<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

(1948) ..................... 22, 23, 42
Casco v. Cameron County Attorney,

319 S.W.3d 205

(Tex. App.—
Corpus Christi 2010, no pet.).........................................................................30
City of Canyon v. McBroom,

121 S.W.3d 410

(Tex. App.—Amarillo
2003, no pet. h.) .............................................................................................15
City of El Paso v. Heinrich,

284 S.W.3d 366

(Tex. 2009) ................... 26, 31, 45, 47
City of Houston v. Arney,

680 S.W.2d 867

(Tex. App.—Houston [1st
Dist.] 1984, no writ).......................................................................................28
City of Houston v Rhule,

417 S.W.3d 440

(Tex. 2013) ...........................................18
City of Houston v. Williams,

216 S.W.3d 827

(Tex. 2007) .....................................47
City of Weslaco v. Cantu,

2004 WL 210790

(Tex. App.—Corpus Christi,
2004, no pet.) .................................................................................................15
County of Cameron v. Brown,

80 S.W.3d 549

(Tex. 2002) ....................................15
vii
County of Hays v. Alexander,

640 S.W.2d 73

(Tex. App.—Austin 1982,
no writ)................................................................................................... passim
Creedmoor-Maha Water Supply Corp. v. Tex. Comm'n on Envtl. Quality,

307 S.W.3d 505

(Tex. App.—Austin 2010, no pet.) .....................................47
Curtis v. Gibbs,

511 S.W.2d 263

(Tex. 1974) (orig. proceeding) ............................38
Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540

(Tex. 2003) ............... 14, 15
Dallas Fire Ins. Co. v. Davis,

893 S.W.2d 288

(Tex. App.—Dallas 1995,
no writ)...........................................................................................................40
Eastex Wildlife Conservation Ass'n v. Jasper,

450 S.W.2d 904

, 907
(Tex. Civ. App.—Beaumont 1970, writ ref’d n.r.e.) .....................................23
Ector County v. Springer,

843 S.W.2d 477

(Tex. 1992) .................................. 29, 31
El Paso County Comm'rs Court,

281 S.W.3d 16

(Tex. App. 2005)..... 31, 36, 37, 44
Fed. Sign v. Tex. S. Univ.,

951 S.W.2d 401

(Tex. 1997) .........................................27
Foree v. Crown Central Petroleum Corp.,

431 S.W.2d 312

(Tex. 1968) ...............39
Grayson County v. Harrell,

202 S.W. 160

(Tex. Civ. App.—Amarillo
1918, writ ref'd) .............................................................................................48
Hardin Cty. Community Supervision and Corrections Dep't v. Sullivan,

106 S.W.3d 186

(Tex. App.—Austin 2003, pet. denied) ..............................15
Harris County Hosp. Dist. v. Tomball Reg'l Hosp.,

283 S.W.3d 838

      (Tex. 2009) ............................................................................................. 25, 27
Haverbekken v. Coryell County,

112 Tex. 422

247 S.W. 1086

(1923) ..... 35, 42, 43
Haverbekken v. Hale,

109 Tex. 106

204 S.W. 1162

(1918) ............................ 32, 43
Hays County v. Hays County Water Planning P'ship,

106 S.W.3d 349

     (Tex. App.—Austin 2003, no pet.) ......................................................... 23, 42
Hearts Bluff Game Ranch, Inc. v. State,

381 S.W.3d 468

(Tex. 2012) ...................15
viii
Heckman v. Williamson County,

369 S.W.3d 137

(Tex. 2012) ...............................19
Heigel v. Wichita County,

84 Tex. 392

19 S.W. 562

(1892) ..................................25
Hooten v. Enriquez,

(Tex. App.—El Paso 1993, no
writ) ................................................................................................... 30, 31, 48
In re Luby's Cafeterias, Inc.,

979 S.W.2d 813

(Tex. App.—Houston
[14th Dist.] 1998, .............................................................................. 39, 40, 50
In re Puig,

351 S.W.3d 301

(Tex. 2011) .................................................................38
In re Servicios Legales de Mesoamerica S. de R.L., No. 13-12-00466-
CV,

2014 WL 895513

(Tex. App.—Corpus Christi Mar. 6, 2014, ,
orig. proceeding) ............................................................................................41
In the Matter of El Paso County Courthouse,

765 S.W.2d 876

, 880 (Tex.
App—El Paso 1989, no writ) ................................................................................. 41
Kavanaugh v. Underwriters Life Ins. Co.,

231 S.W.2d 753

(Tex. Civ.
App.—Waco 1950, writ ref'd) .......................................................................40
Leach v. Tex. Tech Univ.,

335 S.W.3d 386

(Tex. App.—Amarillo 2011,
writ denied) ....................................................................................................47
Lens Express, Inc. v. Ewald,

907 S.W.2d 64

(Tex. App.—Austin 1995,
no writ)...........................................................................................................40
Lowe v. Tex. Tech Univ.,

540 S.W.2d 297

(Tex. 1976) ...........................................25
Maples v. Henderson County,

259 S.W.2d 264

, 268 (Tex. Civ. App.—
Dallas 1953, writ ref’d n.r.e) .........................................................................23
Matter of El Paso County Courthouse,

765 S.W.2d 876

(Tex. App.—El
Paso 1989, no writ) ..................................................................... 31, 37, 38, 44
Mayhem v. Town of Sunnyvale,

964 S.W.2d 922

(Tex. 1998) ................................14
Nueces County v. Ferguson,

97 S.W.3d 205

(Tex. App.—Corpus Christi
2002, no pet.) .................................................................................................25
Perry v. Del Rio,

66 S.W.3d 239

(Tex. 2006) .................................................. 17, 21
ix
Phillips v. Naumann,

154 Tex. 153

275 S.W.2d 464

(1955)..................................32
Robinson v. Parker,

353 S.W.3d 753

(Tex. 2011) ........................................... 16, 23
Rolling Plains Groundwater Conservation Dist. v. City of Aspermont,

353 S.W.3d 756

(Tex. 2011) .........................................................................25
Rusk State Hospital v. Black,

392 S.W.3d 88

(Tex. 2012) ......................................26
Schiller v. Duncan,

(Tex. Civ. App.—Galveston 1929,
no writ)................................................................................................... passim
Smith v. Lutz,

149 S.W.3d 752

(Tex. App.—Austin 2004, no. pet. h.) ............ 47, 48
State Bar v. McGee,

972 S.W.2d 770

(Tex. App.—Corpus Christi 1998,
no writ)...........................................................................................................39
State v. Lueck,

290 S.W.3d 876

(Tex. 2009) ...........................................................27
Tex. Ass'n of Bus. v. Tex. Air Control,

852 S.W.2d 440

(Tex. 1993) ... 14, 15, 16, 22
Tex. Dep't of Parks & Wildlife v. Miranda,

133 S.W.3d 217

(Tex. 2004) ..............14
Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170

(Tex. 2004) .........................................................................26
Tex. Dep't of Transp. v. Jones,

8 S.W.3d 636

(Tex. 1999) ............................... 27, 28
Tex. Dep't of Transp. v. Ramirez,

74 S.W.3d 864

(Tex. 2002) ...............................15
Tex. Dep't of Transp. v. Sefzik,

355 S.W.3d 618

(Tex. 2011) .................................26
Tex. Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 628

      (Tex. 2010) ....................................................................................................47
Tex. Natural Res. Conservation Comm'n v. IT Davy,

74 S.W.3d 849

      (Tex. 2002) ....................................................................................................27
Texas Dept. of Ins. v. Reconveyance Servs., Inc.,

240 S.W.3d 418

(Tex.
App.—Austin 2007), .....................................................................................18
United Services Life Ins. Co. v. Delaney,

396 S.W.2d 855

) (Tex. 1965) ................39
x
Vondy v. Commissioners Court of Uvalde County,

620 S.W.2d 104

(Tex.
1981) ................................................................................................. 29, 30, 32
Vondy v. Comm'rs Court of Uvalde County,

714 S.W.2d 714

S.W.2d
417(Tex. App.—San Antonio 1986, writ ref'd n.r.e.) ................................ 30, 32
Waco Indep. Sch. Dist v. Gibson, 22 S.W3d 849 (Tex. 2000) ........................ passim
Weber v. City of Sachse,

591 S.W.2d 563

(Tex. Civ. App.—Dallas 1979,
writ dism'd) ....................................................................................................49
Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692

(Tex. 2003) .................. 16, 26
Wyatt v. Shaw Plumbing Co.,

760 S.W.2d 245

(Tex. 1988) ...................................40
STATUTES
Rev. Civ. Stat. Art. 1908 ................................................................................... 29, 36
Tex. Rev. Civ. Stat. Art. 6704..................................................................................34
Tex. Const. Art. II, §1 ....................................................................................... 48, 50
Tex. Const. Art. V, § 8 ................................................................................ 29, 36, 43
Texd. Const. Art. V, § 18 .................................................................................. 29, 42
Tex. Gov't Code Ann. § 24.020 ...............................................................................43
Tex. Transp. Code §251.052 ............................................................................. 33, 46
Texas Transp. Code § 251.053 ........................................................................... 8, 41
RULES
Tex. R. Civ. P. 97(a).................................................................................................40
Tex. R. App. P. 9.4 ...................................................................................................54
OTHER AUTHORITIES
2 Tex. Jur. 3d Administrative Law § 78 (1995)....................................................... 39
xi
STATEMENT OF THE CASE
Appellants are parties to a lawsuit with adjoining land owners, the
Townsends, 1 regarding Appellants’ ownership and right to control a roadway (the
“Road”) that crosses Appellants’ property. Appellees La Salle County, Texas; the
Honorable Joel Rodriguez, Jr., County Judge of La Salle County, Texas; and the
Honorable Raul Ayala, County Commissioner, Precinct Four, La Salle County,
Texas (collectively “La Salle County”) were joined as third-party defendants to an
underlying suit by the Appellants.
Appellants’ Third-Party Petition sought an injunction prohibiting the La
Salle County Commissioners Court from considering an application filed by the
Townsends under Chapter 251 of the Texas Transportation Code seeking to open
the Road to the public. Appellants also sought a declaration that the La Salle
County Commissioners Court acted ultra vires when it “accepted” the Townsends’
251 application. Finally, Appellants claimed that the District Court could exercise
supervisory jurisdiction or dominant jurisdiction over the La Salle County
Commissioners Court.
La Salle County filed a plea to the jurisdiction seeking to dismiss all of
Appellants’ claims against La Salle County. The plea to the jurisdiction asserted
1
The “Townsends” include Thomas Michael Townsend, Sr.; TMT Management, LLC; and
Townsend Mineral Company, LP.
1
that, even taking all the allegations in the Third-Party Petition as true: (1)
Appellants’ claims were not ripe; (2) La Salle County enjoyed immunity from suit;
(3) La Salle County Commissioners Court had not taken any action that would
invoke the District Court’s supervisory jurisdiction; and (4) La Salle County
Commissioners Court has not taken any action that could constitute an ultra vires
act.
After hearing arguments on La Salle County’s First Amended Plea to the
Jurisdiction, District Judge Dick Alcala granted the plea. Appellants then brought
this interlocutory appeal from the order granting the plea to the jurisdiction.
2
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is unnecessary in this matter. The proper resolution of
Appellants’ arguments are clear from the face of their petition: their claims are not
presently justiciable, they have not pleaded a valid waiver of the La Salle County
Defendants’ governmental immunity, and they offer no good reason for a district
court to entangle itself in supervising the deliberations of a body of the co-equal
legislative branch of government. Granting the plea to the jurisdiction was
indisputably correct, and oral argument is not needed to resolve the questions
presented by this appeal. However, should the Court wish to hear argument from
the parties, the La Salle County Defendants request to participate.
ISSUES PRESENTED
This case presents the following issues:
Standing and Ripeness:
1. Whether Appellants had standing to bring suit where they do not
allege any actions were taken by the La Salle County Commissioners Court that
impacted their ownership or control of the Road.
2. Whether the “threat” of possible action in the future that might or
might not impact ownership or control of the Road are sufficient to make
Appellants’ claims against La Salle County ripe for adjudication.
3
Governmental Immunity and Separation of Powers:
3. Whether Appellants’ allegation that the La Salle County
Commissioners Court “accepted” the Townsends’ 251 application and/or declared
a “public interest” in the Road is sufficient to invoke the District Court’s limited
supervisory jurisdiction over commissioners courts.
4. Whether Appellants plead an “ultra vires” claim under the
Declaratory Judgment Act when they alleged that the La Salle County
Commissioners Court “accepted” the Townsends’ 251 application and/or declared
a “public interest” in the Road.
5. Whether the Trial Court could enjoin the La Salle County
Commissioners Court from taking any action on the Townsends’ 251 application
under the doctrine of dominant jurisdiction.
6. Whether Appellants otherwise plead a waiver of immunity from
suit where they alleged the La Salle County Commissioners Court “accepted” the
Townsends’ 251 application and/or declared a “public interest” in the Road.
7. Whether the Trial Court would have violated the separation of
powers doctrine by enjoining the La Salle County Commissioners Court from
considering the Townsends’ 251 application.
4
TO THE HONORABLE FOUTH COURT OF APPEALS:
Appellees La Salle County, Texas; the Honorable Joel Rodriguez, Jr., in his
Official Capacity as County Judge, La Salle County, Texas; and the Honorable
Raul Ayala, in his Official Capacity as County Commissioner, Precinct Four, La
Salle County, Texas (collectively “La Salle County”) respectfully file their brief
arguing for this Court to affirm the Trial Court’s granting of their First Amended
Plea to the Jurisdiction.
STATEMENT OF FACTS
A. The Underlying Suit
Appellants and the Townsends were the original parties to the underlying
2
suit. Appendix, p.1; CR, p. 297. Appellants and the Townsends own adjacent
property in La Salle County. Appendix, p.5; CR, p. 300.
According to Appellants’ Third-Party Petition, the Townsends brought the
underlying suit against Appellants asserting the right to use the Road based on
various legal theories, claiming a right to use the Road and challenging Appellants’
ownership of the Road. Appendix, p. 6; CR, p. 301. Appellants filed a counter-
2
Page three of Third-Party Plaintiffs’ Original Petition and Application for Temporary and
Permanent Injunction was inadvertently left out of the appellate record. For ease of reference,
and to ensure a complete copy of Appellants’ live pleading is before the Court, Appellees have
attached a complete copy (including the missing page three, excluding exhibits, in their
Appendix attached hereto.
5
claim against the Townsends for trespass and sought a permanent injunction to
prevent the Townsends from using the Road or other roads on Appellants’
property. Appendix, p.4; CR, p. 299. Appellants and Townsends filed competing
motions for summary judgment. Appendix, p. 4; CR, p. 299. The Trial Court
ruled that the Townsends take nothing on various claims they brought seeking
access to the Road. Appendix, p.4; CR, p. 299.
Appellants sought a temporary injunction prohibiting the Townsends, their
agents and invitees from using the Road. Appendix, p. 4; CR, p. 299. Appellants
allege that the Townsends claimed the right to use the road based on actions of the
La Salle County Commissioners Court. Appendix, p.4; CR, p. 299. The Trial
Court entered a temporary restraining order and, later, a temporary injunction
restraining the Townsends from using the Road. Appendix, pp. 4-5; CR, pp. 299-
300.
B. Appellants’ Allegations Against La Salle County
Appellants’ live pleading 3 contains only three paragraphs (paragraphs 1.15-
1.17) which contain any allegations related to La Salle County. Appendix, pp. 6-7;
CR, pp. 301-302.
3
La Salle County challenged whether Appellants’ pleading alleged sufficient facts to establish a
waiver of immunity from suit. Accordingly, the Trial Court and this Court’s determination of
whether Appellants met their burden of establishing a waiver of immunity from suit is limited to
reviewing the facts alleged in Appellants’ live pleading. Texas Dept. of Parks and Wildlife v.
6
Paragraph 1.15 alleges that, in January and November of 2013, “the
Townsends and the Martin Family requested that the La Salle County
Commissioners’ Court [sic] open the Private Easement to the public.” Appendix,
p. 6; CR, p. 301 (emphasis added). Appellants further allege that “representatives
of the Townsends and the Martin Family appeared together before the La Salle
County Commissioners’ [sic] Court to request that the Commissioners’ [sic] Court
open the Private Easement based upon a ‘public interest’ in the road.” 4 Appendix,
p. 6; CR, p. 301. This paragraph alleges the Commissioners Court found a “public
interest” in the “Private Easement.” 5 Appendix, p.6; CR, p. 301.
Appellants do not allege the Commissioners Court violated any statute in
declaring a “public interest” in the Road. Appendix, p. 6; CR, p. 301. Nor do
Appellants allege that the finding of a “public interest” has an adverse legal
consequence to their ownership or right to control access to the Road. Appendix,
p. 6; CR, p. 301.
__________________________
Miranda,

133 S.W.3d 217

(Tex. 2004). Appellants’ Brief frequently goes outside their live
pleading, which are not matters this Court can consider in this appeal. See Appellants’ Brief, pp.
1-7.
4
This paragraph of the Third-Party Petition also alleges that the Townsends “trespass[ed] on
Hindes Ranch” as a result of the Commissioners Court’s finding of “public interest.” Appendix,
p. 6; CR, p. 301.
5
While Appellants repeatedly allege they did not have notice of the fact the Commissioners
Court was going to discuss the Road, they do not allege, in that paragraph or anywhere in the
pleading, that either meeting was held in violation of the Texas Open Meetings Act. Appendix,
pp. 1-13; CR, pp. 297-300.
7
Paragraph 1.16 alleges that, in April of 2014, “the Townsends filed an
Application for the Establishment of a Public Road Pursuant to Texas
Transportation Code Section 251.053 (“251 Application”). Appendix, p. 6; CR, p.
301. On May 12, 2014, the La Salle County Commissioners’ [sic] Court held a
hearing on Townsends’ 251 Application.” Appendix, p. 6; CR, p. 301. The
pleading states that Appellants and “numerous” other landowners testified in
opposition to the 251 Application and that,
[o]ther than the Townsends, no landowners who own
property adjacent to [the Road] testified in favor of the
Townsends’ 251 Application. ... Neither the 251
Application nor the testimony in support of it
demonstrated a necessity for access to the Townsend
property .... Following the extensive public testimony
against the 251 Application and despite the Hindes’
protest, the Commissioners’ [sic] Court accepted it for
consideration.
Appendix, pp. 6-7; CR, pp. 301-302 (emphasis added).
Neither this paragraph nor any other paragraph in the pleading alleged that
the 251 Application was granted. Appendix, pp. 1-13; CR, pp. 297-308.
Appellants only alleged that the 251 Application was “accepted for consideration.”
Appendix, p. 7; CR, p. 302. Appellants do not identify any statute that sets the
legal standard that must be met before a county commissioners court can “accept”
a Chapter 251 Application. Appendix, pp. 1-13; CR, pp. 297-308.
8
The pleading further alleges that,
The Commissioners’ [sic] Court called its retained
engineer to testify to the alleged fact that certain surveys
and plats purportedly show a ‘county road easement’ on
Hindes Ranch. While the County’s engineer testified to
this alleged fact, he did not submit any copies of surveys
or plats ... in support of his statements. Additionally, in a
clear reflection of its assertion of purported rights to the
[Road], the Commissioners’ [sic] Court took action to
authorize the purchase of a title insurance policy
covering the [Road]. While the Commissioners’ [sic]
Court set the Townsends’ 251 Application on its agenda
for the June 2nd meeting, it took no action to dismiss the
251 Application for lack of jurisdiction and it remains
pending.
Appendix, p. 7; CR, p. 302 (emphasis added). Appellants’ live pleading clearly
alleges that the Townsends’ 251 Application has not been granted. Appendix, pp.
1-13; CR, pp. 297-308. Appellants do not even allege that La Salle County ever
purchased a title insurance policy on any portion of the land over which they claim
ownership. Appendix, pp. 1-13; CR, pp. 297-308.
Although the hearing on the First Amended Plea to the Jurisdiction was held
in September 2014, Appellants did not amend their pleadings to allege any actions
were taken by the La Salle County Commissioners Court regarding the Road after
June 2, 2014 (more than three months before the hearing). Nor did Appellants
amend their pleadings to allege that an action of any kind was ever taken on the
9
Townsends’ 251 Application after May 12, 2014 (almost four months before the
hearing).
C. Causes of Action and Alleged Basis for Jurisdiction Contained in
Third-Party Petition.
The Third-Party Petition asserts one cause of action against La Salle County
and also seeks injunctive relief enjoining the La Salle County Commissioners
Court from taking certain actions regarding the Road. Appendix, pp. 7-10; CR, pp.
302-305.
The sole cause of action against La Salle County is a claim under the
Uniform Declaratory Judgment Act (hereinafter “DJA”). Appendix, pp. 7-9; CR,
pp. 302-304. The specific basis of the DJA claim is that La Salle County “did not
have the authority to accept the Townsends’ 251 Application.” Appendix, pp. 7-8;
CR, pp. 302-303. Again, there is no allegation that the 251 Application has been
granted, only that it was accepted, despite the fact that “the Townsends failed to
demonstrate a necessity for access to their property as required by the statute.”
Appendix, p. 8; CR, p. 303. The pleading also alleges that “consideration of the
251 Application directly interferes with the [trial court’s] continuing jurisdiction
over the disputed rights to the [Road] and improperly attempts to moot” claims at
issue in this litigation. Appendix, p. 8; CR, p. 303.
10
The Third-Party Petition alleges “an actual controversy has arisen and exists
between the [Appellants] and Third Party Defendants as to the deeded rights to the
[Road] located on Hindes Ranch. In light of the actions and statements of Third-
Party Defendants to date, a declaratory judgment is necessary to settle and afford
[Appellants] relief from uncertainty and insecurity....” Appendix, p. 8; CR, p. 303
(emphasis added). The following paragraph states that a judgment is necessary to
declare that “Third-Party Defendants do not have authority to consider the
Townsend 251 Application,” nor to declare the parties’ rights relative to the Road.
Appendix, pp. 8-9; CR, pp. 303-304. Once again, there is no allegation that the La
Salle County Commissioners Court has taken action challenging Appellants’
ownership of the Road at issue. Appendix, pp. 8-9; CR, pp. 303-304. Paragraph
2.4 concludes with a global statement that governmental immunity does not apply.
Appendix, p. 9; CR, p. 304.
Finally, the Third-Party Petition sets out the request for both a temporary
and a permanent injunction. Appendix, pp. 9-10; CR, pp. 304-305. Appellants
seek to enjoin the La Salle County Commissioners Court “from considering the
Townsend 251 Application and taking any action to order the opening or taking of
the [Road] pending the outcome of the Lawsuit.” Appendix, p. 9; CR, p. 304
(emphasis added). Thus, Appellants judicially admit that they were not only
11
seeking to enjoin the Commissioners Court from acting on the 251 Application,
they were also seeking to have the Commissioners Court enjoined from exercising
powers granted to a county commissioners court by statute and the Texas
Constitution. CR, p. 304.
SUMMARY OF THE ARGUMENT
Appellants brought suit seeking extraordinary and unprecedented relief from
the Trial Court, namely an injunction that would prohibit a legislative body (the La
Salle County Commissioners Court) from deliberating and acting on a matter over
which it had exclusive jurisdiction (the Townsends’ 251 Application). The
question here is whether Appellants can utilize the judicial branch of government
to preclude a county commissioners court from even considering an application as
provided by statute.
In this case, the Court must resolve a question of law; whether considering
only the allegations in Appellants’ Third-Party Petition, did Appellants allege facts
and claims that vested the Trial Court with jurisdiction over La Salle County? The
Trial Court correctly found it did not have jurisdiction.
First, Appellants do not allege facts establishing that they have sustained any
injury resulting from the actions of the La Salle County Commissioners Court or
that future injury from actions of the La Salle County Commissioners Court is
12
imminent. Thus, Appellants lacked standing and their claims were not ripe, which
deprived the Trial Court of jurisdiction.
Second, La Salle County is immune from suit, which deprives a trial court of
jurisdiction unless Appellants’ pleadings are sufficient to allege their claims are not
barred by immunity, or they allege a waiver of immunity from suit. Appellants
seek to avoid immunity by asserting they are bringing claims within the District
Court’s supervisory jurisdiction, or claims for ultra vires acts. Appellants’
pleadings fail to state claims within the Trial Court’s supervisory jurisdiction, or a
claim for ultra vires acts because Appellants do not allege acts that, if proven,
would establish the La Salle County Commissioners Court’s actions violated a
statute or the Constitution, or that the La Salle County Commissioners Court had
abused its discretion.
Appellants claim that the doctrine of dominant jurisdiction granted the Trial
Court jurisdiction over their claims against La Salle County. The doctrine of
dominant jurisdiction does not apply to the La Salle County Commissioners Court
because it is not a court of coordinate jurisdiction to the district court and
Appellants cannot meet the test for establishing an inherent relationship between
its third-party claims and the underlying suit. Furthermore, dominant jurisdiction
13
does not apply to the La Salle County Commissioners Court carrying out its
deliberative and legislative functions.
Finally, the Trial Court lacked jurisdiction because the essence of
Appellants’ claims violate the separation of powers doctrine. Appellants seek to
use the court system to interfere with, and indeed prohibit, the La Salle County
Commissioners Court from carrying out a legislative and administrative function
over which it was granted exclusive jurisdiction by the Legislature.
ARGUMENT
I. Standard of Review
The trial court’s grant of a plea to the jurisdiction is reviewed de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217

, 225-26 (Tex. 2004);
Mayhem v. Town of Sunnyvale,

964 S.W.2d 922

, 928 (Tex. 1998). In a suit against
a sovereign governmental entity, the plaintiff bears the burden of affirmatively
pleading a valid waiver of immunity from suit that vests the trial court with
jurisdiction. Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540

(Tex. 2003).
When a plea to the jurisdiction is based on the plaintiff’s pleadings, as opposed to
the plaintiff’s ability to prove jurisdictional facts, the trial court and court of
appeals’ review is limited to the four-corners of the plaintiff’s live pleading. Tex.
Ass’n of Bus. v. Tex. Air Control,

852 S.W.2d 440

, 446 (Tex. 1993). A plaintiff
14
has the burden of affirmatively pleading a valid waiver of immunity from suit that
vests the trial court with jurisdiction. Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540

(Tex. 2003). Both the trial court and the court of appeals must
liberally construe the pleadings in plaintiff’s favor and look to plaintiff’s intent in
determining if plaintiff plead a waiver of immunity from suit. County of Cameron
v. Brown,

80 S.W.3d 549

, 555 (Tex, 2002); Tex. Dep’t of Transp. v. Ramirez,

74 S.W.3d 864

, 867 (Tex. 2002); Tex. Ass’n of

Bus., 852 S.W.2d at 446

.
While Appellants’ allegations are to be liberally construed, Appellants’ live
pleading must demonstrate, by the facts alleged, reference to statute, or other
provisions of law, that immunity from suit has been waived. City of Weslaco v.
Cantu,

2004 WL 210790

(Tex. App.—Corpus Christi, 2004, no pet.); City of
Canyon v. McBroom,

121 S.W.3d 410

(Tex. App.—Amarillo 2003, no pet. h.);
Hardin Cty. Community Supervision and Corrections Dep’t v. Sullivan,

106 S.W.3d 186

, 189 (Tex. App.—Austin 2003, pet. denied). Furthermore, the
court does not have to accept a plaintiff’s allegations if its pleading relates to issues
of law rather than issues of fact. Hearts Bluff Game Ranch, Inc. v. State,

381 S.W.3d 468

, 487 (Tex. 2012). The deferential standard of reviewing a plaintiff’s
pleadings and evidence does not extend to the determination of whether there is a
waiver of immunity from suit; instead, the pleadings are construed in favor of
15
finding no waiver of immunity from suit and, thus, in favor of the governmental
defendant. Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692

, 701 (Tex. 2003).
When a plea to the jurisdiction challenges whether an appellant has plead a
waiver of immunity from suit, as in this case, the Court’s review is limited to the
pleadings and the court does not consider what, if any, evidence might have been
offered in the trial court. Tex. Ass’n of

Bus, 852 S.W.2d at 446

.
II.   The Trial Correctly Granted Appellees’ Plea to the Jurisdiction
Because Appellants Lacked Standing and Their Claims were not Ripe.
Standing and ripeness are threshold issues that must be considered because
they are indispensable components of the court’s subject-matter jurisdiction.
Robinson v. Parker,

353 S.W.3d 753

, 755 (Tex. 2011).            These jurisdictional
prerequisites ensure that a suit presents a live case or controversy and that the
Court does not issue an advisory opinion on events and injuries that might or might
not occur. Waco Indep. Sch. Dist v. Gibson, 22 S.W3d 849, 852 (Tex. 2000).
Standing requires a plaintiff to allege a “concrete injury in order for a justiciable
claim to be presented.”

Robinson, 353 S.W.3d at 755

. Whether claims are ripe
turns on whether “the facts are sufficiently developed so that an injury has
occurred or is likely to occur, rather than being contingent or remote.”

Id. (internal quotations

omitted). Thus, a claim is not ripe where it “involves uncertain or
contingent events that may not occur as anticipated or indeed may not occur at all.”
16
Perry v. Del Rio,

66 S.W.3d 239

, 250-51 (Tex. 2006). In evaluating ripeness, the
court must consider all information that is available and, thus, consider the facts
alleged at the time suit was filed and all intervening events.

Id. Under those

standards, the Trial Court properly granted La Salle County’s
plea to the jurisdiction because the Appellants have not been injured and their
claims were not, and are not, ripe. Appellants rely on two actions by the La Salle
County Commissioners Court; (1) acceptance of the Townsends’ 251 Application;
and (2) the declaration of a “public interest” in the Road to establish their injury.
Appellants do not and cannot allege that either of those acts has caused any
particularized concrete injury as required by Texas law. That fact is of little
importance to Appellants’ argument, however, because they actually seek to
litigate the possibility that the Commissioners Court might grant the 251
Application at some indefinite future point—the ambiguous “threat,” of uncertain
future action. CR, p. 338.
17
A. Appellants lack standing because they do not allege that they have
sustained a concrete injury traceable to actions taken by La Salle
County 6 .
The Third-Party Petition did not allege that the La Salle County
Commissioners Court granted the 251 Application, or even that it posted a meeting
notice to take further action on the 251 Application. Further, the Third-Party
Petition did not allege the Commissioners Court took actions to seize the Road,
remove the gates Appellants placed on the Road, or otherwise open the Road to the
public. The only allegations made are that the Commissioners Court did not refuse
to file or accept the 251 Application. According to Appellants’ pleadings, no
6
At the Trial Court, La Salle County argued that Appellants’ claims were not “ripe” because, at
the time of the filing of this suit, Appellants had not sustained any injury resulting from any
actions of La Salle County or the La Salle County Commissioners Court. CR, pp. 324-325.
While the argument made at the Trial Court regarding whether Appellants “had” sustained any
injury was labeled “ripeness,” it is, in fact, a “standing” argument. Standing and ripeness are
related doctrines which courts must frequently address together. As the Texas Supreme noted in
Patterson, “in many cases, the standing and ripeness inquiries merge: a party may lack standing
because what happened to him is not far enough developed, but that lack of development may
also render the action unripe.”

Patterson, 971 S.W.2d at 442

. See Texas Dept. of Ins. v.
Reconveyance Servs., Inc.,

240 S.W.3d 418

, 436 (Tex. App.—Austin 2007), rev’d on other
grounds,

306 S.W.3d 256

(Tex. 2010). Although La Salle County did not expressly raise
“standing” at the Trial Court, this Court must consider the issue as it determines whether the
Trial Court had jurisdiction. City of Houston v Rhule,

417 S.W.3d 440

, 442 (Tex. 2013) (subject
matter jurisdiction is essential to a court’s power to decide a case, can be raised for the first time
on appeal, and all courts have the affirmative obligation to determine if they have subject matter
jurisdiction);

Gibson, 22 S.W.3d at 851

(the court of appeals erred in holding that standing and
ripeness were not properly preserved for review because subject matter jurisdiction is essential to
the authority of a court to decide a case, it cannot be waived and may be raised for the first time
on appeal).
18
action regarding the Road was taken by the La Salle County Commissioners Court
in the four months prior to the hearing on the First Amended Plea to the
Jurisdiction.
Appellants allege that the Townsends claimed the declaration of a “public
interest” in the Road lead the Townsends to try to use the Road. The Townsends’
claimed right to use the Road is the “sole” basis on which Appellants claim they
“have” sustained an injury. But, Appellants admit the Townsends claimed the
right to use the road and challenged Appellants’ ownership and control of the Road
long before any actions taken by the La Salle County Commissioner Court.
Appellants’ Brief, pp. 2-3. Moreover, Appellants do not allege that La Salle
County took actions to seize the Road or to compel Appellants to allow others to
use the Road. Under these circumstances, the purported injury stemming from the
declaration is not properly traceable to La Salle County, which deprives the
Appellants of standing. See Heckman v. Williamson County,

369 S.W.3d 137

, 155
(Tex. 2012) (noting that traceability precludes any injury “that results from the
independent action of some third party not before the court”).
B.        Appellants’ Claims are Not Ripe Due to Their Inability to
Establish That Future Injury is Imminent.
With regard to injury in the future, Appellants’ Brief states that, “[u]nlike
cases ... where it was not known how the government would act, we know
19
precisely what is going to happen in this case ... The only conclusion to draw from
the record is that La Salle County [Commissioners Court] are going to grant the
Townsends’ Chapter 251 application.” Appellants’ Brief, p. 19. However, the
only basis in Appellants’ live pleading which can be read to allege that an injury is
imminent is the fact that the La Salle County Commissioners Court “accepted”
Townsends’ 251 Application. Appendix, p. 1; CR, p. 297. Appellants asserted at
the trial court that this allegation was sufficient to establish that there was a
“threat” of injury in the future. CR, p. 444. Texas courts consistently reject
claims as unripe even where the claimed future injury is far more certain than in
this case.
In Gibson, for example, the Texas Supreme Court rejected a claim of
“certain” future discrimination predicted to flow from a school district policy, to be
implemented in the upcoming year, requiring passage of a standardized test (or
summer school) for students to be

promoted. 22 S.W.3d at 850

. Notwithstanding
plaintiffs’ expert testimony that a disproportionate number of minority students
historically failed standardized tests and that some disparity in pass rates among
minority groups would persist in the future, creating a racially discriminatory
effect, the Supreme Court held the plaintiffs’ claims were not ripe because no one
20
had yet taken a test under the new policy and there was no evidence of the success
of the summer remediation program.

Id. at 855-56.

Even closer to the instant facts is Patterson, where the plaintiffs sought to
strike down an appropriations rider, which was predicted to cause them to lose
federal funding, as arguably in conflict with federal

regulations. 971 S.W.2d at 440

. The Supreme Court found the claims were not ripe because neither the state
agency charged with disbursing the federal funds, nor the federal agency with
responsibility for the regulations, had yet determined what actions they would take
to implement the rider.

Id. at 444;

Perry, 66 S.W.3d at 250-51

. If the Patterson
plaintiffs’ claims were unripe because the agencies were still considering their
policy responses, there can be no question that the Appellants' claims, predicated
on the potential future outcome of the Commissioners’ consideration of the 251
Application, are likewise unripe.
The cases Appellants cite—City of Houston v. Norcini and Perry v. Del
Rio—do not aid their argument. In Norcini, the takings claims were ripe because
applying for a building permit was futile—Houston’s regulations precluded
building anything on the plaintiff’s

land. 317 S.W.3d at 293

. Here, in contrast,
there is no certainty as to what decision the Commissioners Court may reach on the
Townsend 251 Application. Appellants’ reliance on Perry is even more puzzling,
21
given its statement that the “district court could properly have dismissed [the suit]
for lack of ripeness while the Legislature was still considering redistricting during
the regular session” and, therefore, there was no certain injury to the

plaintiffs. 666 S.W.3d at 251

.7
In light of this, it is unsurprising that Appellants attempt to go outside their
live pleading to show that injury is imminent, citing unofficial statements by two
members of the La Salle County Commissioners Court, Judge Rodriguez and
Commissioner Ayala. Appellants’ Brief, pp. 18-19. This resort to extra-record
evidence to prove imminent injury fails for two reasons. First, it is beyond dispute
that looking beyond their pleading violates the proper standard of review. Tex.
Ass’n of

Bus., 852 S.W.2d at 446

. Second, Appellants’ arguments fail on their
merits, as the evidence to which they point does not demonstrate that their
prediction of imminent, injurious official action has any basis in reality.
As Appellants admit, statements by individual members of the
Commissioners Court do not constitute acts of the Commissioners Court. “The
commissioners court may only validly act as a body; the acts of a single
commissioner do not bind the court.”

Id. at 360

(citing Canales v. Laughlin, 147
7
Perry’s holding that claims can become ripe, if the only contingent future event that will cause
injury happens during the pendency of an appeal,

id. at 251,

is inapplicable here. Appellants do
not assert that they have been injured by any actions that occurred after the trial court dismissed
their claims.

22 Tex. 169

, 455 (1948) (“individual commissioners have no
authority to bind the county by their separate action”); Eastex Wildlife
Conservation Ass’n v. Jasper,

450 S.W.2d 904

, 907 (Tex. Civ. App.—Beaumont
1970, writ ref’d n.r.e.) (“County can act only through the Commissioners’ Court,
the individual Commissioners having no authority to bind the county by their
separate actions”)). CR, p. 338 (“official action taken by the court meeting as a
body in session”). Moreover, the commissioners court “speaks through its official
minutes.” Hays County v. Hays County Water Planning P’ship,

106 S.W.3d 349

,
355 (Tex. App.—Austin 2003, no pet.); Maples v. Henderson County,

259 S.W.2d 264

, 268 (Tex. Civ. App.—Dallas 1953, writ ref’d n.r.e). In Robinson, the Texas
Supreme Court rejected the argument that statements of individual government
officials established that injury was imminent making the plaintiff’s claims ripe.

Robinson, 353 S.W.3d at 756

(statements of comptroller/mayor-elect did not
establish the City of Houston was going to fail to comply with provision of citizen-
initiated referendum proposition); Canales v. Laughlin,

, 455
(Tex. 1945) (“... individual commissioners have no authority to bind the County by
their separate action”).
Here, Appellants’ claims are not ripe because they do not allege that an
injury is definite and certain to happen, only that there is some possibility that the
23
La Salle County Commissioners Court could, at some point in the future, grant the
251 Application and/or take some other action which might injure Appellants.

Gibson, 22 S.W.3d at 850

Patterson, 971 S.W.2d at 444

. See also County of Hays
v. Alexander,

640 S.W.2d 73

, 80 (Tex. App.—Austin 1982, no writ)
(commissioners court passing a “resolution” stating that a roadway which plaintiffs
blocked with a gate was a public roadway, “was not in any sense a final action over
which a district court had jurisdiction to review”); Schiller v. Duncan,

, 572-73 (Tex. Civ. App.—Galveston 1929, no writ) (allegations that members
of commissioners court had already indicated that it will adopt report and appoint
overseer to make a public road on plaintiff’s property were insufficient to establish
the district court’s jurisdiction where “the commissioners’ court has made no final
order” on application to open roadway). 8
III.   La Salle County’s Immunity from Suit Deprived the Trial Court of
Jurisdiction.
The trial court lacked jurisdiction over Appellants’ claims because
Appellants’ pleadings do not assert a claim to which governmental immunity did
not apply, or for which there was a waiver of governmental immunity.
8
County of Hays v. Alexander and Schiller v. Duncan are discussed in greater detail in Section
III.B.1. below regarding the district court’s supervisory jurisdiction, but both hold that a
landowner’s claim is not proper until the Commissioners Court issues a final order directing the
taking of the property or the expansion of the roadway. County of Hays v. Alexander,

640 S.W.2d 73

, 80 (Tex. App.—Austin 1982); Schiller v. Duncan,

, 572-73 (Tex. Civ.
App.—Galveston 1929).
24
A.     La Salle County Enjoys Immunity from Suit Which Bars
Appellants’ Suit, Thereby Denying the District Court
Jurisdiction Over La Salle County.
Appellants brought suit against La Salle County, as well as County Judge
Joel Rodriguez, Jr. in his official capacity, and County Commissioner Raul Ayala,
in his official capacity.   A suit brought against a county official in their official
capacity is a suit against the county. Nueces County v. Ferguson,

97 S.W.3d 205

,
214 (Tex. App.—Corpus Christi 2002, no pet.). Thus, La Salle County is the only
party against which Appellants are bringing suit.

Id. La Salle

County enjoys sovereign immunity. Sovereign immunity extends
to the political subdivisions of the state, including counties. Lowe v. Tex. Tech
Univ.,

540 S.W.2d 297

(Tex. 1976); Heigel v. Wichita County,

84 Tex. 392

19 S.W. 562

, 563 (1892). Sovereign immunity, as it applies to local governmental
entities, is referred to as governmental immunity. Rolling Plains Groundwater
Conservation Dist. v. City of Aspermont,

353 S.W.3d 756

, 759 (Tex. 2011) (per
curiam); Harris County Hosp. Dist. v. Tomball Reg’l Hosp.,

283 S.W.3d 838

, 842
(Tex. 2009). While the name of the immunity enjoyed is different, governmental
immunity offers counties and other local governmental entities the same degree of
protection afforded to state entities under sovereign immunity.

Id. 25 1.

   Immunity, in part, Serves to Preserve Separation of Powers
by Preventing Litigants from Using Courts to Control
Other Branches of Government.
Sovereign immunity and governmental immunity serve two purposes. The
first purpose is to ensure that litigants cannot use the judicial branch to interfere
with powers vested in the executive branch. Sovereign immunity ensures litigation
cannot be utilized “to control state action by imposing liability on the State.” City
of El Paso v. Heinrich,

284 S.W.3d 366

, 371-73 & n.6 (Tex. 2009) (italics in the
original). Sovereign immunity precludes litigants from using the court system to
interfere with the exercise of powers needed in the executive branches. See Tex.
Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170

, 198 (Tex. 2004). Second, sovereign immunity serves to protect the public
treasury. Tex. Dep’t of Transp. v. Sefzik,

355 S.W.3d 618

, 621 (Tex. 2011) *4; Ben
Bolt-Palito Blanco Consol. Ind. Sch. Dist. v. Tex. Political Subdivisions Prop. Cas.
Self Ins. Fund,

212 S.W.3d 320

(Tex. 2006);

Taylor, 106 S.W.3d at 698

. See Rusk
State Hospital v. Black,

392 S.W.3d 88

, 97, 106 (Tex. 2012) (one of the purposes
of sovereign immunity and early rulings on immunity from suit is to avoid the
wasting of tax dollars on defending suits, including on discovery, where claims are
barred by immunity from suit).
26
2.    Immunity from Suit is a Component of Sovereign/
Governmental Immunity.
Sovereign/governmental immunity protects governmental entities both from
suit and liability. Fed. Sign v. Tex. S. Univ.,

951 S.W.2d 401

, 405 (Tex. 1997).
Sovereign immunity embraces two principals: immunity
from suit and immunity from liability. First, the State
retains immunity from suit, without legislative consent,
even if the State’s liability is not disputed. Second, the
State retains immunity from liability though the
Legislature has granted consent to the suit.

Id. (citations omitted)

(emphasis in original); Tex. Dep’t of Transp. v. Jones,

8 S.W.3d 636

, 638 (Tex. 1999) (“[i]mmunity from liability and immunity from suit
are two distinct principles”). The Texas Supreme Court went on to explain the
effect of immunity from suit.
Immunity from suit bars a suit against the State unless the
State expressly gives its consent to the suit. In other
words, although the claim asserted may be one on which
the State acknowledges liability, this rule precludes a
remedy until the Legislature consents to suit. ...
Federal

Sign, 951 S.W.2d at 405

(citations omitted) (emphasis in original); State v.
Lueck,

290 S.W.3d 876

(Tex. 2009) (“[i]mmunity from suit is a jurisdictional
question of whether the State has expressly consented to suit.…”); Tomball Reg’l

Hosp., 283 S.W.3d at 842

. Whether a court has subject matter jurisdiction is a
question of law. Tex. Natural Res. Conservation Comm'n v. IT-Davy,

74 S.W.3d 27

849 (Tex. 2002). See City of Houston v. Arney,

680 S.W.2d 867

(Tex. App.—
Houston [1st Dist.] 1984, no writ) (a plaintiff has the burden of pleading facts that
establish a waiver of immunity from suit). Moreover, because immunity from suit
deprives a trial court of jurisdiction, it is properly raised through a plea to the
jurisdiction. Jones,

8 S.W.3d 637

.
B.     Appellants’ Third-Party Petition Failed to Establish Subject
Matter Jurisdiction Because it did not Allege Either that
Immunity does not Apply or that Immunity has been Waived.
A party bringing suit against a governmental entity has the burden of
establishing that, either their suit falls within a statutory waiver of governmental
immunity, or the nature of their suit means immunity does not apply.

Heinrich, 248 S.W.3d at 370

. Here, Appellants assert that immunity does not apply to their
claims. Appellants argue that their claims are not barred by immunity because
either their claims: (1) fall within the District Court’s supervisory jurisdiction over
the actions of the La Salle County Commissioners Court; (2) the Trial Court could
enjoin the La Salle County Commissioners Court based on dominant jurisdiction;
or (3) La Salle County’s actions were ultra vires. The allegations in Appellants’
pleading do not establish any of these bases for avoiding immunity.
28
1.     La Salle County Commissioners Court did not exceed its
authority, thus, precluding the District Court from
exercising Supervisory Jurisdiction.
Appellants rely upon the Trial Court’s supervisory jurisdiction to establish
the Trial Court’s jurisdiction. The Texas Supreme Court explained the limited
scope of the Trial Court’s supervisory jurisdiction in Ector County v. Springer,

843 S.W.2d 477

(Tex. 1992).
Article V, § 18 of the Texas Constitution establishes the
commissioners court as the principal governing body of
the county. The powers and duties of the commissioners
courts include aspects of legislative, executive,
administrative, and judicial functions.
The constitution vests in the district court “appellate
jurisdiction and general supervisory control over the
County Commissioners Court, with such exceptions and
under such regulations as may be prescribed by law.”
Tex. Const. art. V, § 8. With a few narrow exceptions,
the legislature has not prescribed procedures for
exercising this appellate jurisdiction or supervisory
control.
The scope of the district courts’ jurisdiction has been
defined by case law:
It is equally well settled that the supervisory power of the
district court over the judgments of a commissioners’
court, as authorized by article 5, section 8, of the
Constitution, and article 1908 of the Revised Civil
Statutes [the predecessor of the Government Code], can
only be invoked when it acts beyond its jurisdiction or
clearly abuses the discretion conferred on it by law.
29

Id. at 478-79

(some internal citations omitted) (emphasis added).      See
Commissioners Court of Titus County v. Agan;

940 S.W.2d 77

, 79 (Tex. 1977);
Vondy v. Commissioners Court of Uvalde County,

620 S.W.2d 104

, 109 (Tex.
1981)(“Vondy I”).
Thus, supervisory jurisdiction can be exercised ONLY when a
commissioners court’s actions are beyond its authority, or the action is so
egregious that it represents an abuse of the discretion entrusted to the
commissioners court.

Vondy, 620 S.W.2d at 109

; Vondy v. Comm’rs Court of
Uvalde County,

714 S.W.2d 417

(Tex. App.—San Antonio 1986, writ ref'd n.r.e.)
(“Vondy II”). A commissioners court abuses its discretion only when its actions
are “arbitrary, capricious, unsupported by substantial evidence or that the court has
acted beyond its jurisdiction.”

Id. To bring

suit within the district court’s
supervisory jurisdiction, the plaintiff must: (1) direct the court to an applicable
constitutional or statutory provision that precluded the commissioners court from
taking the action in question; (2) direct the court to an applicable constitutional or
statutory provision that establishes the performance of a clear statutory duty which
is ministerial and nondiscretionary; or (3) allege that the commissioners court
abused its discretion by making decisions arbitrarily, capriciously, collusively, or
fraudulently.

Springer, 843 S.W.3d at 479

; Vondy

I, 620 S.W.2d at 109

; Casco v.
Cameron County Attorney,

319 S.W.3d 205

, 225 (Tex. App.—Corpus Christi
30
2010, no pet.); Hooten v. Enriquez,

, 532 (Tex. App.—El Paso
1993, no writ).
Furthermore, supervisory jurisdiction does not empower a district court to
interfere with a commissioners court carrying out its legislative and administrative
functions. In Springer, the Texas Supreme Court held that supervisory jurisdiction
did not give the district court the authority to determine what constituted
reasonable annual compensation for a constable.

Springer, 843 S.W.2d at 478

.
Similarly, the El Paso Court of Appeals held a district court could not use
supervisory jurisdiction to assume the powers of the El Paso Commissioners Court
which entered orders related to the construction and improvements to the county
courthouse. In re El Paso County Comm’rs Court,

281 S.W.3d 16

(Tex. App.—El
Paso 2005, orig. proceeding); In the Matter of El Paso County Courthouse,

765 S.W.2d 876

, 880 (Tex. App.—El Paso 1989, no writ).
a.    Appellants did not establish grounds for the trial
court to exercise supervisory jurisdiction.
Appellants rely on Vondy II and Hooter v. Enriquez to argue that the Trial
Court should have exercised supervisory jurisdiction. However, in both of those
cases, the commissioners court clearly acted in violation of the Texas Constitution
or statute. Hooter v. Enriquez,

, 528 (Tex. App—El Paso 1993, no
writ) (the commissioners court did not have authority to set job duties and
31
responsibility of deputy county clerks); Vondy

II, 714 S.W.3d at 422

(commissioners court could not abolish office established by the Texas
Constitution). Vondy II demonstrates what extreme facts need to be alleged and
proven to invoke supervisory jurisdiction. The Uvalde County Commissioners
Court set an annual salary for constables that was very low ($40 per month). This
Court held that the decision was either so arbitrary and capricious as to constitute
an abuse of discretion, or it represented an action beyond the commissioners
court’s authority, namely effectively terminating the constitutionally created office
of constable in Uvalde County. Vondy

II, 714 S.W.2d at 422

. No such facts are
alleged here.
Appellants are correct that a district court can exercise supervisory
jurisdiction over commissioners court’s actions related to county roadways.
However, in the cases cited by Appellants to support this proposition, the
commissioners courts made a final decision to open a public roadway, but the
commissioners courts’ actions were not in compliance with the applicable statute.
Phillips v. Naumann,

154 Tex. 153

275 S.W.2d 464

(1955) (commissioners court
could not open public road where applicant failed to establish all the requirements
of the statute); Haverbekken v. Hale,

109 Tex. 106

204 S.W. 1162

(1918). But no
32
violation is alleged here, as the La Salle County Commissioners Court has not
granted the 251 Application.
The facts alleged in this case do not justify the exercise of the Trial Court’s
supervisory jurisdiction and the relief sought by Appellants clearly exceeds the
authority granted by supervisory jurisdiction. The only allegation that an action
taken by the La Salle County Commissioners Court exceeded its jurisdiction is the
allegation that the court “accepted [the 251 Application] for consideration.”
Appendix, p. 7; CR, p. 302.         Appellants allege that “accepting” the 251
Application exceeded the Commissioners Court’s authority based on the allegation
that the 251 Application fails to demonstrate a necessity for access to the Road.
However, neither Chapter 251 of the Transportation Code, nor the case cited by
Appellants (Phillips v. Naumann,

275 S.W.3d 464

(Tex. 1955)) empower a
commissioners court to refuse to “accept” an application under Chapter 251. In
fact, Chapter 251 does not even reference the acceptance of a 251 application. See
TEX. TRANSP. CODE §§251.052-53. Moreover, a Chapter 251 application need not
set out all of the requirements in order for it to be considered and granted by a
commissioners court. See

Schiller, 21 S.W.2d at 573

(decided under a predecessor
statute similar to Chapter 251).
33
Appellants cannot point to any statute or constitutional provision that La
Salle County violated either in “accepting” the 251 Application or declaring a
“public interest” in the Road.       Assuming, arguendo, that these actions are
consistent with an intention to grant the 251 Application at some later date, those
actions are not enough to vest the District Court with supervisory jurisdiction over
the La Salle County Commissioners Court. Alexander,

640 S.W.2d 73

at 80;
Schiller,

at 573 (supervisory jurisdiction cannot be exercised until
the commissioners court makes a “final” decision granting or denying the
application to open the road).
The facts of Alexander and Schiller are analogous to the case at bar and, in
each instance, the district court lacked jurisdiction because the commissioners
court had not taken any action to remove the road from private control and compel
its opening to the public.
The Alexanders brought suit in 1979 seeking a declaration that, among other
things, the road that ran through their property was a private road or, alternatively,
it was a third class road under article 6704 of the Texas Revised Civil Statutes
which authorized landowners to put a gate across the road.      In 1980, over a year
after the suit was filed, the Hays County Commissioners Court passed a resolution
declaring the road to be a First Class Road.

Alexander, 640 S.W.2d at 76

. In
34
response, the Alexanders amended their pleadings seeking a declaration that the
1980 action of the commissioners court was voided for failing to comply with
applicable statutes dealing with the creation, expansion and improvement of roads.

Id. The trial

court entered a judgment stating that:
[the 1980] “action and order” of the Commissioners
Court ... was “vacated, set aside, and held for naught ...
and [the Hays County Commissioners Court]” and their
successors in office, are hereby permanently enjoined
from interfering with (appellees), their heirs and assigns,
in their use and enjoyment of such third class road and
the rights and privileges accorded them under the laws of
this State.

Id. at 76.

The Austin Court of Appeals recognized that, when a commissioners court
acts as administrator of the county road system, “the Commissioners Court acts not
as the county’s governing body merely, but exercises the powers of a court of
general jurisdiction with respect to such matters; and ‘[h]aving acquired
jurisdiction of the subject-matter and of the party or parties, they may, except as
[restrained] or prohibited by law, exercise such powers according to their
discretion.’”

Id. at 78

(quoting Haverbekken v. Coryell County,

112 Tex. 422

247 S.W. 1086

(1923)).
The Alexander court then held that the 1980 resolution was not subject to
review because it was not a final action by the commissioners court.
35
The action of the Commissioners Court in passing the
resolution of July 14, 1980 was not in any sense a final
action which a district court had jurisdiction to review
under Article 5, § 8 of the Constitution of Texas or under
Tex. Rev. Civ. Stat. art. 1908. Bird v. Alexander,

288 S.W. 606

(Tex. Civ. App.—Dallas 1926, no writ). While
such a resolution is an act of the Commissioners Court, it
is patently not a final act subject to judicial review.
Therefore, the trial court had no jurisdiction to declare
the resolution of July 14, 1980 “vacated, set aside, and
held for naught....”
Id at 79-80.
Schiller, like Appellants, alleged that the petition alleging public necessity
for a roadway did not contain all of the statutory elements required for a county to
authorize the establishment/opening of a public roadway.

Schiller, 21 S.W.2d at 571-72

. Like Appellants, Schiller did not allege that the commissioners court had
passed an order establishing or declaring the road to be a public road.

Id. at 72.

As
Appellants do, Schiller alleged the commissioners court members had indicated
that they would take action to establish a public road across his property.

Id. The Court

of Appeals found that the district court could not exercise supervisory
jurisdiction.
The revisory power of the district court over the
judgments of a commissioners’ court can only be called
into exercise when it acts beyond its jurisdiction or in
clear abuse of the discretion conferred upon it by the
statute in the matter of the establishment of public roads.
36
Certainly no such power or jurisdiction exists in the
district court when the commissioners’ court has made no
final order on the application for the establishment of a
road, and has not reached any conclusion on the question
of the necessity for the establishment of the road of
which complaint is made. Until such action is taken by
the commissioners’ court, no question of the abuse of its
discretion can be raised.

Id. at 573

(internal citations omitted).
Appellants admit that no final action has been taken on the 251 Application.
Therefore, there has been no final action by the La Salle County Commissioners
Court that either exceeded their authority or constituted an abuse of discretion. See

Id. Despite the

fact that no action has been taken, Appellants ask the Trial Court to
enjoin the La Salle County Commissioners Court from exercising its legislative
and administrative functions, which clearly exceeds the scope of the District
Court’s supervisory jurisdiction and violates the separation of powers between co-
equal branches of government.
In this case, Appellants did not only seek to have the District Court exercise
its supervisory jurisdiction but, rather, to have it enjoin the Commissioners Court
from taking actions related to the Road. The El Paso Court of Appeals in In re El
Paso County Comm’rs Court, held that the improper exercise of the district court’s
supervisory jurisdiction would result in the judicial branch of Texas government
violating the separation of powers doctrine by controlling matters with a
37
commissioners court’s administrative and legislative functions. In re El Paso
County Comm’rs

Court, 281 S.W.3d at 27-28

; In the Matter of El Paso County

Courthouse, 765 S.W.2d at 880

.
2.     “Dominant Jurisdiction” did not empower the District Court to
Enjoin the La Salle County Commissioners Court from
Considering the 251 Application.
Appellants contend that the District Court was obligated to assert “dominant
jurisdiction” over the La Salle County Commissioners Court and to enjoin the La
Salle County Commissioners Court from taking any action regarding the Road
because of a prior filed suit.
a.        Appellants Cannot Establish the Conditions for
Assertion of Dominant Jurisdiction Are Present in
this Case.
Appellants assert that the Trial Court had jurisdiction over their claims under
the doctrine of dominant jurisdiction. Appellants are correct that, if two lawsuits
are pending involving identical parties in courts of coordinate jurisdiction, the first
court may acquire dominant jurisdiction. In re Puig,

351 S.W.3d 301

, 305 (Tex.
2011); Curtis v. Gibbs,

511 S.W.2d 263

, 267 (Tex. 1974) (orig. proceeding).
However, the pre-conditions for the assertion of dominant jurisdiction are not
present in the case at bar.
38
First, dominant jurisdiction cannot apply here because the district court and
the commissioners court are not “courts of coordinate power.” “Courts have
concurrent or coordinate jurisdiction when each has the power, under the same
facts and conditions to determine and enforce the rights of litigants.” Andrews v.
Utica Mut. Ins. Co.,

647 S.W.2d 22

, 25 (Tex. App.—Houston [1st Dist.] 1982, writ
disms’d) (citing United Services Life Ins. Co. v. Delaney,

396 S.W.2d 855

) (Tex.
1965).    Dominant jurisdiction does not apply when one of the two pending
proceedings is pending in the executive branch, as is the case here. In re Luby’s
Cafeterias, Inc.,

979 S.W.2d 813

, 817 (Tex. App.—Houston [14th Dist.] 1998, no
pet.) (“[b]ecause the principle of dominant jurisdiction applies to courts of
coordinate power, it does not apply when one of the two pending proceedings is an
agency proceeding”). The La Salle County Commissioners Court did not have
coordinate jurisdiction with the District Court when the La Salle County
Commissioners Court “accepted” the 251 Application because it was effectively
an administrative proceeding; 9 therefore, dominant jurisdiction does not apply to
9
The Legislature granting commissioners courts with exclusive original jurisdiction over
applications under Chapter 251 of the Transportation Code makes the application of the doctrine
of “primary jurisdiction” more appropriate than “dominant jurisdiction.” ‘‘Primary jurisdiction
is a judicially created doctrine of abstention, whereby a court that has jurisdiction over a matter
nonetheless defers to an administrative agency for an initial decision on questions of fact or law
within the peculiar competence of the agency.’’ See State Bar v. McGee,

972 S.W.2d 770

, 772
(Tex. App.—Corpus Christi 1998, no writ) (quoting 2 TEX. JUR. 3d Administrative Law § 78
39
the consideration of the 251 Application. See

Id. In order

for the La Salle County
Commissioners Court and the District Court to have “coordinate power,” the
Townsends would have had to be able to file their 251 Application in District
Court. However, Chapter 251 of the Transportation Code provides that only the La
Salle County Commissioners Court could consider and act on the Townsends’
application. See TEX. TRANS. CODE §251.053.
Appellants’ dominant-jurisdiction theory also fails because the principle
applies only when “there is an inherent interrelation of the subject matter in the
two suits.” Dallas Fire Ins. Co. v. Davis,

893 S.W.2d 288

, 292 (Tex. App.—Dallas
1995, no writ). Courts determine “whether an inherent interrelationship exists” by
applying “the compulsory counterclaim rule.” Wyatt v. Shaw Plumbing Co.,

760 S.W.2d 245

, 247 (Tex. 1988). Under that rule, a claim must be raised in an extant
lawsuit if: (1) it is a claim that the “pleader has against any opposing party” at the
time of filing; and (2) ”it arises out of the transaction or occurrence that is the
__________________________
(1995)). The purpose behind primary jurisdiction is to assure that the administrative agency will
not be bypassed in a matter which has been especially committed to it by the Legislature. See
American Pawn and Jewelry, Inc. v. Kayal,

923 S.W.2d 670

, 673 (Tex. App.—Corpus Christi
1996, writ denied). Where the Legislature has committed a matter to an agency, the agency’s
primary jurisdiction is exclusive. See

id. at 674

(citing Foree v. Crown Central Petroleum Corp.,

431 S.W.2d 312

, 317 (Tex. 1968)). In other words,‘‘a court does not have jurisdiction to
determine administrative questions or to adjudicate controversies involving them until they have
been determined by the appropriate administrative agency.’’ Lens Express, Inc. v. Ewald,

907 S.W.2d 64

, 71 (Tex. App.—Austin 1995, no writ) (quoting Kavanaugh v. Underwriters Life Ins.
Co.,

231 S.W.2d 753

, 755 (Tex. Civ. App.—Waco 1950, writ ref’d).
40
subject matter of the opposing party’s claim.” TEX. R. CIV. P. 97(a). Applying
those standards, there are two reasons dominant jurisdiction does not apply in the
instant case.    First, the later-filed “claim” at issue (the Townsends’ 251
Application) could not be raised in the extant lawsuit, as the Legislature vests
county commissioners with exclusive original jurisdiction to consider such
applications. See TEX. TRANSP. CODE §251.053. Second, even if a 251 application
could have been raised in district court, such an application would not be a
compulsory counterclaim. Indeed, a 251 application is not truly a “claim” at all; it
is a petition to the county’s legislative and executive body to exercise their
governmental powers in the future.
Further, to the extent there is a legitimate dispute about “inherent
interrelatedness,” that determination is “committed to the sound discretion of the
trial court.” In re Servicios Legales de Mesoamerica S. de R.L., No. 13-12-00466-
CV,

2014 WL 895513

, at *10 (Tex. App.—Corpus Christi Mar. 6, 2014, orig.
proceeding). Here, the Trial Court implicitly found there was no inherent
interrelation when it rejected Appellants’ dominant-jurisdiction argument.
Appellants have not argued, much less proven, that the Trial Court’s implicit
finding was an abuse of discretion.
41
b. Dominant Jurisdiction Is Not Applicable to Prohibit
Commissioners Courts from Exercising Powers
Entrusted to them by Law.
Appellants assert that, because the Texas Commission of Appeals referred to
commissioners courts as “courts of general jurisdiction” and stated the validity of
their proceedings is to be determined by the rules applicable to courts of general
jurisdiction (as outlined in Haverbekken v. Coryell County), district courts can
assert dominant jurisdiction and prohibit commissioners courts from acting even
where a statute expressly grants them authority to act. 10 Appellants’ Brief, p. 13.
Outside of quoting the Haverbekken opinion, Appellants cannot cite any legal
authority holding that a trial court can assert “dominant jurisdiction” over a county
commissioners court and enjoin or otherwise prohibit a commissioners court from
deliberating and taking action.
10
While various opinions refer to commissioners courts as courts of general jurisdiction, the
actions of commissioners courts are materially different from courts within the judicial branch of
the Texas government. “Commissioners courts do not readily fit within the context of an article
I, section 13 court. Although commissioners courts do have the word “court” in their title, they
do not perform the same functions as the courts of the judiciary. Article V, section 18 of the
Texas Constitution delegates the duties of commissioners courts: “The county commissioners
court ... has none of the functions of a court, but is the governing body of the county.” TEX.
CONST. art. V, § 18 interp. commentary (West 1993). Further, although the Texas Supreme
Court has referred to Rowan, Swaim, and Smith, the Court did not mention article I, section 13;
instead, the Court decided the issues before it under article V, section 18. Canales v. Laughlin,

147 Tex. 169

, 455 (1948) (commissioners court’s order to create a new county
office and hire a specific employee was challenged and voided as outside commissioners court’s
statutory authority).” Hays

County, 106 S.W.3d at 360

.
42
To the contrary, Texas courts have repeatedly held that, even when
commissioners courts act as courts of general jurisdiction over matters involving
roadways, their actions are subject to review on direct appeal pursuant to the
limitations of the district court’s supervisory jurisdiction.
In its administration of the system of county roads within
its county, the Commissioners Court acts not as
the county’s governing body merely, but exercises the
powers of a court of general jurisdiction with respect to
such matters; and ”[h]aving acquired jurisdiction of the
subject-matter and of the party or parties, they may,
except as [restrained] or prohibited by law, exercise such
powers according to their discretion.” Haverbekken v.
Coryell County,

112 Tex. 422

247 S.W. 1086

(1923).
The exercise of such powers by the Commissioners Court
is subject to review in the district court for the county by
a suit filed in that court directly attacking the action of
the Commissioners Court.
Hays County v. Alexander,

640 S.W.2d 73

, 78 (Tex. App.—Austin 1982, no writ)
(citing TEX. CONST. art. V, § 8 and statutory predecessor to TEX. GOV’T CODE
ANN. § 24.020). See Haverbekken v. Hale,

109 Tex. 106

204 S.W. 1162

, 1164
(1918) (holding that the commissioners court order opening road was void because
statutory jurisdictional prerequisites were not met, entitling appellant to a
preliminary injunction); Bourgeois v. Mills, 60 Tex.76, 77 (1883); Schiller v.
Duncan,

, 573 (Tex. Civ. App.—Galveston 1929, no writ).
Therefore, while commissioners courts are referred to as “courts of general
43
jurisdiction,” the only appeal from the granting of a 251 application is through a
lawsuit based on the District Court’s supervisory jurisdiction; not by appeal.
The Alexander court specifically rejected the argument that district courts
can enjoin a commissioners court from taking action even where the matter before
the commissioners is subject to a pending lawsuit. A year after Alexander filed
suit against the Hays County Commissioners Court, the commissioners passed a
resolution declaring the road at issue was a First Class Road as opposed to a Third
Class Road as plaintiff alleged. Hays County v.

Alexander, 640 S.W.2d at 76

. The
trial court entered a final judgment enjoining the present and all future
commissioners courts from altering the designation of the road as something other
than a Third Class Road.

Id. at 77.

The Court of Appeals held that it was error to
enjoin a commissioners court from exercising its jurisdiction even if that meant the
commissioners court could “enter an order changing the classification of the road,
abandoning it or altering its route, all of which are matters of discretion conferred
upon the Commissioners Court....”

Id. at p.

80. See

Stringer, 834 S.W.2d at 479

(“the district court may order the commissioners court to exercise its discretion, but
cannot tell the commissioners what to decision to make”); In re El Paso County
Commissioners

Court, 281 S.W.3d at 27-28

(suit must be filed, district court
cannot bring its own action under supervisory jurisdiction); In re El Paso
44

Courthouse, 765 S.W.2d at 880

(supervisory jurisdiction does not empower the
district court to make a decision for the commissioners court).
3.        Appellants cannot establish that La Salle County committed an
ultra vires act in connection with the Road.
Appellants assert that immunity from suit does not apply because they are
asserting an “ultra vires” claim.
a.    Appellants’ pleadings were insufficient to allege La
Salle County Acted Beyond its Authority and, thus,
did not plead an Ultra Vires Claim.
An “ultra vires” claim is not barred by immunity because the plaintiff’s suit
is predicated on the unlawful acts of a governmental official.

Heinrich, 284 S.W.3d at 371-72

. To constitute an ultra vires suit, the plaintiff must not 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. at 372-73.

Prevailing in an ultra vires claim rests on
establishing that the governmental official exceeded their authority or failed to
carry out an act in which the person sued had no discretion whether or not to
perform the function.

Heinrich, 284 S.W.3d at 371

; Bagg v. Univ. of Tex. Med.
Branch,

726 S.W.2d 582

, 584-85 (Tex. App.—Houston [14th Dist.] 1987, writ
ref’d n.r.e.).
45
Once again, the only actions to which Appellants can point as the basis of
their ultra vires claim is “accepting” the 251 Application and declaring a public
interest in the Road.       The Transportation Code make no reference to the
commissioners court “accepting” an application. See TEX. TRANSP. CODE
§§251.052-.053. The Transportation Code sets out requirements for the elements of
an application, but does not set standards under which a commissioners court must
either accept or reject an application under Chapter 251.
In an effort to assert their pleading alleged an ultra vires claim, Appellants
argue that the La Salle County Commissioners Court lacked authority to
“consider” the 251 Application because the application failed to set out all
requirements of the statute. Appellant’s Brief, p. 17. However, an application for
opening a road based on necessity does not need to set forth all of the requirements
of the statute in order to be granted by a commissioners court. See

Schiller, 21 S.W.2d at 57

(decided under a predecessor statute that was comparable to Chapter
251).    More importantly, while the District Court may consider whether the
granting of the 251 Application was an ultra vires act by determining if the
statutory requirements were met, there are no statutory or other requirements that
determine when a commissioners court can consider a 251 application, even if it is
defective. Accordingly, Appellants have not plead an ultra vires claim.
46
4.    Appellants cannot establish a waiver of immunity from suit
under the Uniform Declaratory Judgment Act.
Finally, Appellants’ pleading stated that governmental immunity is waived
because Appellants are bringing suit under the Uniform Declaratory Judgment Act
(“DJA”). Appendix, pp. 8-9; CR, pp. 303-304. The DJA is a limited, not general,
waiver of sovereign immunity and it does not enlarge a court’s jurisdiction.
Creedmoor-Maha Water Supply Corp. v. Tex. Comm'n on Envtl. Quality,

307 S.W.3d 505

(Tex. App.—Austin 2010, no pet.). A plaintiff cannot circumvent
immunity from suit merely by claiming he is bringing suit under the DJA.

Heinrich, 284 S.W.3d at 370

. In order to determine if the DJA waives immunity
from suit, courts are obligated to look at the real nature of the relief sought. See
City of Houston v.

Williams, 216 S.W.3d at 829

Creedmoor, 307 S.W.3d at 515

;
Leach v. Tex. Tech Univ.,

335 S.W.3d 386

(Tex. App.—Amarillo 2011, writ
denied). The DJA waives immunity from suit to allow a plaintiff to sue to declare
an order, ordinance or statute invalid or illegal.

Heinrich, 284 S.W.3d at 373

, n. 6.
Additionally, the DJA waives immunity from suit to join a governmental entity as
a party to suit to construe or interpret an order, ordinance or statute. Tex. Lottery
Comm’n v. First State Bank of DeQueen,

325 S.W.3d 628

, 633-34 (Tex. 2010).
For example, in Smith v. Lutz,

149 S.W.3d 752

(Tex. App.—Austin 2004,
no. pet. h.) (not released for publication), the Austin Court held that the DJA did
47
not waive immunity from suit where the plaintiff could not point to any statute or
regulation for which he needed an interpretation or was seeking a determination
regarding its validity.
Here, as in Smith, Appellants cannot point to any order of the
Commissioners Court or County regulation for which they are in need of an
interpretation or determination of validity. Thus, there is no basis for them to seek
declaratory or other relief and their claims are barred by immunity from suit.

Id. Each of

Appellants’ efforts to avoid immunity or to plead a waiver of
immunity fail. Therefore, this Court must affirm the Trial Court’s granting of
Appellees’ First Amended Plea to the Jurisdiction.
IV.   The Separation-of-Powers Doctrine Reinforces the Propriety of the
Trial Court’s Decision to Grant the Plea to the Jurisdiction.
“The power to provide for the improvement of the public roads is a
legislative function, which has been delegated to the commissioners’ court.”
Grayson County v. Harrell,

202 S.W. 160

, 163 (Tex. Civ. App.—Amarillo 1918,
writ ref’d). “This legislative function, when properly performed, is protected from
the scrutiny of the judicial branch by the constitutionally-mandated separation of
powers doctrine.” Hooten v. Enriquez,