NO. 12-23-00231-CV 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SKILL ZONE USA, LLC, 

APPELLANT

V.

VAN ZANDT COUNTY, TEXAS, 

APPELLEE

§

§ 

§ 

APPEAL FROM THE 294TH 

JUDICIAL DISTRICT COURT

VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Skill Zone USA, LLC (Skill Zone) appeals the trial court’s grant of Appellee 

Van Zandt County’s (the County) plea to the jurisdiction. In three issues, Skill Zone challenges 

whether the Declaratory Judgment Act (DJA) waives the County’s governmental immunity and 

the trial court’s implied finding as to ripeness. We reverse and remand in part and affirm in part. 

BACKGROUND

 In March of 2022, the Van Zandt County’s Commissioners Court held a public 

“workshop” regarding the possibility of adopting regulations covering establishments known as 

“game rooms.” The County’s district attorney, Tonda Curry, attended the meeting. The County 

adopted and enacted the initial version of the Game Room Regulations on April 27, but repealed 

and replaced this version with a revised iteration of the Game Room Regulations on July 6 (the 

Regulations). 

In general, the Regulations require that establishments defined as “game rooms” within 

the County apply for and obtain a permit in order to operate. Operating a game room without a 

permit carries a civil penalty of up to $10,000.00 for each day of unlawful operation. Section 

1.4(a) defines “game room” as 
2 

[A] for-profit business located in a building or place that contains six (6) or more: (1) amusement

redemption machines; or (2) electronic, electromechanical, or mechanical contrivances that, for

consideration, afford a player the opportunity to obtain a prize or thing of value, the award of

which is determined solely or partially by chance, regardless of whether the contrivance is

designed, made, or adopted solely for bona fide amusement purposes.1

Section 2.1(b)(2) provides that the “Game Room Permit Administrator” (specified elsewhere as 

the Van Zandt County Fire Marshal or his designated agent) shall collect an application fee of

$1,000.00 at the time a permit application is submitted. Section 3.12(a) states, “It shall be 

unlawful for a Game Room to keep, exhibit, operate, display, or maintain any gambling device 

that is prohibited by the Constitution of this state or Chapter 47 of the Texas Penal Code, 

Gambling.” 

The Regulations additionally state that “[t]hese Regulations do not legalize anything 

prohibited under the Texas Penal Code or any other law(s) or regulation(s),” and specifically 

impose a civil penalty of up to $10,000.00 for operating, displaying, or maintaining a “gambling 

device” as prohibited by Chapter 47 of the Texas Penal Code. Operating, displaying, or 

maintaining a gambling device is also grounds for denial, revocation, or suspension of a game 

room permit.

Skill Zone, a business located in Van Zandt County and established in 2021, furnishes

electronic machines on which adult individuals can play games, and which may provide cash 

prizes. Skill Zone asserts that the machines located on its premises are not “amusement 

redemption machines” as defined in the Regulations. 

On or around June 16, 2022, Skill Zone received a letter from Curry, addressed to “All 

Game Room Owners or Operators in Van Zandt County.” The letter stated that the County 

Commissioners Court “adopted an ordinance regulating game rooms within the County” and 

enclosed a copy of the County’s application for a permit to operate a game room. The letter 

further read, in capital letters, “Please be advised that if you have not submitted your original

Application within thirty days from today’s date you are operating an unpermitted game room 

and are therefore subject to a $10,000.00 per day penalty.” Skill Zone did not (and has not to 

date) file an application for a permit to operate a game room.

1 We note that this definition is identical to the one contained in the Texas Local Government Code’s 

subchapter discussing county regulation of game rooms, although Skill Zone challenges its use only in the 

Regulations. See TEX. LOC. GOV’T CODE ANN. § 234.131(2)(b) (West 2023).
3 

Instead, on July 29, Skill Zone sued the County seeking, in relevant part, a declaratory 

judgment that Sections 1.4(a)(2), 3.12(a), and 2.1(b)(2) of the Regulations are invalid, 

unenforceable, and void. Skill Zone alleged that its suit “challenges the validity of an ordinance 

enacted by the County for which sovereign immunity is waived.” On December 29, Skill Zone 

moved for partial summary judgment on its declaratory judgment claims. Subsequently, on 

February 24, 2023, the County filed a plea to the jurisdiction, arguing that the DJA did not 

operate as a waiver with respect to its right to governmental immunity from a suit because the 

statute containing the waiver language did not encompass “regulations” and because Skill Zone’s 

claims were not ripe. The trial court conducted an oral hearing on both Skill Zone’s summary 

judgment motion and the County’s plea to the jurisdiction. Thereafter, the trial court entered an

order granting the County’s plea to the jurisdiction without specifying the grounds on which the 

trial court based its ruling. 

On August 31, the trial court entered a final judgment dismissing Skill Zone’s claims 

with prejudice. This appeal followed. 

STANDARD OF REVIEW

“An order granting or denying a plea to the jurisdiction is a question of law that is 

reviewed de novo on appeal.” City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 

(Tex. 2015) (per curiam). When reviewing a trial court order dismissing a cause for want of 

jurisdiction, Texas appellate courts construe the pleadings in favor of the plaintiff and look to the 

pleader’s intent. Harris Cnty. v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018). However, when 

a defendant challenges jurisdiction, a court is not required to look solely to the pleadings but may 

consider evidence and must do so when necessary to resolve the jurisdictional issues raised.

Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). The jurisdictional 

inquiry may unavoidably implicate the underlying substantive merits of the case when the 

jurisdictional inquiry and the merits inquiry are intertwined. Chambers-Liberty Cntys. 

Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). When, as in this case, the order 

sustaining a plea to the jurisdiction does not specify the grounds upon which the trial court 

relied, we must affirm if any of the independent grounds in the jurisdictional plea have merit. 

See Kownslar v. City of Houston, 654 S.W.3d 472, 478 (Tex. App.—Houston [14th Dist.] 2022, 

pet. denied). 
4 

Pleadings that fail to allege facts affirmatively showing jurisdiction, but which can be 

cured by amendment, indicate a lack of pleading sufficiency, and the plaintiff should be allowed 

to amend. Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007) (noting 

that unless the pleadings demonstrate an incurable defect, plaintiffs should be given the 

opportunity to amend). However, where the allegations reveal an incurable defect and thus 

affirmatively negate the trial court’s jurisdiction, a plea to the jurisdiction may be granted 

without allowing the plaintiff an opportunity to amend. Id.; Tabrizi v. City of Austin, 551 

S.W.3d 290, 303 (Tex. App.—El Paso 2018, no pet.). 

WAIVER OF GOVERNMENTAL IMMUNITY

In three issues, Skill Zone contends generally that the trial court erred in granting the 

County’s plea to the jurisdiction, challenges whether seeking a declaration of the validity of a 

county regulation is sufficient to waive governmental immunity under the DJA, and argues the 

trial court erred if it granted the County’s plea on the basis that Skill Zone’s claims are not ripe 

for judicial review. 

Invocation of Waiver 

We begin by addressing the County’s contention that because the term “regulation” does 

not explicitly appear in the statutes which establish the DJA’s waiver of governmental immunity 

(while the terms “statute” and “municipal ordinance” do), Skill Zone’s challenge to the validity 

of select county regulations cannot invoke the waiver. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 37.004(a). 

Applicable Law 

The plaintiff in any suit has the burden to affirmatively demonstrate the trial court’s 

jurisdiction, and this burden includes establishing a valid waiver of immunity in suits against the 

government. Swanson, 590 S.W.3d at 550. Sovereign and governmental immunity are 

common-law concepts that generally protect the State and its political subdivisions from the 

burdens of litigation. Annab, 547 S.W.3d at 612. “Sovereign immunity protects the state and its 

various divisions, such as agencies and boards, from suit and liability, whereas governmental 

immunity provides similar protection to the political subdivisions of the state, such as counties, 

cities, and school districts.” Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 
5

(Tex. 2011) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)).2

Sovereign immunity bars DJA actions against the state and its political divisions absent a 

legislative waiver. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011); City 

of Austin v. Util. Assocs., Inc., 517 S.W.3d 300, 315 (Tex. App.—Austin 2017, pet. denied).

Generally, a waiver of governmental immunity requires “clear and unambiguous” statutory 

language. Texas Off. of Comptroller of Pub. Accts. v. Saito, 372 S.W.3d 311, 313 (Tex. App.—

Dallas 2012, pet. denied) (citing TEX. GOV’T CODE ANN. § 311.034 (West 2023)).

In general, the DJA allows “[a] person ... whose rights, status, or other legal relations are 

affected by a statute, municipal ordinance, contract, or franchise” to “have determined any 

question of construction or validity arising under the instrument, statute, ordinance, contract, or 

franchise and obtain a declaration of rights, status, or other legal relations thereunder.” TEX. CIV.

PRAC. & REM. CODE ANN. § 37.004(a) (West 2023). The DJA does not enlarge the trial court’s 

jurisdiction or provide a general waiver of immunity but provides a limited waiver for challenges 

to the validity of an ordinance or statute. Sefzik, 355 S.W.3d at 621-22; McLane Co., Inc. v. 

Texas Alcoholic Beverage Comm’n, 514 S.W.3d 871, 875 (Tex. App.—Austin 2017, pet. 

denied). “[I]f the Legislature requires that the State be joined in a lawsuit for which immunity 

would otherwise attach, the Legislature has intentionally waived the State’s sovereign 

immunity.” Wichita Falls State Hosp., 106 S.W.3d at 697–698. And “[f]or claims challenging 

the validity of ordinances or statutes ... the Declaratory Judgment Act requires that the relevant 

governmental entities be made parties, and thereby waives immunity.” City of El Paso v. 

Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). We note, however, that the DJA does not 

operate as a waiver for claims seeking a court’s interpretation of a statute unless the plaintiff has 

also challenged the validity of the statute. Porter v. Montgomery Cnty., No. 09-15-00459-CV, 

2017 WL 629487, at *3 (Tex. App.—Beaumont Feb. 16, 2017, no pet.) (mem. op.) (citing 

Sefzik, 355 S.W.3d at 622).

2 Courts often use the terms “sovereign immunity” and “governmental immunity” interchangeably even 

though they are two distinct concepts. Hyde v. Harrison Cnty., 607 S.W.3d 106, 109 n.3 (Tex. App.—Houston 

[14th Dist.] 2020, pet. denied) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). 

Though the terms differ, the law gives these two immunities the same treatment as to the issues raised in today’s 

case. See id. Thus, we cite cases involving sovereign immunity and cases involving governmental immunity 

without noting the type of immunity involved.
6 

Analysis 

Absent express waiver language, “Texas courts rarely conclude that the Legislature has 

waived governmental immunity. Still, the law recognizes the possibility and courts have found a 

waiver of immunity even when statutes lack express-waiver language.” Hyde v. Harrison Cnty., 

607 S.W.3d 106, 112 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). The clear and 

unambiguous requirement “is not an end in itself, but merely a method to guarantee that courts 

adhere to legislative intent.” Grossman v. City of El Paso, 642 S.W.3d 85, 103 (Tex. App.—El 

Paso 2021, pet. dism’d) (citing Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000)). 

The Supreme Court of Texas has further cautioned, “the doctrine should not be applied 

mechanically to defeat the true purpose of the law.” Id. “The polestar of statutory construction 

is legislative intent, which we determine from the enacted language.” In re Tex. Educ. Agency, 

619 S.W.3d 679, 687 (Tex. 2021). We seek that intent first and foremost in the plain meaning of 

the text. Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015). 

When deciding whether the Legislature clearly and unambiguously waived governmental 

immunity absent express-waiver language, the high court has further instructed courts to (1) 

consider “whether the statutory provisions, even if not a model of clarity, waive immunity 

without doubt;” (2) resolve any “ambiguity as to waiver ... in favor of retaining immunity;” (3)

generally find waiver “if the Legislature requires that the governmental entity be joined in a 

lawsuit even though the entity would otherwise be immune from suit”; (4) consider whether the 

legislature “provided an objective limitation on the governmental entity’s potential liability”; and 

(5) consider “whether the statutory provisions would serve any purpose absent a waiver of 

immunity.” Id.; Hillman v. Nueces Cnty., 579 S.W.3d 354, 360 (Tex. 2019). 

The Texas Supreme Court has held that the DJA allows persons to sue to challenge the 

validity of ordinances or statutes, and because governmental entities may be bound by a court’s 

declaration on those ordinances or statutes, they must be “joined in suits to construe their 

legislative pronouncements.” Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). 

Specifically, Leeper describes the DJA as “authorizing declaratory judgment actions to construe 

the legislative enactments of governmental entities[.]” Id. And in Texas Lottery Commission v. 

First State Bank of DeQueen, the Texas Supreme Court cited Leeper in holding that the DJA 

may waive the immunity of an assortment of governmental entities. 325 S.W.3d 628, 634–35 

(Tex. 2010) (DJA may waive immunity for, e.g., the Texas Lottery Commission, a state hospital, 
7 

and the Texas Natural Resources Commission). Moreover, the Texas Supreme Court found

waiver of governmental immunity where plaintiffs asserted a DJA claim challenging the validity 

of “cosmetology statutes and regulations.” Patel v. Texas Dep’t of Licensing & Regul., 469 

S.W.3d 69, 77 (Tex. 2015) (emphasis added) (challenge to validity of “cosmetology statutes and 

regulations” sufficient to waive immunity for Texas Department of Licensing and Regulation

and Commission of Licensing and Regulation); see also Tabrizi, 551 S.W.3d at 294 (“If [a] land 

use regulation is illegal or unconstitutional, a property owner may seek a declaration to that 

affect, which also overcomes immunity.”). 

Because the County would be bound by a court’s declaration on the validity of its 

regulations, the DJA requires that the County be joined in a lawsuit challenging same. For this 

reason, and based upon the aforementioned guidance, we disagree that the DJA waives immunity 

only in actions challenging legislative enactments specifically termed “statute” or “ordinance.” 

Scope of Waiver 

In its first and second issues, Skill Zone argues that it alleged sufficient facts to prove that 

its claims fall within the scope of the DJA’s waiver of governmental immunity. 

Applicable Law 

“A plaintiff filing suit against a governmental entity must assert claims for which

immunity has been waived and facts that fall within the scope of that waiver.” Ackers v. City of 

Lubbock, 253 S.W.3d 770, 774 (Tex. App.—Amarillo 2007, pet. denied). A mere reference to a 

basis for waiver of sovereign immunity in a petition is not enough to confer jurisdiction; the 

reviewing court must examine the scope of the waiver and whether the allegations in the petition 

fall within the scope of that waiver. See Nueces Cnty. v. Ferguson, 97 S.W.3d 205, 217 (Tex. 

App.—Corpus Christi 2002, no pet.) (citing State Dep’t of Crim. Justice v. Miller, 51 S.W.3d 

583, 587 (Tex. 2001)). Therefore, “we must determine whether the claims raised in [Skill 

Zone]’s amended petition are ones for which sovereign immunity has been waived and, if so, 

whether [Skill Zone] has properly pled such claims so as to invoke jurisdiction in the trial court.” 

Id. A plaintiff may overcome the bar of governmental immunity by alleging a facially valid 

constitutional claim. Tex. A & M Univ. v. Starks, 500 S.W.3d 560, 560–61 (Tex. App.—Waco 

2016, no pet.). However, governmental immunity is not waived if a party’s constitutional claims 

are “facially invalid.” Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 

2015); City of Port Arthur v. Thomas, 659 S.W.3d 96, 115 (Tex. App.—Beaumont 2022, no 
8 

pet.). Thus, to determine whether the trial court properly granted the County’s plea to the 

jurisdiction, we must determine if Skill Zone’s constitutional claim was facially valid. See

Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681, 698 

(Tex. 2022). 

Only where the validity of a law itself is questioned—not the actions a governmental unit 

took under the authority of that law—does the UDJA allow immunity to be waived. El Paso 

Cnty. v. El Paso Cnty. Emergency Servs. Dist. No. 1, 622 S.W.3d 25, 39 (Tex. App.—

El Paso 2020, no pet.); see Sefzik, 355 S.W.3d at 622 (“Sefzik is not challenging the validity of a 

statute; instead, he is challenging TxDOT’s actions under it, and he does not direct us to any 

provision under the UDJA that expressly waives immunity for his claim.”). 

Sections 1.4(a)(2) and 3.12(a) 

Skill Zone alleged in its petition that Sections 1.4(a)(2) and 3.12(a) of the Regulations are 

invalid because they are contradictory.3 Specifically, Skill Zone argues: 

Section 3.12(a) of the Game Room Regulations makes it a violation to possess exactly what the 

Game Room Regulations state are to be regulated and permitted under Section 1.4(a)(2). Section 

3.12(a) provides that “it shall be unlawful for a Game Room to keep, exhibit, operate, display, or 

maintain any gambling device that is prohibited by the Constitution of this state or Chapter 47 of 

the Texas Penal Code, Gambling.” However ... any machine that would meet the definition of 

“Game Room” in Section 1.4(a)(2) of the Game Room Regulations would also fall within the 

definition of a “gambling device” under the TEX. PENAL CODE § 47.01(4). Therefore, Sections 

l.4(a)(2) and 3.12(a) of the Game Room Regulations contradict each other, are invalid, 

unenforceable, and void.

Skill Zone alleges on appeal that Sections 1.4(a)(2) and 3.12(a) are unconstitutionally vague (due 

to their allegedly contradictory nature) and are therefore invalid, “because it is impossible to

decipher what devices Section 1.4(a)(2) of the Regulations seek to regulate.” Although a 

challenge to the validity of a regulation promulgated by a political subdivision of the State is 

generally one for which the Legislature has waived governmental immunity, we must also 

examine whether the facts alleged in the petition fall within the scope of the waiver.

We note that the definition of “game room” in the Regulations is substantially identical to 

the definition provided by the Texas Local Government Code in the subchapter governing 

3 When determining whether a law is unconstitutionally vague, we begin by presuming that the law is 

constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). The party challenging the law’s

constitutionality has the burden of showing that it fails to meet constitutional requirements. Id.
9

county regulation of game rooms. See TEX. LOC. GOV’T CODE ANN. § 234.131(2) (West 2023). 

The definitions at issue are reproduced below.

Regulations § 1.4(a) TEX. PENAL CODE ANN. §

47.01(4)

TEX. LOC. GOV’T CODE ANN.

§ 234.131(2) (West 2023)

[A] for-profit business located in a 

building or place that contains six 

(6) or more: ... (2) electronic, 

electromechanical, or mechanical 

contrivances that, for consideration, 

afford a player the opportunity to 

obtain a prize or thing of value, the 

award of which is determined solely 

or partially by chance, regardless of 

whether the contrivance is designed, 

made, or adopted solely for bona 

fide amusement purposes.

“Gambling device” means any 

electronic, electromechanical, or 

mechanical contrivance not excluded 

... that for a consideration affords 

the player an opportunity to obtain 

anything of value, the award of 

which is determined solely or 

partially by chance, even though 

accompanied by some skill, whether 

or not the prize is automatically paid 

by the contrivance.

[A] for-profit business located in a 

building or place that contains six or 

more: ... (B) electronic, 

electromechanical, or mechanical 

contrivances that, for consideration, 

afford a player the opportunity to 

obtain a prize or thing of value, the 

award of which is determined solely 

or partially by chance, regardless of 

whether the contrivance is designed, 

made, or adopted solely for bona 

fide amusement purposes.

Generally, a law is unconstitutionally vague if “the persons regulated by it are exposed to 

risk or detriment without fair warning or if it invites arbitrary and discriminatory enforcement.”

Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 566 (Tex. App.—Tyler 2007, pet. denied). That is, 

it may not be so vague and standardless as to leave a governing body free to decide, without any 

legally fixed guidelines, what is prohibited in each particular case. Pak-a-Sak, Inc. v. City of 

Perryton, 451 S.W.3d 133, 137 (Tex. App.—Amarillo 2014, no pet.). A law is not 

unconstitutionally vague unless it would “require people of common intelligence to guess at its 

meaning or there is a substantial risk of miscalculation by those whose acts are subjected to 

regulation.” Canal Ins. Co., 238 S.W.3d at 566. When faced with multiple constructions of a 

law, courts are directed to interpret the language in a manner that renders it constitutional if it is 

possible to do so. City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006). Notably, Skill 

Zone does not argue that the definition given in Section 1.4(a)(2) is incomprehensible on its face, 

but rather contends that its meaning is unclear in conjunction with Section 3.12.

The Texas Local Government Code grants counties the authority to require that an owner 

or operator of a game room “obtain a license or permit ... to own or operate a game room in the 

county.” TEX. LOC. GOV’T CODE ANN. § 234.134 (West 2023). However, Section 234.140 

provides that “[t]his subchapter does not legalize any activity prohibited under the Penal Code or 

other state law,” and provides that operating a game room under a permit issued by a county in 

accordance with the subchapter is not a defense to prosecution under Chapter 47 of the Texas 
10

Penal Code. Id. § 234.140 (West 2023). In its petition, Skill Zone contends that Section 

234.140 serves as a limitation on the ability of the County’s Commissioners Court to “enact[] an 

ordinance regulating game rooms that would regulate or permit anything that would otherwise be 

illegal under the penal code.” Skill Zone further appears to allege that Section 1.4(a)(2) runs 

afoul of this supposed limitation. Chapter 234, Subchapter E of the Local Government Code 

clearly states that nothing contained within the subchapter itself renders legal any activity 

previously made illegal, and further clearly states that obtaining a county permit to operate a 

game room will not excuse illegal conduct as set forth in Chapter 47 of the Texas Penal Code. 

Id.. We do not locate in this section any limitation on a county’s authority to enact regulations 

pertaining to game rooms, as alleged by Skill Zone.

Far from failing to provide “fair warning” of potential risk or detriment, the Regulations 

both reference and reinforce the preexisting bans on illegal gambling devices. Two facts may 

simultaneously be true without any inherent contradiction: (1) an establishment meeting the 

Regulations’ definition of a “game room” may not legally operate within the County without a 

permit, and (2) some establishments considered “game rooms” under the Regulations may be in 

possession of illegal gambling devices. The definition given in Section 1.4(a)(2) plainly does not 

obscure or obviate the prohibitions (both in Section 3.12 of the Regulations and in Chapter 47 of 

the Penal Code) on possessing illegal gambling devices. Instead, the plain text of the 

Regulations specifies that they do not “legalize anything prohibited under the Texas Penal Code 

or any other law(s) or regulation(s),” and explains that “an individual’s compliance with these 

Regulations, including operating a Game Room under a permit issued pursuant to these 

Regulations,” is not a defense to prosecution for an offense under Chapter 47. Moreover, in our 

review of the Regulations as a whole, we find no provisions purporting to allow illegal activity. 

Section 3.12(a), in particular, restates as a county offense the prohibition set forth in Section 

47.06 of the Penal Code, and Section 3.12(b) assigns a civil penalty for violating this prohibition, 

“regardless of whether the Game Room has a ... permit or not.” The plain language of the 

Regulations is clear that devices illegal under the Penal Code remain so and that receipt of a 

permit does not prevent liability for unlawful conduct. Accordingly, we conclude that Skill Zone 

has not alleged facts comprising a facially valid constitutional claim that would fall within the 

scope of the DJA’s governmental immunity waiver, and the trial court did not err in granting the 
11 

County’s plea to the jurisdiction as to Skill Zone’s claim regarding Sections 1.4(a)(2) and 

3.12(a). We overrule Skill Zone’s first and second issues as pertains to this claim.

Section 2.1(b)(2) 

Skill Zone contends that Section 2.1(b)(2) is invalid because the Commissioners’ Court 

exceeded the enacting authority conferred by the Texas Local Government Code by adopting the 

maximum application fee of $1,000.00 without analyzing “the cost of processing the application 

and investigating the applicant.” TEX. LOC. GOV’T CODE ANN. § 234.135 (West 2023). In 

support of this contention, Skill Zone alleges that it was “unable to locate any evidence that the 

County considered or analyzed the cost of processing an application and investigating an 

applicant” when setting the fee amount. 

As a challenge to the validity of a regulation promulgated by a political subdivision of the 

State, Skill Zone’s claim appears to be one for which the Legislature waived governmental 

immunity. See Heinrich, 284 S.W.3d at 373 n.6 (Section 37.004(a) waives sovereign immunity 

for statutory-validity claims). Although we may look to evidence in the record when a defendant 

challenges jurisdiction, the record evidence related to analysis by the County of the cost of

processing a game room permit application and investigating the applicant is very limited. See

Swanson, 590 S.W.3d at 550. Moreover, the evidence before us does not conclusively negate 

Skill Zone’s allegations, as it remains unsettled exactly what degree of analysis Section 234.135 

requires for a court to determine that a game room permit application fee is in fact “based on” the 

factors set forth therein. 

For these reasons, we conclude that Skill Zone alleged a claim that is not automatically 

barred by the County’s governmental immunity and sustain Skill Zone’s first and second issues 

as to this claim. Thus, we proceed to address ripeness regarding Section 2.1(b)(2). 

Ripeness

In its third issue, Skill Zone asserts that the trial court erred if it granted the County’s plea 

on the basis that Skill Zone’s claims are not ripe for judicial review. Having already found that 

governmental immunity bars Skill Zone’s claims pertaining to Sections 1.4(a)(2) and 3.12(a), we 

only examine whether Skill Zone’s remaining claim pertaining to Section 2.1(b)(2) is ripe for 

judicial review.

Applicable Law 

Ripeness is a component of subject matter jurisdiction that focuses on a lawsuit’s timing. 
12 

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (“While standing focuses on 

the issue of who may bring an action, ripeness focuses on when that action may be brought.”). 

Under the ripeness doctrine, courts must consider whether, at the time a lawsuit is filed, the facts 

are sufficiently developed so that an injury has occurred or is likely to occur, rather than being 

contingent or remote. Patel, 469 S.W.3d at 78. Thus, the ripeness analysis focuses on whether a 

case involves uncertain or contingent future events that may not occur as anticipated or may not 

occur at all. 4 Id. To establish that a claim is ripe based on an injury that is likely to occur, the 

plaintiff must demonstrate that the injury is imminent, direct, and immediate, and not merely 

remote, conjectural, or hypothetical. Gibson, 22 S.W.3d at 852. If a party cannot demonstrate a 

reasonable likelihood that the claim soon will ripen, the case must be dismissed. Robinson v. 

Parker, 353 S.W.3d 753, 755 (Tex. 2011). 

In actions where the harm alleged is future enforcement of a challenged regulation, the 

challenging party must similarly show that enforcement is “imminent or sufficiently likely.” See

Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 856 (Tex. App.—Austin 2004, no pet.). A 

perceived threat of enforcement does not create a justiciable controversy. R.R. Comm’n of 

Texas v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV, 2014 WL 4058727, at *3 (Tex. 

App.—Austin Aug. 14, 2014, no pet.) (mem. op.) (citing Mitz v. Texas State Bd. of Veterinary 

Med. Exam’rs, 278 S.W.3d 17, 25 (Tex. App.—Austin 2008, pet. dism’d)). 

Analysis 

Skill Zone argues that its claim is ripe for adjudication, even though it never submitted an 

application for a game room permit, because applying for a permit and thereby incurring the fee 

would “require Skill Zone to untruthfully assert in a sworn government document that it operates 

illegal gambling devices when it does not.” However, Skill Zone also asserts that it would only 

be required to submit an application “[t]o the extent the Game Room Regulations apply to [Skill 

Zone], which [Skill Zone] and the County disagree.” And on appeal, Skill Zone maintains “it 

does not possess or operate devices that are subject to the Regulations” and that “[Skill Zone’s]

machines do not fall within Section 1.4(a) of the Regulations.” 

4 “In determining whether a suit for a declaratory judgment presents a court with a ripe controversy ... we 

have acknowledged that UDJA suits are often brought with an eye to future harm. To be sure, the often futurelooking nature of UDJA suits does not remove the requirement that the court must have subject matter jurisdiction 

over the suit—that is, that the parties must have standing, and a ripe, justiciable controversy must exist... A plaintiff 

may very well present a court with a justiciable controversy when the plaintiff asserts that a live controversy exists 

and harm will occur if the controversy is left unresolved.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 685 

(Tex. 2020).
13

Skill Zone cannot demonstrate that it already suffered a concrete injury because at the 

time this lawsuit was filed, it had not applied for a game room permit or paid the application fee 

of which it complains. See Gibson, 22 S.W.3d at 851-52. Therefore, for its claim to be ripe, 

Skill Zone must establish that it is imminently likely to suffer a concrete injury (such as 

demonstrating that an enforcement action against it is imminent). See R.R. Comm’n of Texas, 

2014 WL 4058727 at *3.

We cannot conclude that Skill Zone affirmatively established that the failure to address 

its claim would constitute a hardship on Skill Zone. Receipt of more than one cease-and-desist 

letter from the entity tasked with enforcing applicable regulations, where the letters specifically

allege that the recipient is in violation of said regulation, may be sufficient to establish that 

enforcement is imminent or sufficiently likely. Mitz, 278 S.W.3d at 25. In Mitz, the claims of 

certain unlicensed practitioners of equine dentistry were found to be ripe when the practitioners 

“received two cease-and-desist orders, participated in an informal settlement conference, and 

[were] informed that the Board will refer the case to [the State Office of Administrative 

Hearings] for a contested case hearing.” Id. at 26. At the time this lawsuit was filed, the only 

communication Skill Zone received from the County regarding the Regulations was Curry’s 

letter generally notifying it of the enactment of the Regulations and the potential penalty for 

operating an unpermitted game room. The evidence of forthcoming enforcement here is 

significantly less than that presented in Mitz. Curry’s letter did not accuse Skill Zone of 

noncompliance or suggest that any enforcement action against Skill Zone was under 

consideration. And while we may consider intervening events that occur after a decision in the 

lower court, Skill Zone has not presented any evidence that the County issued any warnings or 

instituted any enforcement action since the trial court dismissed Skill Zone’s claims. See Perry 

v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001).

Indeed, although Skill Zone notes correctly that there is no requirement that a law 

actually be enforced against a claimant before a challenge thereto may be ripe, Skill Zone’s own 

assertions that the Regulations do not apply to it would appear to belie a finding that the threat of 

injury is anything more than speculative. See Patel, 469 S.W.3d at 78. In Patel, the Supreme 

Court of Texas found that the DJA claims of two co-owners of an eyebrow threading salon and 

an unlicensed eyebrow threader were ripe for adjudication, although no enforcement actions had 

commenced against them. Id. However, the Court found that these parties demonstrated a 
14 

sufficient likelihood of imminent injury because the record showed that 1) another salon owned 

by one co-owner already received warnings; and (2) two of the unlicensed threader’s co-workers 

already received warnings. Id. (“Because at the time the lawsuit was filed Chamadia was 

performing threading services without a cosmetology license and Patel and Satani were 

employing threaders who did not have cosmetology licenses, these individuals were subject to a 

real threat of likely civil and criminal proceedings”). 

Conversely, throughout this case, Skill Zone has maintained that its business is not 

encompassed by the definition of “game room” given in Section 1.4(a). If Skill Zone is not a 

game room as defined in the Regulations, then it lacks any obligation to submit a permit 

application. Neither has Skill Zone asserted any intent to apply for a game room permit in the 

future. See City of Houston v. Student Aid Found. Enterprises, No. 14-09-00236-CV, 2010 

WL 2681706, at *2 (Tex. App.—Houston [14th Dist.] July 8, 2010, no pet.) (party’s claim 

challenging zoning variance ordinance not ripe because party alleged no intent to sell or build on 

affected property). Therefore, it would not be in danger of incurring the allegedly unlawful 

application fee set forth in Section 2.1(b)(2), because any obligation to pay the fee is contingent 

on the submission of an application for a game room permit.5

 See Gibson, 22 S.W.3d at 852-53 

(claims challenging student promotion policies were not ripe because student retention was 

contingent on standardized test performance). While the threat of harm may constitute a 

concrete injury, “the threat must be direct and immediate rather than conjectural, hypothetical, or 

remote.” Waco Indep. Sch. Dist., 22 S.W.3d at 852. Because its alleged injury remains 

contingent, Skill Zone’s claim is not yet ripe for review. We overrule Skill Zone’s third issue.

LEAVE TO AMEND

If the pleadings lack sufficient facts to affirmatively demonstrate the trial court’s 

jurisdiction but do not reveal incurable defects in jurisdiction, the issue is one of pleading 

sufficiency, and the trial court should afford the plaintiff an opportunity to amend. Texas Dept. 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). If, however, the 

pleadings affirmatively negate jurisdiction, the trial court may grant the plea to the jurisdiction 

without allowing an amendment. Id. at 227. In determining whether leave to amend should be 

5 Moreover, if Skill Zone is not a game room obligated to obtain a permit to operate lawfully within the 

County, it would not be answerable for any penalties under the Regulations for operating its business without a 

permit.
15 

granted in a case involving governmental immunity, a court may also consider “[i]f a plaintiff 

has been provided a reasonable opportunity to amend after a governmental entity files its plea to 

the jurisdiction, and the plaintiff’s amended pleading still does not allege facts that would 

constitute a waiver of immunity.” Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). 

Because we find that Skill Zone’s DJA claim alleging that Sections 1.4(a)(2) and 3.12(a) 

are unconstitutionally vague is facially invalid, we conclude that Skill Zone’s pleadings 

conclusively negate the existence of subject-matter jurisdiction over this constitutional claim. 

Further, amendment of Skill Zone’s pleadings as to this claim could not allege facts that would 

constitute a waiver of immunity and invoke jurisdiction. See Meyers v. JDC/Firethorne, Ltd., 

548 S.W.3d 477, 486 (Tex. 2018). We will not afford Skill Zone an opportunity to replead this 

claim.

Moreover, because Skill Zone’s claim challenging Section 2.1(b)(2) is not ripe, the trial 

court lacked subject matter jurisdiction over the action. But aside from the claim not being ripe 

for judicial review, the petition does not affirmatively establish a complete lack of jurisdiction

over this claim. Thus, the pleadings related to this claim do not demonstrate an incurable defect 

in jurisdiction and Skill Zone should be given an opportunity to amend as to its claim

challenging Section 2.1(b)(2) before said claim is dismissed with prejudice. 

DISPOSITION

Having determined that Skill Zone’s claim seeking a declaratory judgment regarding 

Section 2.1(b)(2) of the Regulations is not ripe for judicial review but that Skill Zone should be 

allowed an opportunity to amend, we reverse the trial court’s order granting the County’s plea to 

the jurisdiction as to Skill Zone’s Section 2.1(b)(2) claim, and remand that claim to allow Skill 

Zone the opportunity to amend its pleadings and for further proceedings consistent with this 

opinion. In all other respects, we affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered March 28, 2024. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

MARCH 28, 2024 

NO. 12-23-00231-CV

SKILL ZONE USA, LLC, 

Appellant 

V.

VAN ZANDT COUNTY, TEXAS, 

Appellee

Appeal from the 294th District Court 

of Van Zandt County, Texas (Tr.Ct.No. 22-00088) 

THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this Court that the judgment of the 

court below should be affirmed in part, and reversed and remanded in part. 

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s order 

granting the County’s plea to the jurisdiction be reversed as to Skill Zone USA LLC’s Section 

2.1 (b)(2) claim, and that the case be remanded to allow Skill Zone the opportunity to amend its 

pleadings as to that claim. 

It is further ORDERED, ADJUDGED and DECREED that the order of the court below is 

affirmed in all other respects.
It is further ORDERED that each party bear their own costs in this cause expended in this 

Court; and that this decision be certified to the court below for observance. 

Brian Hoyle, Justice. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.