*

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by

assignment.

NO. 07-02-0189-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 11, 2002

______________________________

THE STATE OF TEXAS, ET AL., APPELLANTS

V.

JIMMY GLEN RIEMER, ET AL., APPELLEES

_________________________________

FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 30,441; HONORABLE JOHN T. FORBIS, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*

The State of Texas and David Dewhurst, in his official capacity as the

Commissioner of the General Land Office (Commissioner) present this interlocutory
1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2002).

2See discussion of historical facts in State v. Brainard, 968 S.W.2d 403 (Tex.App.--

Amarillo 1998), aff’d in part and rev’d in part, 12 S.W.3d 6 (Tex. 1999), regarding the

controversy between the State and the landowners adjoining the river following the closing

of the Sanford Dam on the Canadian River in 1965.

3Riemer, Jr. died during the pendency of this action. His son, Jimmy Glen Riemer,

individually and as Independent Executor of his father’s estate, was substituted as the

party for his deceased father. This interest will be referred to as the Riemer interest.

2

appeal1

 of the trial court’s denial of the State’s and Commissioner’s pleas to the

jurisdiction based on sovereign immunity to claims and causes presented by Jimmy Glen

Riemer, individually and as Independent Executor of the Estate of Hugo A. Riemer, Jr.,

Deceased (Riemer), Richard Coon, Jr., June Meetze Coon Trust, and the Johnson Borger

Ranch Partnerships, individually and as class representatives (other landowners). Based

upon the rationale expressed herein, we affirm and remand in part and reverse and render

in part.

While Brainard v. State, 12 S.W.3d 6 (Tex. 1999)2 initiated by Brainard and other

landowners in Roberts County to establish the boundary of the Canadian River pursuant

to Senate Concurrent Resolution 165, 71st Leg., R.S., 1989 Tex. Gen. Laws 5909 (SCR

165) was pending, on December 19, 1993, the State filed suit against Hugo A. Riemer, Jr.3

seeking to recover possession of land, rent for unlawful use of land, and damages for the

unlawful use, occupation and adverse claims to state-owned lands, being the surface of

the state-owned riverbed of the Canadian River, South of the Southern gradient boundary
4

In their fact statement, the State and Commissioner assert that the State’s claim

against Riemer, Jr. was directed to the surface only of the property. By their brief,

appellees concede that the fact statement is correct. The State did not assert any claims

to Sections 30 and 31, but its claims were limited to the “state-owned” riverbed south of

the southern gradient boundary along Sections 30 and 31.

5The original counterclaim was filed after the decision in Brainard, 12 S.W.3d at 6.

It did not include Section 29, Block 47, H&TC Ry. Co. Survey, Hutchinson County. 

6Huber is not a party to this interlocutory appeal. 

3

along Sections 30 and 31, in Block 47, H&TC Ry. Co. Survey in Hutchinson County.4

 In

response, Riemer filed a plea in abatement contending the State’s suit should be abated

until similar questions presented in the Brainard case were finally adjudicated, followed by

his first amended original answer filed in November 1996. The record reflects that no

action was taken until October 26, 1999, when Suggestion of Death of Hugo A. Riemer,

Jr. was filed and Riemer filed a second amended answer and an original counterclaim

alleging generally that the State had trespassed on the surface and mineral estates.5

Following another period of inactivity, on April 24, 2000, Riemer filed his first

amended counterclaim and a third party petition by which he made J.M. Huber Corporation

a defendant seeking recovery on six counts against the State and Huber for trespass on

the mineral estates of Sections 29, 30, and 31. After Huber filed its answer and

counterclaim,6

 Riemer filed his second amended counterclaim, amended third party

petition and original class action petition, and on July 12, 2000, the State filed its notice
7Coon and Coon Trust claimed interests in sections 75, 76, 77, 78, 79, 80, 81, 82,

and 83, Block 46, H&TC Ry. Co. Survey, Hutchinson County.

4

of non-suit of its claims without prejudice. Thereafter, as material here, the record shows

that:

• On October 29, 2001, the State filed its plea to the jurisdiction as to

the counterclaims, and subject thereto, its special exceptions and

answer.

• On December 4, 2001, Riemer, and intervenors Richard Coon, Jr.,

June Meetze Coon Trust and Johnson Borger Ranch Partnerships

filed their Fourth Amended Counterclaim, Second Amended Third

Party Petition and First Amended Class Action Petition in which,

among other things, for the first time, David Dewhurst, in his capacity

as Commissioner of the General Land Office of the State of Texas

was made a party.

• On January 15, 2002, the Commissioner filed his plea to the

jurisdiction. 

• On March 6, 2002, the day the trial court held the hearing on the two

motions for dismissal, Riemer filed his fifth amended counterclaim,

third amended party petition, and second amended class action

petition. 

Although the State’s original petition did not seek any relief as to Section 29, by his

counterclaim, Riemer sought relief as to Sections 29, 30, and 31; the other landowners

Coon and Coon Trust sought relief as to nine sections7and the Johnson Partnerships
8

Johnson Partnership claimed rights in sections 66, 67, 71, 72, 73, 74, 75, 76, 77,

78, and 79, Block 46, H&TC Ry. Co. Survey, Hutchinson County. 

9

In Brainard, the landowners survey, prepared by W.C. Wilson, Jr., was based on

accretion caused by the dam and was accepted by the trial court and the Texas Supreme

Court. According to that survey, the riverbed is approximately 20 to 50 feet wide. 12

S.W.3d at 12. Accretion is the process of increasing real estate by gradual and

imperceptible disposition by water of solid material, through the operation of natural

causes so as to cause that to become dry land that was once before covered by water.

Id. at 17. 

5

sought relief as to eleven sections,8

 all tracts being in Hutchinson County and bordering

the Canadian River downstream from the Sanford Dam. 

In Brainard, before the trial court ruled on the State’s motion for summary judgment,

it allowed the landowners time to secure a gradient boundary survey to “account for the

present, i.e., post-dam, conditions on the Canadian River.” 12 S.W.3d at 10. Unlike the

title claims of Lain presented in State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 581 (1961),

the title claims of Riemer and the other landowners are not based on a survey accounting

for “present” post-dam conditions or a regular chain of conveyances previously adjudged

to be good, but instead, without pleading specific boundaries by survey or otherwise, or

the effective dates of their alleged acquisitions, they claim title to land formerly located in

the Canadian River riverbed by accretion.9 Although Riemer and the other landowners

assert similar but not identical claims to the surface of the riverbed, as indicated by their

pleadings, their primary focus is directed to the oil and gas production from the riverbed

by Huber pursuant to leases from the State, some of which may have been executed
10 Reimer and the other landowners having filed their fifth amended counterclaim

on the day of the hearing, the State did not have the opportunity to challenge the claims

as set out in the pleadings as to form or substance.

6

before the construction of the Sanford Dam. As summarized below, their counterclaims10

include claims for:

 Reimer Claims Other Landowner Claims

Conversion Declaratory Relief

Action for Accounting Conversion

Action to Quiet Title Accounting

Violation of Constitutional Rights Money Had and Received

Trespass Unjust Enrichment

Fraud Trespass

Violation of Constitutional Rights

Fraud

After hearing the State’s and Commissioner’s motions to dismiss based on sovereign

immunity, the trial court denied them. Presenting five issues, the State and Commissioner

question:

No. 1. Whether, by filing suit against Hugo A. Riemer, Jr., for trespass to the

surface estate of Sections 30 and 31, the State and the Commissioner

waived sovereign immunity as to appellees Richard Coon, Jr., June Meetze

Coon Trust and the Johnson Borger Ranch Partnerships’(individually and as

class representatives ) intervention cause of action relating to the surface

and mineral estates of the Disputed Properties?

No. 2. Whether, by filing suit against Hugo A. Riemer, Jr., for trespass to the

surface estate of sections 30 and 31, the State and Commissioner waived

sovereign immunity as to appellee Jimmy Glen Riemer (individually and as

Independent Executor of the Estate of Hugo A. Riemer, Jr.), counter-claims

relating to the surface and mineral estates of Section 29?
7

No. 3. Whether, by filing suit against Hugo A. Riemer, Jr. for trespass to the

surface estate of Sections 30 and 31, the State and Commissioner waived

sovereign immunity as to appellee Jimmy Glen Riemer’s counter-claims

relating to the mineral estates of Sections 30 and 31?

No. 4. Whether appellees have pleaded a claim for constitutional taking of

private property for public use under Article I, Section 17 of the Texas

Constitution, for which they may seek recovery from the State and the

Commissioner? and

No. 5. Whether, absent a waiver of sovereign immunity, appellees Richard

Coon, Jr., June Meetze Coon Trust, and the Johnson Borger Ranch

Partnerships may obtain a declaratory judgment binding on the State and the

Commissioner that establishes the boundary of the disputed properties?

The State and Commissioner request that we reverse the order of March 22, 2002, and

render a decision dismissing

• all of intervenors’ causes of action for declaratory relief, conversion,

accounting, money had and received, unjust enrichment, trespass,

violation of class members’ constitutional rights, and fraud;

• Riemer’s taking claim; and

• Riemer’s causes of action for conversion, action for an accounting,

action to quiet title, trespass, and fraud insofar as they relate to

Section 29 or the mineral estates of Sections 30 and 31 because the

District Court lacks subject jurisdiction to hear and decide such

claims.

They further request that:

• we remand to the District Court Riemer’s non-taking claims insofar as

they relate to the surface estate only in Sections 30 and 31 for further

proceedings in the case; and
11The Court noted that the differences in the parties’ surveys are based on

conflicting legal theories that must be resolved by the Court. Brainard, 12 S.W.3d at 14.

8

• they recover their costs of this appeal together with such other and

further relief as we may find just and proper upon final hearing of the

captioned cause.

Boundary Dispute

Accretion-Artificial Causation

In Brainard, 12 S.W.3d at 6, the State’s claim was grounded upon a survey that was

premised on the legal position that any change in the boundary of the river that was

caused by the construction of the Sanford Dam did not divest the State of title to the

riverbed as it existed before the construction of the dam while the landowners claimed that

the artificial change theory was wrong.11 In rejecting the State’s position, the Court held:

changes brought about or influenced by an artificial structure, such as a

dam, must be considered in marking the gradient boundary of a river, so

long as the riparian owner does not cause or contribute to the artificial

influence. We therefore conclude that a survey of the disputed area must

account for present, i.e., post-dam conditions on the Canadian River.

Id. at 10. Here also, the State’s original claim was based on a survey of the riverbed which

did not recognize the changes in the course of the river caused by the construction of the

dam, however after the decision in Brainard, the State filed a nonsuit. As noted in

Brainard, accretion is “the process of increasing real estate by the gradual and
9

imperceptible disposition by water of solid material through the operation of natural causes

so as to cause that to become dry land that was once before covered by water.” Id. at 17.

The resulting boundaries and effective dates for these purposes have not yet been

determined. 

Sovereign Immunity & Standard of Review

In the recent case of Texas Natural Resource Conserv. v. IT-Davy, 74 S.W.3d 849

(Tex. 2002), the Court confirmed the appropriate standard for review and reaffirmed

several general principles of the doctrine of sovereign immunity. The Court held that

because the question of subject-matter jurisdiction is a question of law, we review a trial

court’s order denying a jurisdictional plea based on sovereign immunity de novo. Id. at

855.

The Court also restated several general rules, including:

• Sovereign immunity protects the State from lawsuits for money

damages and encompasses two principles: immunity from suit and

immunity from liability.

• Immunity from suit bars a suit against the State unless the Legislature

expressly consents to the suit.

• Immunity from liability protects the State from money judgments even

if the Legislature has expressly given consent to sue. 

• A party suing the State must establish the State’s consent to suit,

otherwise sovereign immunity from suit defeats a trial court’s subjectmatter jurisdiction.
10

• A suit against a state official in his/her official capacity is a suit

against the State.

Id. 853-55. Restating that only the Legislature can waive sovereign immunity, the Court

concluded that allowing other governmental entities to waive immunity by conduct would

be inconsistent with the existing legislative scheme and declined to recognize a waiver by

conduct exception in a breach of contract suit against the State. Id at 858. Sovereign

immunity also applies to the Commissioner in his official capacity because it amounts to

an action against the State which cannot be prosecuted without consent of the Legislature.

Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 738 (Tex.App.--Austin 1994, writ denied).

Because the multiple claims of the diverse parties are not entirely common and

appellees’ brief does not address the five issues of the State and the Commissioner as

required by Rule 38.2(a)(1) & (2) of the Texas Rules of Appellate Procedure, we review

the issues based on legal topics and parties rather than sequential order. We commence

our analysis by considering the constitutional “taking” claims of Riemer and the other

landowners. 

 Constitutional “Taking” Claims

By issue four, the State and Commissioner contend the trial court erred in denying

their pleas to the jurisdiction against Riemer and Intervenors’ taking claims for alleged

violation of constitutional rights under Article I, Section 17, Texas Constitution. We
11

disagree. Conceding that the doctrine of sovereign immunity does not shield the State

from an action for compensation under the takings clause, General Services v. Little-Tex.

Insulation, 39 S.W.3d 591, 598 (Tex. 2001), the State and Commissioner argue that

Riemer and the other landowners did not plead a claim for constitutional taking of private

property for public use. By the fifth amended counterclaim, third amended third party

petition, and second amended class action petition, in addition to the claims mentioned

below, Riemer alleged an improper taking of his oil and gas, that he had not consented to

the taking of his hydrocarbons, and 

the State’s purported lease to Huber was for public use in that the royalty

proceeds that the State received therefrom was put in the State’s general

fund for public use.

By the same pleadings, the remaining property owners alleged:

Defendants intentionally performed various acts that resulted in an improper

taking of Class Members’ oil and gas. Class members have not consented

to the taking of the hydrocarbons, and the State’s purported lease to Huber

was for public use in that the royalty proceeds that the State received

therefrom was put in the State’s general fund for public use.

A pleading asserting an unlawful taking of private property must allege that (1) the

State intentionally performed certain acts (2) that resulted in a “taking” of property (3) for

public use. See General Services, 39 S.W.3d at 598; State v. Hale, 136 Tex. 29, 146

S.W.2d 731, 736 (1941); Kerr v. Texas Dept. of Transp., 45 S.W.3d 248, 250 (Tex.App.--

Houston [1st Dist.] 2001, no pet.); and City of Abilene v. Smithwick, 721 S.W.2d 949, 951
12

(Tex.App.--Eastland 1986, writ ref’d n.r.e.). For purposes of this appeal, we must presume

that the allegations in pleadings are true and construe them in favor of the pleader. See

Kerr, 45 S.W.3d at 250. Although the landowners’ pleadings do not describe the property

by survey or otherwise, do not state whether the landowners claim title by document,

accretion, or both, and the effective dates of their acquisitions, even though the

allegations may be subject to special exceptions, questions not presented for our review,

we conclude the allegations are minimally sufficient for purposes of satisfying the pleading

requirements as discussed in General Services, 39 S.W.3d at 598. 

Moreover, where, as here, the nature of the claim affecting jurisdiction is obvious

to the court, and a question of the sufficiency of the pleading is presented, before

dismissing the claim, the party should be given an opportunity to replead. Bybee v.

Fireman’s Fund Ins. Co, 160 Tex. 429, 331 S.W.2d 910, 917 (1960); Harris County Flood

Control Dist. v. Adam, 56 S.W.3d 665, 670 (Tex.App.--Houston [14

th Dist.] writ dism’d

w.o.j. 2001). Accordingly, issue four is overruled.

Non Constitutional Claims

State v. Lain and

Kenedy Memorial Foundation v. Mauro

Without presenting any reply points, Riemer and the other landowners citing State

v. Lain, 162 Tex. 549, 349 S.W.2d 579, 581 (1961), commence their argument by

asserting that Texas law permits them to challenge a state official’s conduct when it is
13

wrongful and a misappropriation of property by actions for declaratory belief. Because

Lain is the foundation of Riemer’s and the other landowners’ non-constitutional “takings”

claims, before we commence our analysis of the State’s issues, we focus on whether Lain

and Kenedy Memorial Foundation v. Mauro, 921 S.W.2d 278 (Tex.App.--Corpus Christi

1995, writ denied), are controlling or apply to the non-constitutional claims.

In Lain, the Court qualified its decision that consent to sue the State was not

required by holding, “[o]n the record before us, we hold it is not.” 349 S.W.2d at 581. A

comparison of the record in Lain and the record here compels the conclusion that Lain

does not support the claims that legislative consent to sue is not essential. In Lain, the

State officials did not question the landowner’s title, which was based on “a regular chain

of conveyances” previously adjudged by the Court in City of Galveston v. Menard, 23 Tex.

349. Id. Here however, although Riemer and the other landowners assert that this action

is a “boundary dispute” they have not pled nor alleged a description or survey of their

property. Moreover, the State had been dismissed in Lain and was not a party of record

on appeal prosecuted by the remaining defendants. Riemer and the other landowners

seek relief and damages against the State and Huber. Finally, in Lain, the Court held that

consent to sue the State was not necessary in an action to recover title or possession of

land where the suit “is against individuals only.” Id.

Kenedy, 921 S.W.2d at 278, is likewise not controlling here. Among other reasons,

Kenedy was predicated on the decision in Lain, which as previously demonstrated is not
14

applicable here. Moreover, because the State was a party to a suit then pending in Travis

County to determine title and right of possession of the subject property, the court

ultimately ordered the case transferred to Travis County for further proceedings. Finally,

in Kenedy, the Foundation argued that (1) its claims were based on due course of law

rules announced in Lain, and (2) inverse condemnation principles. Even if otherwise

applicable, Kenedy does not support the contention that the various tort claims can be

maintained without legislative consent. 
15

State’s Suit v. Riemer

Other Landowners

&

Riemer’s Remaining Claims

Sections 29, 30, & 31, (surface & minerals)

 By their first issue, the State and Commissioner contend the commencement of the

State’s suit against Riemer for trespass to the surface of Sections 30 and 31 did not waive

the State’s sovereign immunity to allow the other landowners to assert their nonconstitutional claims by intervention. Then, by their second issue, the State and

Commissioner contend that commencement of a suit against Riemer for trespass to the

surface estate of Sections 30 and 31 did not operate to waive sovereign immunity as to

Riemer’s counterclaims relating to the surface and mineral estate of Section 29. Similarly,

by their third issue, they contend that the trespass to try title suit as to the surface of

Sections 30 and 31 did not operate to waive sovereign immunity as to Riemer’s claims to

the mineral estate of Sections 30 and 31. We agree.

Although the State acknowledges that its suit for trespass to the surface of Sections

30 and 31 against Riemer operated to subject the State to “any defense by answer or

cross-claim germane to the matter in controversy, “ Anderson, Clayton & Co. v. State, 122

Tex. 530, 62 S.W.2d 107, 110 (1933), it contends that sovereign immunity remains viable

as to Riemer’s claims to the minerals under Sections 30 and 31 and the surface and

minerals of Section 29. We agree.
16

Based on the State’s original petition, Riemer’s claims to Section 29, surface and

minerals, and claims to the minerals under Sections 30 and 31, and the other landowners’

claims were not germane to the State’s claim of trespass to the surface of Sections 30 and

31. Citing State v. Sledge, 36 S.W.3d 152,156 (Tex.App.--Houston [1st Dist.] 2000, pet.

denied), the State argues that any waiver of sovereign immunity resulting from

condemnation suit would not support a counterclaim for pre-judgment interest. Further,

in Fesal v. Hutchinson County, 443 S.W.2d 937, 939 (Tex.Civ.App.--Amarillo 1969, writ

ref’d n.r.e), we held that the county did not waive sovereign immunity from tort liability by

filing its suit on a sworn account for services rendered a patient by the County Hospital.

Based on the limited scope of the State’s suit for trespass to the surface of Sections 30

and 31 and our conclusion that Lain and Kenedy are not controlling, we sustain issues

one, two, and three. We also conclude the trial court erred in denying the plea of

sovereign immunity to all of Riemer’s claims, excluding his constitutional “takings” claim

and claims of title to the surface of Sections 30 and 31.

Declaratory Relief & Remaining Claims of Other Landowners

By issue five, the State and Commissioner contend that sovereign immunity is a bar

to the declaratory relief sought by the other landowners. We agree. In an action between

private parties to determine whether a constructively severed mineral interest is subject

to the doctrine of accretion, in Ely v. Briley, 959 S.W.2d 723 (Tex.App.--Austin 1998, no

pet.) the court held that because a “trespass to try title action” was the exclusive remedy
17

to resolve conflicting claims to property, the declaratory judgment rules were not

applicable. Even if declaratory relief is available in an action between private parties, ITDavy demonstrates that legislative consent is essential to the action for declaratory

judgment when the State is a party. 74 S.W.3d at 855. Although the Court recognized

that parties may seek declaratory relief against state officials who allegedly act without

legal or statutory authority, it concluded however, that in contrast, declaratory judgment

actions against state officials seeking to establish liability are suits against the State. Id.

 Although the School Land Board may have land surveyed or subdivided into tracts

under section 32.064 of the Texas Natural Resources Code (Vernon 2001), instead of

seeking mandamus relief to require the Commissioner to obtain a resurvey of school land

based on the decision in Brainard, the landowners seek to establish their boundary by

declaratory judgment. As stated in appellees’ brief, the underlying action is a boundary

dispute. As such, it is not supported by the decision in Lain. Moreover, determination of

the boundary here is not an action under 

a deed, will, written contract, or other writings constituting a contract or

whose rights, status or other legal relations are affected by a statute,

municipal ordinance, contract . . . 

wherein declaratory relief may be available under section 37.004 of the Texas Civil

Practice and Remedies Code (Vernon 1997). 
18

We have not overlooked Rylander v. Caldwell, 23 S.W.3d 132 (Tex.App.--Austin

2000, no pet.), and other similar cases cited by Reimer and the other landowners;

however, Rylander does not apply because the action was a challenge to the

constitutionality of a statute whereas the underlying action is not predicated on any

statutory provision. Finally, this Court’s denial of attorney’s fees in Brainard, 968 S.W.2d

at 414, because it was not a declaratory judgment action was upheld by the Supreme

Court. Issue five is sustained.

Accordingly, having concluded the trial court erred in denying Commissioner David

Dewhurst’s motion to dismiss all claims of the other landowners and Riemer, that part of

the order of the trial court signed March 22, 2002, is reversed in part as to Commissioner

Dewhurst and judgment is hereby rendered that all non-constitutional claims of Riemer and

the other landowners, to wit: (1) conversion, (2) action for accounting, (3) action to quite

title, (4) trespass, (5) fraud, (6) declaratory relief and (7) money had and received, (8)

unjust enrichment, are dismissed for want of jurisdiction, SAVE AND EXCEPT the

constitutional “takings” claims and Riemer’s claims to the title to the surface of Sections

30 and 31. 

As to the State, having concluded the trial court erred in denying the State’s motion

to dismiss the non-constitutional claims of the other landowners, to-wit: (1) declaratory

relief, (2) conversion, (3) accounting, (4) money had and received, (5) unjust enrichment,
19

(6) trespass, and (7) fraud, judgment is hereby rendered that these seven claims asserted

against the State be and are hereby dismissed for want of jurisdiction; and 

As to Riemer, having concluded the trial court erred in denying the State’s motion

to dismiss the non-constitutional claims, to-wit: (1) conversion, (2) action for accounting,

(3) action to quiet title, (4) trespass, and (5) fraud, judgment is hereby rendered that these

five claims asserted against the State be and are hereby dismissed for want of jurisdiction,

SAVE AND EXCEPT Riemer’s claims to title to the surface of Sections 30 and 31, above

described; and

Finally, concluding the trial court did not err in denying the motions of the State and

Commissioner Dewhurst to dismiss the constitutional “takings” claims of the other

landowners and Riemer, that part of the order is affirmed, and the cause is remanded to

the trial court to consider (1) the constitutional claims of the other landowners and Riemer

as they may apply to the State or Commissioner Dewhurst, and (2) Riemer’s claims to title

to the surface of Sections 30 and 31 above described, and for further proceedings in

accordance with this opinion. 

Don H. Reavis

 Justice

Publish.