City of Port Arthur, Texas and Alberto Elefano, in His Official Capacity v. Kirk C. Thomas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-21-00111-CV
________________

CITY OF PORT ARTHUR, TEXAS AND ALBERTO ELEFANO,
IN HIS OFFICIAL CAPACITY,
Appellants

V.

KIRK C. THOMAS, Appellee
________________________________________________________________________

On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-206469
________________________________________________________________________

OPINION

Kirk C. Thomas sued the City of Port Arthur, Texas (“the City”) and Alberto

Elefano, the City’s Director of Public Works, (collectively, “Appellants”) when

Appellants attempted to enforce ordinances regulating the use of heavy vehicles on

a city street adjacent to his property. Thomas operated a landfarm where he disposed

of water-based drilling mud from oil and gas operations. Thomas complains that

1
Appellants’ enforcement effectively prevented his customers from disposing of the

drilling mud by cutting off the only access to his property, and the City singled him

out for disparate treatment. Thomas further contends that to the extent Appellants’

enforcement attempts interfere with his landfarming operations they are expressly

preempted by Texas Natural Resources Code section 81.0523. See Tex. Nat. Res.

Code Ann. § 81.0523. Thomas sued the City for injunctive relief asserting multiple

causes of action and Elefano in his official capacity for ultra vires actions.

Appellants appeal the trial court’s denial of their Amended Plea to the Jurisdiction.

In two issues and multiple sub-issues, Appellants challenge the trial court’s denial

of their Amended Plea to the Jurisdiction on each of Thomas’s causes of action and

challenge the trial court’s jurisdiction to provide equitable relief by enjoining the

City’s enforcement of a penal ordinance. For the following reasons, we will affirm

in part and reverse and render in part.

I. Factual Background

Thomas owns a tract of land in Port Arthur that has been in his family since

around 1913. Thomas estimated twenty to twenty-five oil and gas pipelines run

through the property. Recently, Enterprise began building a pipeline through Port

Arthur, and a portion of that pipeline runs through Thomas’s property. In 2018 or

2019, Thomas began using his property for landfarming, which is the process of

disposing of used drilling mud onto the ground and working or tilling it into the soil.
2
The Texas Railroad Commission (“RRC”) regulates the landfarming process, and

companies generating the drilling mud must obtain a RRC permit to landfarm at a

particular location. Likewise, the contractors disposing of the drilling mud and their

haulers must obtain waste hauler permits.

Historically and primarily, prior to 2018, Thomas’s property had been

accessed in two ways. The first route came off West Port Arthur Road and used a

wooden bridge to cross a canal. The second route also came off West Port Arthur

Road, crossed a set of railroad tracks, then proceeded across Valero-owned property

containing a pipeline corridor, and finally, onto a “white bridge” (built by Thomas)

crossing over a Lower Neches Valley Authority (“LNVA”) canal. 1 It should be

noted that West Port Arthur Road was approved for heavy load trucking by the City

of Port Arthur. Thomas explained that in the past, trucks accessed his property by

the wooden bridge but described the activity as “fairly minimal.” These two routes

were problematic for heavy truck traffic for several reasons. Thomas testified that

the old “wooden bridge” had fallen into disrepair and had been condemned. Thomas

testified that the second route crossing the white bridge was not an option, as loaded

1The record also briefly mentions pipeline companies accessing the property
by “matting in” from Highway 365. This was not discussed in detail, and while it
happened before they began using a third route via another street, Sassine Avenue,
to access the property, the exact time period the companies “matted in” from
Highway 365 or from what location off of Highway 365 is unclear.
3
eighteen-wheelers had difficulty crossing the tracks due to the slope, and he relayed

an instance where one loaded truck had become stuck on the tracks and another truck

had flipped. Additionally, although Valero had not officially prohibited him bringing

heavy trucks across the pipeline corridor, they did not like heavy trucks going across

the pipelines. Finally, LNVA had provided Thomas a use agreement when he built

the “white bridge” over the canal, which was limited to regular vehicles and did not

allow for loaded heavy trucks to cross. Thomas explained, “LNVA did put

restrictions on it. They didn’t say never do anything, never haul anything across it.

There is occasional times that we have and we do. But, they don’t want heavy traffic

being that I built it and it is a private access they granted to me.”

The third route, and the one in dispute, involved heavy trucks using Sassine

Avenue, a residential street, to access Thomas’s property to deposit the drilling mud

for the landfarming activities. However, it should be noted that Sassine Avenue

(Sassine) is not approved for heavy load trucking by the City of Port Arthur. For

years, there was no access from Sassine onto Thomas’s property, as Thomas did not

own the adjacent lots until 2007. Thomas testified he purchased these lots so he

could access the property from Sassine. Further, photographic evidence shows a

heavily wooded area between Sassine and the canal created a barrier preventing

vehicles from accessing Thomas’s property. After Thomas purchased the lots in

2007 but before the driveway was built in 2018, Thomas or contractors cleared the
4
land and installed mats, temporarily allowing trucks to enter the lots and then his

property after coming in from Sassine.

Thomas testified that the pipeline companies accessed property he used for

his landfarming operation via the lots off Sassine, and they occasionally brought in

heavy indivisible loads containing equipment to work on the pipelines. Thomas

testified that if contractors needed to come onto his property before he and Florida

Gas built the driveway connecting to Sassine, they used Sassine and matted in.

However, once Thomas and Florida Gas built the driveway connecting Thomas’s

property to Sassine, matting was no longer required.

In 2018, when Enterprise began constructing the pipeline relevant to

Thomas’s operation of his landfarm, Larrett Energy was the contractor performing

the work. Larrett obtained a RRC permit for the project’s drilling mud disposal and

contracted with Thomas to dispose of the drilling mud generated by the construction

of the pipeline. Larrett’s representative, Daniel Eklund, testified he was familiar

with the pipeline route, and in his opinion, to fulfill his contract with Thomas there

were no other routes except Sassine that were not “hindersome or cumbersome” to

what they were trying to haul; other routes were less desirable because they would

have to resort to hauling small amounts or use roads that could not handle the weight.

In early 2020, residents living on Sassine complained to the City about the

frequent heavy truck traffic on the street. The City, through Elefano, sent a “cease
5
and desist” letter for the heavy truck traffic on Sassine and cited City Ordinances

106-7 and 106-8.

Thomas testified that upon receiving the cease and desist letter, he went to the

City to determine what needed to be done. Additionally, Eklund on behalf of Larrett

emailed Elefano, apologized for the unpermitted use of Sassine, and he requested a

permit. Elefano advised Eklund that unless every resident on Sassine approved the

heavy trucks, Larrett could not use that route to access Thomas’s property. In his

affidavit supporting the City’s Amended Plea to the Jurisdiction, Elefano claimed he

misspoke and was mistaken when he said this.

The City ordinances at issue govern the use of streets by commercial vehicles

and the use of certain designated roadways by construction companies. Section 106-

7 governing the use of City streets by commercial vehicles provides:

(a) The chief of police, or his designee and the director of public works
are authorized to determine and designate those streets upon which
commercial vehicles exceeding 10,000 pounds may be prohibited from
operating.

(b) The chief of police and the director of public works are authorized
to determine and designate those statutes [sic] on which the through
movement of tracks [sic] between the streets is prohibited.

(c) Motor buses or vans may be operated on any of the above-
designated streets for the transportation of passengers.

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Port Arthur, Tex., Code of Ordinances ch. 106, art. I, § 106-7 (1961). Section 106-8

governs the use of certain designated roadways by construction companies and

provides:

(a) Notwithstanding the provisions of subsection 106-7(a), no person
shall operate construction equipment and vehicles in excess of the legal
load limits on streets other than those designated for commercial
vehicles, except in accordance with following provisions: In connection
with the following agreement, the applicant shall furnish at his expense
a corporate surety performance bond, as set forth in the prescribed
agreement, in an amount determined by the department of public works,
based on the estimated cost to the city, at the time of the agreement, for
materials, labor and equipment which would be reasonably necessary
to reconstruct the particular roadway covered by the agreement, i.e., the
city’s prevailing contract cost of like materials, the city’s prevailing
salary costs and the city’s prevailing schedule of operating costs and/or
the prevailing rental costs of equipment. Contractors desiring to operate
construction equipment and heavy trucks exceeding 10,000 pounds
gross weight, but not to exceed 48,000 pounds gross weight or 18,000
pounds axle weight on streets other than designated truck routes, shall
first make application with the director of public works, specifying the
particular area of construction and the time necessary to complete the
work. Upon receipt, the director of public works shall ascertain and
designate the particular roadways capable of sustaining the excess load
and the duration, and thereafter cause to be executed an agreement
between the contractor and the city.

(b) Any person who violates any provision of this section, or who shall
fail or neglect to comply with the terms of this section, shall be deemed
guilty of a misdemeanor and shall, upon conviction, be fined not less
than $100.00, nor more than $200.00.

Id. § 106-8.

Even though these ordinances existed, Elefano testified that he had not issued

any road use permits for anyone before Thomas, and the process was “relatively
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informal.” In early 2020, when the City became aware through citizen complaints of

the heavy trucks on Sassine, it sent a letter to Thomas informing him a permit would

be required to operate heavy trucks on Sassine. Given the “relatively informal”

process at the time, Thomas provided information about the project and its duration.

In response, the City gave Thomas written authorization to use Sassine for heavy

truck hauling for ten days and required him to post a $150,000 bond. Thomas

completed that project within the ten days, after which the City tried to collect on

Thomas’s $150,000 bond. However, the bonding company denied the City’s claim,

contending the City failed to prove Thomas’s trucks were the cause of the damages

the City occurred to its street.

Elefano averred in his affidavit that in the fall of 2020, neighbors again began

complaining of heavy trucks hauling materials to and from Thomas’s property via

Sassine and expressed concerns the heavy traffic was damaging the street. Elefano

also swore that neither Thomas nor any other contractor had obtained a permit to use

Sassine for heavy truck traffic. The City’s police department began issuing citations

to unauthorized trucks operating on Sassine. In October 2020, Eklund contacted

Elefano after one of its drivers received a citation and apologized for operating

without a permit in violation of the City’s ordinance. To address the neighbors’

concerns, Elefano asked Eklund to seek the neighbors’ approval, but in his affidavit

he also claimed he “misspoke by suggesting that the City would not entertain a
8
permit for the use of the street without neighbor approval.” Elefano then stated in

the affidavit that instead of applying for a permit, Thomas filed this lawsuit, and

during the legal proceedings was permitted to use Sassine for heavy traffic through

February 11, 2021, when he was then required to apply for and obtain a permit. Even

after February 11, Elefano received complaints from the residents who live in houses

adjacent to Sassine that Thomas continued to operate heavy trucks on Sassine in

violation of City ordinances.

Once the dispute with Thomas arose and given the City’s inability to collect

the bond to repair the roads, the City updated the form it used to issue permits

allowing heavy trucks to use City streets. In his affidavit, Elefano explained the

updated forms “are intended to gather necessary information about the use of the

roads and duration of the project, the specific trucks that will be engaged in hauling,

and the condition of the road prior to the start of the project.” The application does

not address whether the residents living next to Sassine must approve this type of

permit.

In November 2020, the trial court issued a temporary injunction to allow the

permit process to play out. In March 2021, Thomas’s attorney submitted the updated

application, striking through portions and changing some of the language, while

listing several objections, which assert that some of the applications’ terms are

unreasonable. Elefano responded that the application was “administratively
9
incomplete,” and he advised it omitted necessary information, which he asked

Thomas to provide. On the other hand, Thomas claims he completed the application,

and the City’s refusal process the permit amounts to the denial of his application.

In response to Thomas’s claim that the City has not equally applied its heavy

truck ordinances, Elefano averred that the City had not permitted any other company

to use Sassine to haul heavy loads on an unlimited, ongoing basis. Elefano

acknowledged the City had given Enterprise a pipeline permit, but that permit did

not grant road use to trucks that “do not otherwise comply with the City’s

ordinances” and had not granted Enterprise a permit to operate trucks exceeding

48,000 pounds on Sassine. Elefano also distinguished Thomas’s use of Sassine from

a resident who lived on the street (Mr. Artola) who operated a dump truck company,

averring that the resident “drives the trucks empty on Sassine for the sole purpose of

leaving and returning to his residence[,]” unlike Thomas’s use, “which involves

repeated hauling of heavy loads up and down Sassine.” Elefano averred that the

street “was not designed to sustain prolonged hauling activities and on which the

City has observed significant damages” since Thomas began his hauling operations,

which included running as many as thirty loaded trucks a day. Elefano testified the

City received specific citizen complaints that Thomas’s business operation was

damaging Sassine and to his knowledge had not received similar complaints about

other operators. Elefano also averred that Thomas’s property had entry access from
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West Port Arthur Road prior to having driveway access to Sassine, and photographs

showed heavy trucks parked on the property at that time. Finally, Elefano averred

the City has not restricted Thomas’s use of, or access to, his property, which remains

accessible to “all routine traffic from West Port Arthur Road and Sassine Avenue.”

Thomas testified that Mr. Artola’s dump trucks weighed approximately

25,000 pounds when empty. Although Thomas testified he believed Artola’s trucks

were rated for 70,000 pounds, he could not identify anyone who runs 80,000-pound

vehicles up and down Sassine between fifteen and thirty times per day. Elsewhere

in his testimony Thomas identified vehicles that weighed 80,000 pounds making

thirty trips on Sassine in a given day, including Primoris, Larrett, and Florida Gas.2

However, he testified that when Florida Gas was constructing a new pipeline on his

property, they had 120,000-pound loads that went in and out continuously for

months.

Thomas testified that the State’s permit limit for the mud trucks was 80,000

pounds. Some testimony provided during the hearings on the Plea to the Jurisdiction

indicated that the trucks loaded with drilling mud weighed 80,000 pounds, while

other testimony indicated the trucks weighed 50,000 pounds. Thomas testified it was

2This testimony is unclear as to whether he was describing companies hauling
mud for landfarming or whether he was referring to separate pipeline construction
activities.
11
possible to reduce the truck loads to 48,000 pounds to comply with the ordinance,

but it was financially irresponsible and would double or triple the heavy truck traffic

on Sassine.

II. Pleadings and Procedural Posture

In October 2020, Thomas initially sued the City seeking injunctive relief,

which the trial court initially granted but ultimately allowed to expire. His Fourth

Amended Petition was the live pleading when the Plea to the Jurisdiction hearing

occurred. In that Petition, Thomas pleaded causes of action for tortious interference,

violations of the Equal Protection Clause and alternatively, inverse condemnation

and regulatory taking, declaratory relief against both defendants, ultra vires actions

against Elefano, and Thomas sought to enjoin City’s enforcement of the ordinances.3

Thomas complains that Appellants “are enforcing the City’s ordinances 106-

7 and 106-8 against Plaintiff in a manner that is pre-empted by state law and/or

violates Plaintiff’s right to Equal Protection under the Texas Constitution.” He “does

not seek to completely invalidate the Ordinances in question,” rather he “is seeking

injunctive relief against [Appellants’] enforcement of the Ordinances” in a

“commercially unreasonable” manner which “effectively prohibits an oil and gas

activity on Plaintiff’s land in violation of the preemptive effect of state statutory law

3Thomas subsequently nonsuited his tortious interference claim.
12
and violates Plaintiff’s right to Equal Protection under the Texas Constitution.”

Thomas also alleges that Appellants granted permits to other similarly situated

parties for loads over 10,000 pounds and some over 48,000 pounds without imposing

the same requirements. Thomas asserts the most unreasonable condition of the

permit application is that “residents on or near Sassine have to agree to the operation

of heavy trucks by Plaintiff’s customers.” According to Thomas, the City’s

“enforcement of the Ordinances is commercially unreasonable and effectively

prohibits oil and gas operations.”

In their Amended Plea to the Jurisdiction, Appellants contend that immunity

barred Thomas’s claims, the pleadings and jurisdictional evidence did not establish

valid waivers of immunity, the takings claims were not ripe, and they challenged the

trial court’s ability to provide equitable relief by enjoining the City’s enforcement

of penal ordinances. Appellants attached evidence to their Plea, including Elefano’s

affidavit, hearing testimony, the ordinances, Thomas’s permit application and

objections, and photographs of Thomas’s property. The trial court also conducted a

hearing where it heard live testimony and admitted the parties’ various exhibits.

III. Standard of Review

Sovereign immunity from suit defeats the trial court’s subject matter

jurisdiction and is properly raised in a plea to the jurisdiction. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A court may not decide
13
a case unless it has subject matter jurisdiction over the dispute. Id. at 226. A plea to

the jurisdiction challenges the trial court’s power to exercise subject matter

jurisdiction over a claim. Id.; see also City of Waco v. Kirwan, 298 S.W.3d 618, 621

(Tex. 2009).

We review a trial court’s ruling on a plea to the jurisdiction using a de

novo standard. See State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda,

133 S.W.3d at 226. A plea to the jurisdiction is a dilatory plea typically used to defeat

a plaintiff’s cause of action without regard to whether the claims have merit. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In our review, we look

first to the plaintiff’s petition and liberally construe the pleadings to determine the

pleader’s intent. See Holland, 221 S.W.3d at 642–43. We may also consider

evidence in the record when it is pertinent to any relevant jurisdictional

facts. See id. at 643; Bland, 34 S.W.3d at 555. “A plea should not be granted if a fact

issue is presented as to the court’s jurisdiction, but if the relevant undisputed

evidence negates jurisdiction, then the plea to the jurisdiction must be

granted.” Holland, 221 S.W.3d at 643 (citing Miranda, 133 S.W.3d at 227–

28). When “evidence is presented with a plea to the jurisdiction, the court reviews

the relevant evidence and may rule on the plea as a matter of law if the evidence

does not raise a fact issue on the jurisdictional question, a standard that generally

mirrors the summary-judgment standard.” Harris Cty. Flood Control Dist. v. Kerr,
14
499 S.W.3d 793, 798 (Tex. 2016) (citing Miranda, 133 S.W.3d at 227–28). While

we are mindful of this standard, we recognize we should not delve “so far into the

substance of the claims presented that plaintiffs are required to put on their case

simply to establish jurisdiction.” See Bland, 34 S.W.3d at 554.

IV. Analysis

A. Governmental Immunity Generally

Governmental immunity protects the state’s political subdivisions, including

cities and their officers, from liability. Hous. Belt & Terminal Railway Co. v. City of

Houston, 487 S.W.3d 154, 157 (Tex. 2016). The reason for this is that “it shields

‘the public from the costs and consequences of improvident actions of their

governments.’” Id. (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.

2006)). However, in limiting immunity courts have reasoned that “extending

immunity to officials using state resources in violation of the law would not be an

efficient way of ensuring those resources are spent as intended.” City of El Paso v.

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Accordingly, governmental immunity

will not bar claims that a government officer acted ultra vires, or without legal

authority, in carrying out his duties. Hous. Belt, 487 S.W.3d at 157–58. Absent a

statutory waiver of immunity by the Legislature, a plaintiff can proceed against the

government only if an official’s actions were ultra vires. See Hall v. McRaven, 508

S.W.3d 232, 238 (Tex. 2017) (noting same in context of a regent’s complaint against
15
a university’s chancellor who withheld certain information pursuant to his

interpretation of federal privacy laws).

B. Preemption and Texas Natural Resources Code Section 81.0523

Also at issue in this case is Texas Natural Resources Code section 81.0523,

entitled “Exclusive Jurisdiction and Express Preemption.” Tex. Nat. Res. Code Ann.

§ 81.0523. That section provides as follows:

(a) In this section:

(1) “Commercially reasonable” means a condition that would
allow a reasonably prudent operator to fully, effectively, and
economically exploit, develop, produce, process, and transport
oil and gas, as determined based on the objective standard of a
reasonably prudent operator and not on an individualized
assessment of an actual operator’s capacity to act.

(2) “Oil and gas operation” means an activity associated with the
exploration, development, production, processing, and
transportation of oil and gas, including drilling, hydraulic
fracture stimulation, completion, maintenance, reworking,
recompletion, disposal, plugging and abandonment, secondary
and tertiary recovery, and remediation activities.

(b) An oil and gas operation is subject to the exclusive jurisdiction of
this state. Except as provided by Subsection (c), a municipality or other
political subdivision may not enact or enforce an ordinance or other
measure, or an amendment or revision of an ordinance or other
measure, that bans, limits, or otherwise regulates an oil and gas
operation within the boundaries or extraterritorial jurisdiction of the
municipality or political subdivision.

(c) The authority of a municipality or other political subdivision to
regulate an oil and gas operation is expressly preempted, except that a

16
 municipality may enact, amend, or enforce an ordinance or other
measure that:

(1) regulates only aboveground activity related to an oil and gas
operation that occurs at or above the surface of the ground,
including a regulation governing fire and emergency response,
traffic, lights, or noise, or imposing notice or reasonable setback
requirements;

(2) is commercially reasonable;

(3) does not effectively prohibit an oil and gas operation
conducted by a reasonably prudent operator; and

(4) is not otherwise preempted by state or federal law.

(d) An ordinance or other measure is considered prima facie to be
commercially reasonable if the ordinance or other measure has been in
effect for at least five years and has allowed the oil and gas operations
at issue to continue during that period.

Id. While section 81.0523 expressly preempts municipal regulation of oil and gas

operations, it has carved out an exception that includes a municipality’s ability to

enact or enforce an ordinance regulating traffic or noise. See id. § 81.0523(c)(1).

However, the municipal enforcement of a traffic ordinance must be “commercially

reasonable” as defined in the statute and cannot prohibit an oil and gas operation

conducted by a reasonably prudent operator. See id. § 81.0523(c)(2), (3).

Incorporated into the definition of “commercially reasonable” is the notion that a

“reasonably prudent operator” should be allowed to “fully[]” and “economically”

engage in his operation. See id. § 81.0523(a)(1). The questions we must ask are: (1)

17
whether the City’s ordinance and its enforcement are “commercially reasonable”

and (2) whether Thomas acted as a “reasonably prudent operator” of his landfarm.

With these questions in mind, we turn to our analysis.

C. Issue One: The City’s Challenges to Thomas’s Claims

In their first issue Appellants argue governmental immunity applies and ask

whether the trial court erred in denying their Plea to the Jurisdiction where Thomas

failed to prove that either the City consented to suit, a City official acted ultra vires,

or that the ordinances were facially unconstitutional. Appellants’ issue incorporates

various sub-arguments that we address below.

1. Ultra Vires and Preemption

On appeal, Appellants contend that Thomas failed to allege, and evidence

negates, any ultra vires conduct by Elefano. 4 They also argue that Texas Natural

Resources Code section 81.0523 does not preempt its ordinances, and Elefano’s

conduct comported with State laws and the Constitution.

As noted above, while governmental immunity provides broad protection to

the state and its officers, it will not bar a suit against a governmental officer for acting

4With respect to the City, governmental entities are not proper parties to ultra
vires claims. See Hall v. McRaven, 508 S.W.3d 232, 239 (Tex. 2017); City of El
Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009). Rather, a plaintiff must sue
the relevant officers in their official capacities; however, here, Elefano clearly is a
proper party, and Thomas sued him in his official capacity. See Heinrich, 284
S.W.3d at 372–73.
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outside his authority–i.e., an ultra vires suit. Hous. Belt, 487 S.W.3d at 161 (citing

Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011)). To

qualify under the ultra vires exception, a suit cannot complain of a government

officer’s exercise of discretion, “‘but rather must allege, and ultimately prove, that

the officer acted without legal authority or failed to perform a purely ministerial

act.’” Id. (quoting Heinrich, 284 S.W.3d at 372); see also Schroeder v. Escalera

Ranch Owners’ Assoc., Inc., No. 20-0855, 2022 WL 1815042, at *2 (Tex. June 3,

2022).

The Texas Supreme Court has explained:

the principle arising out of Heinrich and its progeny is that
governmental immunity bars suits complaining of an exercise
of absolute discretion but not suits complaining of either an officer’s
failure to perform a ministerial act or an officer’s exercise of judgment
or limited discretion without reference to or in conflict with the
constraints of the law authorizing the official to act. Only when such
absolute discretion—free decision-making without any constraints—is
granted are ultra vires suits absolutely barred.

Hous. Belt, 487 S.W.3d at 163 (emphasis original). While only exercises of absolute

discretion are completely protected, whether a suit attacking an exercise of limited

discretion is barred depends upon the grant of authority at issue in each case. Id. at

164. “If the challenged actions ‘were not truly outside the officer’s authority or in

conflict with the law,’ then the plaintiff has not stated a valid ultra vires claim and

governmental immunity will bar the suit.” Schroeder, 2022 WL 1815042, at *2

19
(quoting Matzen v. McLane, No. 20-0523, 2021 WL 5977218, at *4 (Tex. Dec. 17,

2021)). Said another way, an ultra vires claim based on actions taken without legal

authority has two elements: “(1) authority giving the official some (but not absolute)

discretion to act and (2) conduct outside of that authority.” McRaven, 508 S.W.3d at

239 (citation omitted).

In his Fourth Amended Petition, Thomas alleges that Elefano did not have

“absolute discretion” to refuse to allow him and his customers to operate heavy

trucks on Sassine and impose unreasonable conditions to obtain a permit or

agreement while allowing others to operate heavy trucks on other City streets

without a permit or granting permits or agreements to others without imposing the

same or commercially similar conditions as those Elefano imposed on him as the

plaintiff in the suit. Thomas alleges that as the Director of Public Works, Elefano is

required to either allow him and his customers to operate their trucks on Sassine

without a permit/agreement or to permit them on the same or commercially similar

terms as other similarly situated parties or without reference to “the constraints

placed on his discretion by the local law authorizing him to act.” Thomas further

alleges that Elefano’s conduct violated constraints placed on him by State law.

The City ordinances authorize Elefano to determine and designate streets

where commercial vehicles exceeding 10,000 pounds may be prohibited from

operating. See Port Arthur, Tex., Code of Ordinances ch. 16, art. I, § 106-7(a).
20
Elefano testified, and other evidence showed, the City had developed truck routes

where commercial vehicles exceeding 10,000 pounds could operate, and Sassine was

not included on the truck route. The other City ordinance governed certain roadways

that were not included in these truck routes, and thus, applies to Sassine. See id. §

106-8(a).

For roadways not included in the truck routes, any vehicles exceeding the

legal load limit of 10,000 pounds required the filing of an application with the

Director of Public Works, but the vehicles could not exceed a gross weight of 48,000

pounds. See id. The application must specify the area and time necessary to complete

the work. See id. Upon receipt of the application, Elefano was required to determine

and designate particular roadways capable of sustaining the excess load and duration

and then “cause to be executed an agreement between the contractor and city.” See

id. The statute also required the applicant to provide a bond in an amount set by the

Department of Public Works based on the estimated cost to the City which would

reasonably be necessary to reconstruct the covered roadway. See id.

Thomas complains that Elefano’s enforcement of this statute by requiring him

and his customers to obtain a permit or agreement when they had not made others

do so constituted an ultra vires act. Specifically, Thomas pleaded that Elefano acted

without reference to or in conflict with the constraints placed on his discretion by

the local law authorizing him to act. Thus, Thomas has pleaded an ultra vires claim
21
sufficient to invoke the trial court’s jurisdiction; however, to determine whether

Elefano acted ultra vires, we look at the ordinances granting him authority and the

jurisdictional evidence the trial court considered in the hearing. See Hous. Belt, 487

S.W.3d at 164 (noting we look to the ordinance’s language to determine whether the

plaintiff has properly alleged an ultra vires claim). The City ordinances vest Elefano,

as the Director of Public Works, with the authority to determine heavy truck routes.

The City has those routes in place, and they do not include Sassine. That same

ordinance prohibits the operation of commercial vehicles exceeding 10,000 pounds

on streets like Sassine. See Port Arthur, Tex., Code of Ordinances ch. 16, art. I, §

106-7(a). However, Thomas or his customers could apply to use Sassine to operate

trucks weighing more than 10,000 pounds as long as they did not have a gross weight

of more than 48,000 pounds. See id. § 106-8. However, rather than apply for a permit

that complied with the City’s ordinance, Thomas marked through the application

and inserted weight limits in excess of those that are in the City’s ordinance. The

ordinance further empowered Elefano to determine an appropriate bond and to

identify roadways that could potentially handle weights in excess of those in its

ordinance; however, the application required the applicant to provide the

information necessary to making that determination, information like the duration of

the project and weight of the loads. See id.

22
 The evidence included with Appellants’ Amended Plea to the Jurisdiction

established that instead of specifying duration of use, Thomas simply answered

“ongoing” and raised the weight limit on the application from 48,000 to 80,000

pounds. Thomas’s chief complaint was that he had to complete an application while

other heavy truck users in the area had not. This does not establish that Elefano acted

ultra vires. Indeed, the ordinances at issue empowered Elefano to take applications

and to determine, based on the information provided, what roads could handle the

load and the duration and establish the amount that would be required for the bond

so the parties could then execute a corresponding agreement. See id. §§ 106-7, 106-

8. The evidence that Thomas was the first person the City required to complete the

application after the City updated its forms does not mean that Elefano acted outside

his authority. The evidence, which Thomas did not dispute, established that Elefano

updated the City’s application to obtain information that he needed to determine the

amount for an appropriate bond, which the ordinance empowered him to do, and

information that would, if later necessary, aid the City in its effort to collect on the

bond.

In its next sub-issue, the City contends that Thomas cannot establish an ultra

vires claim that Elefano’s enforcement of ordinances 106-7 and 106-8 are preempted

by state law, and in essence, he acted in conflict with the law. In his Fourth Amended

Petition Thomas complains that Texas Natural Resources Code section 81.0523
23
expressly preempts the City’s authority to regulate oil and gas operations and only

allows the City to issue and enforce limited “commercially reasonable” regulations

concerning “aboveground activity[.]” Further, Thomas asserts Elefano’s conduct

amounts to “an effort to enforce an ordinance in a manner that is pre-empted by state

law.”

Section 81.0523 expressly preempts any attempts to regulate oil and gas

operations and gives the state exclusive jurisdiction. See Tex. Nat. Res. Code Ann.

§ 81.0523(b), (c). “Oil and gas operation” includes disposal and remediation

activities, among other things. Id. § 81.0523(a)(2). The statute delineates various

exceptions to the State’s preemption, including allowing municipalities to enact or

enforce traffic or noise regulations if those regulations are “commercially

reasonable” and do “not effectively prohibit an oil and gas operation conducted by

a reasonably prudent operator.” Id. § 81.0523(c). The statute defines “commercially

reasonable” as allowing a “reasonably prudent operator” to “fully, effectively, and

economically exploit” his operation and explains the determination is based “on the

objective standard of a reasonably prudent operator” rather than “an individualized

assessment of an operator’s capacity to act.” Id. § 81.0523(a)(1).

An ordinance is “considered prima facie to be commercially reasonable” if it

has been in effect for at least five years and has allowed the oil and gas operations

at issue to continue during that period. Id. § 81.0523(d). In this case, Thomas
24
contends the City’s enforcement is commercially unreasonable, while the City

counters that Thomas is not acting as a reasonably prudent operator. The City’s

ordinances at issue have been in place since 1961, although evidence adduced at the

Plea to the Jurisdiction hearing indicated that Thomas did not begin landfarming

until 2018 or 2019. In early 2020, the City advised he would not be allowed to

continue using Sassine until he acquired a permit; even, the City gave Thomas a

temporary permit, which allowed him to complete the particular landfarming project

he had underway after his customer posted a bond. Even assuming the ordinance at

issue is “commercially reasonable,” as we must, the jurisdictional evidence shows

fact issues exist regarding whether the enforcement of the ordinance is

“commercially reasonable” and whether Thomas acted as a reasonably prudent

operator. See id. § 81.0523(c)(1)–(3).

Thomas testified that the RRC permitted the waste hauling trucks that carried

the drilling mud for weights up to 80,000 pounds, and the RRC had permitted his

property for landfarm use. Thomas testified that reducing the amount of mud to the

48,000-pound threshold the City requires would cause him to double or triple the

number of loads, making it economically unfeasible and increasing traffic on the

roadway. However, Larrett’s representative, Eklund, testified that he thought their

loaded mud trucks weighed 50,000 pounds, but if the City only allowed them to haul

25
5,000 pounds of mud at a time, it would be “a tremendous extra effort” that he could

not agree to.

Eklund testified that if they could not haul mud to Thomas’s permitted site,

their drilling operations would ultimately be shut down. The customer also described

the difficulties and dangers of the loaded mud trucks using another route. He testified

that except Sassine, the other routes were “hindersome or cumbersome.” Eklund

testified that when he initially approached Elefano regarding obtaining a permit,

Elefano advised the only way he would get a permit is if all the residents on Sassine

signed off on it. Elefano does not dispute this but insists that he misspoke when he

said this, and ultimately, the Thomas’s application did not depend on its approval by

the residents next to Sassine.

The City adduced evidence that a “No Trucks” sign had been up on Sassine

for years before 2018 or 2019 when Thomas commenced his landfarming operation.

Thomas provided conflicting testimony about the “No Trucks” sign. He testified the

“No Trucks” sign had been in place since 2007, but a Sassine resident ran trucks

there anyway and elsewhere testified the sign was not installed until 2019 or 2020.

There was also evidence presented that while inconvenient, accessing Thomas’s

property from another route was possible. Thomas explained that before he built a

driveway that gave him the ability to allow heavy equipment access to his property

via Sassine, wooden mats were used to access the property from Sassine or that
26
heavy equipment accessed his property using another route, Highway 365. Further,

Thomas testified that while it was physically possible to reduce the weights of the

loaded trucks below 48,000 pounds, it was unreasonable and inefficient to do so and

would increase the number of loaded trucks required to use Sassine.

The City agreed that before Thomas’s landfarming project, the permitting

process that applied to loaded trucks truck weighting more than 10,000 pounds was

“relatively informal[,]” and that the permit Thomas obtained from the City was its

first authorizing the use of a City street for use by heavy trucks. Elefano further

explained that Thomas’s landfarming situation was unique based on the combination

of heavy loads required by his operation and the number of complaints received from

citizens about those operations. Elefano averred in his affidavit that he began

receiving complaints from residents about the heavy trucks traveling on Sassine to

Thomas’s property and first became aware of the drilling mud disposal operations

that involved the use of Sassine in 2020. Elefano also explained in his affidavit that

the City’s inability to collect on Thomas’s prior bond caused it to update the form

and process it uses to permit this type of operation. The City’s new process and its

forms ask the applicant to provide information similar to that required by the State

when seeking a permit to use a State highway, and Elefano said the information

required in its updated form should help the City enforce the ordinances and protect

27
its ability to collect on bonds so that it may repair damages caused by heavy trucks

to City streets.

Evidence established that Thomas’s family owned the land since 1913, but he

did not acquire the lots adjacent to Sassine until 2007, which for the first time

allowed access to the property from Sassine. The driveway to connect Thomas’s

property to Sassine was not built until 2018; however, no one obtained a permit to

do so. Before 2018, the pipeline companies and Thomas’s heavy trucks had to access

Thomas’s property in other ways. However, Thomas denied ever having an alternate

access to his property for his landfarming operations before he and Florida Gas built

the driveway connecting the lots he owned to Sassine, except for the “very few”

trucks Thomas acknowledged that he said had made it across the railroad tracks and

white bridge from West Port Arthur Road.

Viewing the evidence in the light most favorable to Thomas, fact issues exist

regarding whether Thomas was a reasonably prudent operator and whether Elefano

enforced the ordinances in a “commercially reasonable” manner. These fact issues

implicate the State’s preemption under Texas Natural Resources Code section

81.0523. How those questions are ultimately answered in a trial will determine the

lawfulness of Elefano’s conduct in enforcing the City’s ordinances, a matter on

which this Court expresses no opinion. But because the evidence in the hearing on

the plea demonstrates fact issues exist on the jurisdictional issues, the trial court
28
properly denied the Amended Plea to the Jurisdiction as to Thomas’s ultra vires

claim against Elefano. See Holland, 221 S.W.3d at 643 (a plea should not be granted

if a fact issue exists as to the court’s jurisdiction).

2. Declaratory Judgment Action

Appellants next contend that the Uniform Declaratory Judgments Act

(“UDJA”) does not waive immunity when a plaintiff is seeking a declaration of

rights under a statute or challenging a governmental entity’s actions under a statute

or ordinance. See generally Tex. Civ. Prac. & Rem. Code Ann. § 37.001–011. No

City ordinance “shall contain any provision inconsistent with the Constitution of the

State, or of the general laws enacted by the Legislature of this State.” Tex. Const.

art. XI, § 5. Thomas argues the City’s enforcement of its ordinances contradicts

Texas Natural Resources Code section 81.0523, which permits a City to enforce

traffic ordinances if it does so in a “commercially reasonable manner” that does not

impede the oil and gas activities of a “reasonably prudent operator.”

“[T]he 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.

Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). Specifically, the Texas

Supreme Court has explained where a plaintiff alleges a state official’s acts or

omissions trampled on his rights, the proper defendant in an ultra vires lawsuit is the

state official not the agency. See id. (citing Heinrich, 284 S.W.3d at 372–73). While
29
the UDJA waives sovereign immunity in some cases, Thomas’s claim against the

City does not fall within the scope of those express waivers. See id.; Heinrich, 284

S.W.3d at 373 n.6; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b)

(requiring municipality to be made a party if ordinance is alleged to be

unconstitutional). We agree that the City may be a proper party to a declaratory

judgment action that challenges the validity of an ordinance but not its actions under

it. See Sefzik, 355 S.W.3d at 622 (reasoning that plaintiff did not challenge the

validity of the statute, rather he challenged the agency’s actions under it). However,

Thomas expressly states in his Fourth Amended Petition that he does not seek to

invalidate the ordinances, rather he complains about the enforcement of them. Since

Thomas challenged the enforcement of the ordinances rather than their validity, we

conclude the City retains its immunity against Thomas’s UDJA claim. See id.

However, because fact issues exist regarding Elefano’s alleged ultra vires actions in

enforcing the statute under the Natural Resources Code, the trial court properly

denied the jurisdictional plea as to the UDJA claim against him. See id. at 621

(explaining UDJA claim could be brought against state official under the ultra vires

exception, but the state agency remains immune).

3. Violations of the Equal Protection Clause

Next, the City argues that it maintains immunity against Thomas’s claim for

violations of the Equal Protection Clause. Thomas pleaded that because Appellants
30
violated the Equal Protection Clause, he “had been damaged in an amount greatly

exceeding the minimal jurisdictional limit of this Court.” He also sought injunctive

relief to prevent the City from enforcing the ordinance in an unconstitutional

manner.

Claims of discriminatory or selective enforcement are based on the

constitutional guarantee of equal protection under the law. See Tex. Const. art. I, §

3. Suits for equitable or injunctive relief are permitted for constitutional violations

against the City. City of Beaumont v. Bouillion, 896 S.W.2d 143, 148–49 (Tex.

1995). This limited waiver of immunity exists only when the plaintiff has pleaded a

viable constitutional claim. City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex.

App.—Houston [14th Dist.] 2011, pet. denied). Immunity is not waived “if the

constitutional claims are facially invalid.” Klumb v. Hous. Mun. Emps. Pension Sys.,

458 S.W.3d 1, 13 (Tex. 2015).

“Like the federal constitution, the equal-protection clause of the state

constitution directs governmental actors to treat all similarly situated persons alike.”

City of Houston v. Johnson, 353 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.]

2011, pet. denied). To assert an equal protection claim, Thomas must establish that

he was treated differently than other similarly situated parties without a reasonable

basis. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998); City of

Floresville v. Starnes Invest. Grp., LLC, 502 S.W.3d 859, 868 (Tex. App.—San
31
Antonio 2016, no pet.). A plaintiff must allege that he is being treated differently

from those whose situation is directly comparable in all material respects. Starnes

Invest. Grp., LLC, 502 S.W.3d at 868; Odutayo v. City of Houston, No. 01-12-00132-

CV, 2013 WL 1718334, at *3 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no

pet.) (mem. op.). It is insufficient to show the law has been enforced against some

and not others. State v. Malone Service Co., 829 S.W.2d 763, 766 (Tex. 1992).

Rather, one must show “the government has purposefully discriminated on the basis

of such impermissible considerations as race, religion, or the desire to prevent the

exercise of constitutional rights.” Id. (citations omitted). Here, neither a suspect

classification nor a fundamental right is involved, so Thomas “must further

demonstrate that the challenged decision is not rationally related to a legitimate

governmental purpose.” Klumb, 458 S.W.3d at 13 (citing First Am. Title Ins. Co. v.

Combs, 258 S.W.3d 627, 639 (Tex. 2008)). In a rational-basis review, we examine

“whether the challenged action has a rational basis and whether use of the challenged

classification would reasonably promote that purpose.” Id.

As the City and Elefano point out, it received specific citizen complaints

regarding Thomas’s operation and the damages that operation was causing to the

roadway. The City provided evidence of this in Elefano’s affidavit and testimony of

residents living on Sassine describing the deterioration of the roadway. The City

explained it relied on citizen complaints to alert it of code violations that needed to
32
be addressed. Courts have recognized a rational basis for government entities

focusing and allocating their limited resources based on complaints by impacted

citizens. See, e.g., Three Legged Monkey, L.P. v. City of El Paso, 652 Fed. Appx.

236, 239 (5th Cir. 2016) (stating city had rational basis when it increased

enforcement responding to complaints). Likewise, Thomas complained that other

heavy trucks were being allowed to use Sassine and neighboring streets. However,

the City provided evidence that Thomas’s ongoing operation of up to thirty loads per

day coming in and out created more wear and tear on the City streets compared to

the other trucks Thomas asserted were similar. As to Thomas’s complaint that he

was the first person the City required to apply for a permit, the City offered evidence

it intended to use the forms going forward. Elefano’s affidavit also explains that the

updated application is designed to help enforce the City’s ordinances and to collect

on bonds to secure the funds the City needs to repair its streets. The City’s evidence

also shows that under the informal application process the City used on Thomas’s

prior project, the City was unable to collect on Thomas’s bond.

Even though Texas law does not shield State officials from equitable relief for

violating a citizen’s constitutional rights, a suit for damages for violating a citizen’s

constitutional violations is not allowed, except for takings claims. See Bouillion, 896

S.W.2d at 149 (distinguishing between suits seeking to declare statutes

unconstitutional and ones seeking damages as remedy for allegedly unconstitutional
33
act and concluding no private right of action for damages exists); Odutayo, 2013 WL

1718334, at *3. As to Thomas’s claim for money damages for the alleged violation

of the Equal Protections Clause, the claim is not allowed. See Bouillion, 896 S.W.2d

at 149. Thomas has failed to meet his burden to demonstrate the City and Elefano’s

actions were not rationally related to legitimate government objectives.

4. Inverse Condemnation and Regulatory Taking

Appellants argue that the trial Court lacks jurisdiction over Thomas’s inverse

condemnation and regulatory takings claim because (1) it is not ripe, and (2) Thomas

has failed to state a viable claim sufficient to overcome governmental immunity. In

his Fourth Amended Petition Thomas pleaded a cause of action for inverse

condemnation or regulatory taking. He alleged that he “has a vested property right

in the use and enjoyment of his land generally and specifically in receiving payment

from energy and pipelines companies for the legal disposal of oil and gas waste

(mud) on his land.”

The Texas Constitution provides that “[n]o person’s property shall be taken,

damaged, or destroyed for or applied to public use without adequate compensation.

. . .” Tex. Const. art. I, § 17(a). The Texas Constitution waives government immunity

with respect to inverse-condemnation claims. City of Houston v. Carlson, 451

S.W.3d 828, 830 (Tex. 2014); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236

(Tex. 2011). “Nevertheless, such a claim is predicated upon a viable allegation of
34
taking.” Carlson, 451 S.W.3d at 830 (citing Hearts Bluff Game Ranch, Inc. v.

State, 381 S.W.3d 468, 476 (Tex. 2012)). Without a properly pled takings claim, the

state retains immunity. Id. (citation omitted); see also City of Baytown v. Schrock,

645 S.W.3d 174, 176 (Tex. 2022) (“When government action falls short of a

constitutional taking, immunity bars many such claims.”). In such circumstances,

we must sustain a properly raised plea to the jurisdiction. See Hearts Bluff Game

Ranch, 381 S.W.3d at 491–92 (dismissing case for lack of jurisdiction after

concluding plaintiff had not alleged a taking).

“An inverse condemnation may occur if, instead of initiating proceedings to

condemn property through its powers of eminent domain, the government

intentionally physically appropriates or otherwise unreasonably interferes with the

owner’s right to use and enjoy his or her property.” State v. Brownlow, 319 S.W.3d

649, 652 (Tex. 2010) (citations omitted). An inverse condemnation proceeding is

essentially that the government has intentionally taken or unreasonably interfered

with an owner’s use of property and the property owner is attempting to recover

compensation for the lost or impaired rights. Id. Immunity from suit does not protect

the government from a claim under the takings clause. Id.; Holland, 221 S.W.3d at

643. To assert an inverse-condemnation claim against the State, a party must plead

these elements: (1) the State intentionally performed an act in the exercise of its

lawful authority; (2) that resulted in the taking, damaging, or destruction of the
35
party’s property; (3) for public use. City of Austin v. Liberty Mut. Ins., 431 S.W.3d

817, 824 (Tex. App.—Austin 2014, no pet.).

In City of Baytown v. Schrock, the Texas Supreme Court recently examined

the issue of whether a claim of economic harm to property resulting from the

improper enforcement of a municipal ordinance alleges a regulatory taking. See 645

S.W.3d at 178. Like the ordinance in that case and the one in City of Dallas v.

Carlson, the ordinances here do not regulate land use. See Schrock, 645 S.W.3d at

179–80; Carlson, 451 S.W.3d at 830, 832. The ordinance in Schrock dealt with

utilities service, and the Court explained regulation of that service was not a

regulation of the property itself. See Schrock, 645 S.W.3d at 179–80. There, the City

of Baytown refused to connect utility service to a rental property Schrock owned

until outstanding utility bills were paid, and Schrock alleged the City’s refusal to

reconnect utility service damaged the property. See id. at 177. Here, the ordinances

dealt with regulating road use and specifically, heavy traffic on the roads, which was

not a regulation of Thomas’s property. See id. at 179–80. Like the claims in Carlson

and Schrock, the true nature of Thomas’s claim “lies with the City’s [alleged]

wrongful enforcement of its ordinance, not in an intentional taking or damage of his

property for public use.” See id. at 180.

36
 The Schrock Court explained:

While we do not foreclose the possibility that enforcement of an
ordinance that does not directly regulate land use could amount to a
taking, this one does not. A regulation with “a condition of use ‘so
onerous that its effect is tantamount to a direct appropriation or ouster’”
may impair a property “so restrictively, or intrude on property rights so
extensively, that it effectively ‘takes’ the property.” However, “nearly
every civil-enforcement action results in a property loss of some
kind.” Property damage due to civil enforcement of an ordinance
unrelated to land use, standing on its own, is not enough to sustain a
regulatory takings claim.

Id. (quoting Carlson, 451 S.W.3d at 831–33; Jim Olive Photography v. Univ. of

Hous. Sys., 624 S.W.3d 764, 771–72 (Tex. 2021)).

Viewing the allegations contained in Thomas’s pleadings and the evidence

in support of the Amended Plea to the Jurisdiction in the light most favorable to

Thomas, we conclude Thomas has failed to allege a viable inverse condemnation

or regulatory takings claim to establish a waiver of immunity. See id. Given our

resolution of this issue, we need not address the parties’ dispute regarding ripeness,

as doing so would afford the City no greater relief. See Tex. R. App. P. 47.1.

D. Issue Two: Civil Court’s Ability to Enjoin Penal Ordinances

In its second issue, Appellants argue that the trial court lacks jurisdiction to

grant Thomas’s requested injunctive relief, because it would enjoin the City’s ability

to enforce a criminal ordinance. Thomas counters that he did not seek to invalidate

37
the ordinances, rather he sought to enjoin the enforcement of the ordinances in a way

that violated the constitution and certain statutory provisions.

Generally, a court of equity will not enjoin the right of another branch of

government to enforce a criminal law. State v. Logue, 376 S.W.2d 567, 569 (Tex.

1964); City of Beaumont v. Starvin’ Marvin’s Bar and Grill, L.L.C., No. 09–11–

00229–CV, 2011 WL 6748506, at *3 (Tex. App.—Beaumont Dec. 11, 2011, pet.

denied) (mem. op.). However, courts have jurisdiction to determine whether

ordinances imposing a fine have been preempted by State law. See, e.g., City of

Laredo v. Laredo Merchants Assoc., 550 S.W.3d 586, 589 (Tex. 2018) (addressing

preemption of a local regulation limiting plastic bag usage that imposed a fine).

When doing so, courts look at the “essence” of the case and whether the issues are

substantively more civil or criminal. See Tex. Propane Gas Assoc. v. City of

Houston, 622 S.W.3d 791, 799 (Tex. 2021). Here, Thomas primarily complains that

section 81.0523, a civil statute, forbids the City’s enforcement of its traffic

regulations in a commercially unreasonable way that impacts his landfarming

activity. See id. at 798–99 (explaining “essence” inquiry and the scope of the civil

statute). Adjudicating the merits of Thomas’s claims will turn on the scope of section

81.0523 and the definitions contained therein. See id. Specifically, whether State law

preempts the traffic ordinances in this case necessarily depends upon whether

Appellants’ actions in enforcing it were “commercially reasonable” and whether
38
Thomas acted as a “reasonably prudent operator.” See Tex. Nat. Res. Code Ann. §

81.0523(b), (c). Accordingly, we conclude that the “essence” of the case and the

issues here are substantively more civil than criminal.

Conclusion

Because Thomas has properly pleaded and the evidence raised a fact question

regarding his ultra vires claims against Elefano and as to whether the enforcement

of the traffic ordinances was preempted by the State statute in question, we affirm

the trial court’s denial of the Amended Plea to the Jurisdiction on those claims, and

its denial of the Amended Plea to the jurisdiction on the declaratory judgment action

against Elefano. However, because we hold that Thomas’s claim under the UDJA

for a declaratory judgment against the City, and his claims against the City for

alleged Equal Protection Clause violations, inverse condemnation, and regulatory

takings are barred by governmental immunity, we reverse the trial court’s denial of

the Amended Plea to the Jurisdiction as to those claims and render a judgment of

dismissal.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

________________________________
W.SCOTT GOLEMON
Chief Justice
Submitted on June 16, 2022
Opinion Delivered August 31, 2022
Before Golemon, C.J., Horton, and Johnson, JJ.

39