substantially advanced a
legitimate state interest. To support its contention, the County cites Nollan. But, as discussed
above, the Nollan/Dolan exaction test is not the theory of a regulatory taking that supports Navar’s
takings claim. Accordingly, Navar was not required to plead that the County’s approval did not
bear an essential nexus to the substantial advancement of some legitimate government interest.
The County’s first issue is overruled.
CONSTITUTIONAL PROHIBITION AGAINST RETROACTIVE LAW
In its second issue, the County argues the trial court erred by failing to dismiss Navar’s
claim that the County’s “conduct violates Article I, Section 16 of the Texas Constitution.” We
agree.
Applicable Law
Article I, section 16 of the Texas Constitution provides, “No bill of attainder, ex post facto
law, retroactive law, or any law impairing the obligation of contracts, shall be made.”
TEX.CONST. art. I, § 16. A law is unconstitutionally retroactive if it takes away or impairs rights
that have already accrued under existing laws. See Railroad Comm’n of Texas v. Pend Oreille Oil
& Gas Co., Inc., 817 S.W.2d 36, 47 (Tex. 1991); McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898,
900 (1955).
Discussion
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The County is immune from Navar’s retroactive law claim. Navar does not allege that
Section 232.0028 sanctioned the retroactive interference with his existing leases. Instead, Navar
challenges the County’s “conduct” under this statute. Indeed, in his appellate brief, Navar
acknowledges that his complaint concerns the County’s insistence that he “alter the mobile home
locations and reconstruct the water, sewage, gas, and electric facilities, which had been in place for
many years and which had been serving Mr. Navar’s tenants under lease contracts.” Because
Navar does not challenge the governing statute, he has not alleged a retroactive law claim.
Further, Navar’s claim affirmatively demonstrates that it is barred by governmental immunity.
Accordingly, he is not entitled to an opportunity to amend. See Miranda, 133 S.W.3d at 226-27.
The County’s second issue is sustained.
DECLARATORY JUDGMENT
In its third issue, the County contends the trial court should have dismissed Navar’s claim
requesting a declaration of his rights with respect to the issuance of the certificates of compliance.
We agree.
Applicable Law
The Declaratory Judgments Act provides that a person whose rights, status, or other legal
relations are affected by a statute or ordinance “may have determined any question of construction
or validity arising under” the statute or ordinance and obtain a declaration of his rights, status, or
other legal relations thereunder. TEX.CIV.PRAC.&REM.CODE ANN. § 37.004(a)(West 2015).
The Act waives governmental immunity against claims that a statute or ordinance is invalid. City
of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). But it does not waive immunity
against claims seeking a declaration of the claimant’s statutory rights. Tex. Dep’t of Transp. v.
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Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)(per curiam). The Act also does not waive a
governmental entity’s immunity against a claim that government actors have violated the law.
Heinrich, 284 S.W.3d at 372-73.
Discussion
The County is immune from Navar’s declaratory judgment claim. In his first amended
petition, Navar:
[S]eeks to have a declaration of rights or legal relations in respect to the issuance of
certificates of compliance affecting his real property, and requests that the court
declare Plaintiff’s entitlement to the issuance [sic] said certificates.
On appeal, Navar characterizes his declaratory judgment claim in a similar vein:
[A] declaration of rights or legal relations as between him and the County in respect
to the issuance of certificates of compliance affecting his real property and the
determinations made under Section 232.028 of the Local Government Code . . . .
Navar’s claim, broadly construed, is one for declarations of his statutory rights and that County
officials have violated the law. As discussed above, the County is immune from these types of
claims.1 See Sefzik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at 372-73. Further, Navar’s claim
affirmatively demonstrates that it is barred by governmental immunity. Accordingly, he is not
entitled to an opportunity to amend. See Miranda, 133 S.W.3d at 226-27.
The County’s third issue is sustained.
CONCLUSION
Because the trial court lacks jurisdiction over Navar’s retroactive law claim and
declaratory judgment claim, we vacate the trial court’s order denying the County’s plea to the
1
To the extent Navar is seeking a declaration that Luis Rodriguez’s past actions were inconsistent with Section
232.028, governmental immunity would bar any such claim. The ultra vires exception to governmental immunity
permits only prospective, as opposed to retroactive, declaratory relief. Heinrich, 284 S.W.3d at 374-77. Navar’s
request for a declaration regarding past actions taken by Luis Rodriguez does not seek any prospective declaratory
relief.
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jurisdiction as to these claims and render judgment dismissing them. In all other respects, we
affirm the trial court’s order.
August 7, 2015
YVONNE T. RODRIGUEZ, Justice
Before Rodriguez, J., Hughes, J., and Barajas, Senior Judge
Barajas, Senior Judge (Sitting by Assignment)
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the County of El Paso v. Joel Navar
Combined Opinion