City of El Paso v. Luis R. Varela

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

CITY OF EL PASO, § No. 08-21-00116-CV

Appellant, § Appeal from the

v. § 327th Judicial District Court

LUIS R. VARELA, § Of El Paso County, Texas

Appellee. § (TC# 2021DCV1549)

OPINION

This is an accelerated interlocutory appeal in which Appellant, City of El Paso, challenges

the denial of its plea to the jurisdiction and the grant of a temporary injunction against it in this

civil action. We reverse and remand.

BACKGROUND

Factual & Procedural Background

Luis R. Varela, Appellee, is the record owner of 3100 Dyer Street, El Paso, Texas 79930

(the Property). In December 2016, a fire occurred which caused damage to the Property. In

February 2017, the City, through the Building and Standards Commission (the Commission), held

a hearing and issued Order No. ENHS16-03872 (the Demolition Order). The Commission found

the Property “constitutes a dangerous structure and, as such, is a nuisance condition that constitutes
a hazard to the health, safety and welfare of the citizens and is likely to endanger persons and

property[.]”

The Commission ordered Appellee:

a. Secure the structure within thirty (60) [sic] days and install a chain link
fence around the perimeter of the property; and maintain structure secured
until repaired or demolished; and

b. Provide to the City and the Commission a structural engineer’s report and
return to the Commission in sixty (60) days, March 29, 2017, with said
report; and

c. Clear the Property of all weeds, trash, and debris within thirty (30) days
from the date of this Order and maintain the property clear of all weeds,
trash and debris thereafter;

d. All work performed at the Property must be done in compliance with all
applicable sections of the El Paso City Code and state and federal
regulations and statutes.

In sum, the Demolition Order deemed the Property substandard in violation of 18.50 of the

El Paso City Code 1 and ordered demolition of the Property should Appellee fail to comply with

the requirements set forth therein.

According to Appellee, he acted with due diligence and began renovating the Property, via

his contractor, to bring it into compliance with the Demolition Order, but in 2020, work on the

Property stopped due to the COVID-19 Pandemic. Appellee further claims the COVID-19

Pandemic led to limited staffing in the City Development Department, which prevented him from

renewing the construction permit before its expiration, and from completing construction on the

Property. On March 18, 2021, the City issued a notice informing Appellee of its intent to demolish

1
EL PASO, TEX., MUN. CODE ch. 18.50 (2016),
https://library.municode.com/tx/el_paso/codes/code_of_ordinances?nodeId=TIT18BUCO_CH18.50PRMACO.

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the Property within thirty days. On April 16, 2021, the City issued a second notice informing

Appellee of its intent to demolish the Property beginning on or after April 22, 2021.

On May 7, 2021, Appellee filed the Plaintiffs Original Petition and Application for

Temporary Restraining Order, Temporary Injunction, and Permanent Injunction (the TRO). On

May 13, 2021, the trial court issued the TRO. In response, the City filed its Plea to the Jurisdiction

and Motion to Dissolve the TRO. Appellee also filed his Amended Petition, Application for

Temporary Restraining Order, Temporary Injunction and Permanent Injunction (the Amended

Petition) on May 24, 2021. The Amended Petition asserted causes of action for a declaratory

judgment and an unconstitutional taking claim. Appellee also filed a motion to extend the TRO

until June 9, 2021, which the trial court granted. On June 8, 2021, Appellee filed Plaintiff’s

Supplemental Petition and Application for Temporary Injunction and Permanent Injunction

(Supplemental Petition).

The trial court ultimately denied the City’s Plea to the Jurisdiction and (1) issued a

temporary injunction restraining the City from demolishing the Property, (2) ordered the City to

issue a construction permit for the rehabilitation of the property, and (3) set trial for October 26,

2021. This accelerated appeal followed.

DISCUSSION

In four issues 2, the City challenges the trial court’s denial of its plea to the jurisdiction

and the grant of a temporary injunction against it in this civil action. For the reasons that follow,

we reverse and remand.

Standard of Review

2
We note Appellant’s brief references five issues, when in fact there are only four. Issue Number Three is not
included. Therefore, on appeal we address only the four issues raised by Appellant.

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 The purpose of a plea to the jurisdiction is to dismiss a cause of action without considering

whether the claim has merit. City of El Paso v. Caples Land Co., 408 S.W.3d 26, 30 (Tex.App.—

El Paso 2013, pet. denied). A plea to the jurisdiction is a dilatory plea that challenges the court’s

power to adjudicate the subject matter of the controversy. Id. at 31. Whether a party has alleged

facts that affirmatively establish a trial court’s subject matter jurisdiction, and whether undisputed

evidence of jurisdictional facts establishes a trial court’s jurisdiction, are questions of law which

we review de novo. Id.

Applicable Law

Texas law authorizes municipalities to establish commissions to consider violations of

ordinances related to public safety. City of Dallas v. Stewart, 361 S.W.3d 562, 565 (Tex. 2012);

§ 54.032-0.41. A property owner, lienholder, or mortgagee aggrieved by a municipality order

issued under Section 214.001 may appeal the order by filing a verified petition in district court on

the ground of illegality. TEX.LOC.GOV’T CODE ANN. § 214.0012(a). Specifically,

Any owner, lienholder, or mortgagee of record of property jointly or severally
aggrieved by an order of a municipality issued under Section 214.001 may file in
district court a verified petition setting forth that the decision is illegal, in whole or
in part, and specifying the grounds of the illegality. The petition must be filed by
an owner, lienholder, or mortgagee within 30 calendar days after the respective
dates a copy of the final decision of the municipality is personally delivered . . . or
such decision shall become final as to each of them upon the expiration of each
such 30 calendar day period. [Emphasis added].

Id. Once the petition is filed, the district court may issue a writ of certiorari directed to the

municipality. City of El Paso v. Caples Land Co., 408 S.W.3d 26, 31 (Tex.App.—El Paso 2013,

pet. denied)(citing TEX.LOC.GOV’T CODE ANN. § 214.0012(b)). However, the issuance of the writ

does not stay proceedings on the decision from which the appeal is taken. Id. at 31 (citing

TEX.LOC.GOV’T CODE ANN. § 214.0012(e)). Further, appeal in the district court is limited to a

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hearing under the substantial evidence rule, and the district court may reverse or affirm, in whole

or in part, or may modify the decision. City of El Paso, 408 S.W.3d at 31-32 (citing

TEX.LOC.GOV’T CODE ANN. § 214.0012(f)).

Analysis

In four issues, the City challenges the trial court’s denial of its plea to the jurisdiction and

the grant of a temporary injunction. The City’s issues are as follows:

1. Does a plaintiff’s failure to comply with statutory prerequisites to suit
deprive the trial court of subject matter jurisdiction to hear his claims?

2. May Plaintiff raise a constitutional takings case or collaterally attack a
Building and Standards Commission order, without appealing such order
directly?

3. Is nuisance abatement a taking under Texas law?

4. Does a trial court have subject matter jurisdiction sufficient to issue an
injunction when a plaintiff does not outline a cause of action that could
waive governmental immunity?

As a threshold matter, the City argues Appellee failed to affirmatively demonstrate the trial

court’s jurisdiction. We agree.

Section 214.0012 of the Texas Local Government Code

Pursuant to Section 214.0012 of the Texas Local Government Code, Appellee was required

to appeal the Commission’s order by filing a verified petition in district court within thirty days of

receiving notice of the Demolition Order. See TEX.LOC.GOV’T CODE ANN. § 214.0012(a). It is

undisputed that Appellee did not appeal the Demolition Order. Appellee nonetheless argues his

“constitutional takings claim can be properly maintained against the City, despite Varela not

appealing the Demolition Order within 30 days of its issuance.” According to Appellee, the trial

court had jurisdiction and he is still entitled to bring his takings claim against the City because it

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was an administrative board, rather than a court of law, that made a determination as to the

nuisance condition of the Property and issued an order regarding its demolition, which he claims

fails to meet the independent court review requirement set forth in Stewart. City of Dallas v.

Stewart, 361 S.W.3d 562 (Tex. 2012).

In Stewart, the Dallas Urban Rehabilitation Standards Board (the “Board”) 3, found the

Stewart house to be an urban nuisance, and ordered its demolition. Id. at 565. The house was

ultimately demolished, and Stewart sought review of the Board’s decision by bringing a due

process and takings claims against the city of Dallas. Id. at 565. The Supreme Court held the

Board’s nuisance determination, and the trial court’s affirmance of that determination under a

substantial evidence standard, were not entitled to preclusive effect in regard to property owner’s

takings claim. Id. at 580-81.

Appellee attempts to limit the inquiry to the following excerpt in Stewart:

Today we hold that a system that permits constitutional issues of this importance to
be decided by an administrative board, whose decisions are essentially conclusive,
does not correctly balance the need to abate nuisances against the rights accorded
to property owners under our constitution. In the context of a property owner’s
appeal of an administrative nuisance determination, independent court review is a
constitutional necessity.

Id. at 564. This attempt overlooks a key fact that makes Stewart materially distinguishable for

purposes of jurisdiction—unlike Appellee, Stewart did in fact appeal the Board’s order. Id. at 565.

Moreover, the aforementioned excerpt, as used in support of Appellee’s argument, is taken out of

context; we believe the excerpt was written in the context of a litigant’s failure to timely assert a

constitutional takings claim. See id. at 564.

3
An administrative body in Dallas, Texas that enforces municipal zoning ordinances. Stewart, 361 S.W.3d at 564.

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 In holding that independent court review is a constitutional necessity, the Court was not

speaking to the requirement at issue mandated by the Texas Local Government Code—Section

214.0012—it was referring to an agency’s authority to decide substantive constitutional claims.

See id. at 579. The Court stressed the importance of adhering to statutory prerequisites for judicial

review and discussed a litigant’s failure of asserting a constitutional takings claim within the

appeal deadline, which precludes a party from raising a takings claim in a separate proceeding. Id.

at 580 (“[E]ven though [a constitutional] claim may be asserted for the first time in the district

court upon appeal of the agency order, a failure to comply with the appeal deadlines and/or the

failure to so assert the constitutional claim at that time, precludes a party from raising the issue in

a separate proceeding. . . . A party cannot attack collaterally what she chooses not to challenge

directly. Cities are not, therefore, subject to new takings suits for long-concluded nuisance

abatements.”)[Citations and internal quotation marks omitted].

The Court did, however, directly reference Section 214.0012 of the Texas Local

Government Code later in the opinion. Id. The Court referred to it as, “the Local Government

Code’s narrow thirty day window for seeking review.” Id. The Court explicitly stated: “[T]akings

claims must be asserted on appeal from the administrative nuisance determination. Although

agencies have no power to preempt a court’s constitutional construction, a party asserting a taking

must first exhaust its administrative remedies and comply with jurisdictional prerequisites for

suit.” Id. at 579 [Emphasis added]; see City of Dallas v. VSC, LLC, 347 S.W.3d 231, 237 (Tex.

2011)(“[I]f a remedial procedure might have obviated the need for a takings suit, then the property

simply had not, prior to the procedure’s use, been taken without just compensation. Because

[litigant] could seek possession or compensation through a remedial statutory scheme, it could not

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ignore that scheme in favor of initiating a constitutional takings suit.”). We apply the same

reasoning here.

Because Appellee failed to appeal the Demolition Order within the thirty-day statutorily

required period, he failed to comply with jurisdictional prerequisites for suit. See Stewart, 361

S.W.3d at 579. Accordingly, we hold the trial court did not maintain jurisdiction over the matter.

See id.; see also VSC, 347 S.W.3d at 237. Issue One and Issue Two are sustained.

In light of holding the trial court did not maintain jurisdiction, we need not reach Appellee’s

remaining issues.

CONCLUSION

For these reasons, we reverse and remand to the trial court for further proceedings

consistent with this opinion.

YVONNE T. RODRIGUEZ, Chief Justice

October 25, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

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