REVERSE; RENDER; and REMAND a nd Opinion Filed May 11, 2021 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00813-CV ROBERT “BOB” LONDON IN HIS O FFICIAL CAPACITY AS TOWN SECRETARY FOR ST. PAUL, TEX AS AND CAMDEN “CAM” DAVIS IN HIS OFFICIAL CAPACITY AS (FOR MER) CHAIR OF THE PLANNING & ZONING COMMISSION FOR THE TOWN OF ST. PAUL, TEXAS, Appellants V. RICK VAN PARK, LLC D/B /A AAA PARK RV, Appellee On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-06629-2019 MEMORANDUM OPINION Before Justices Myers, Par tida-Kipness, and Garcia Opinion by Justice Garcia This is an interlocutory appeal from the trial court’s denial o f Robert London and Camden Davis’s (together, the “Officials”) plea to the juri sdiction challenging Rick Van Park’s suit against th em for failing to issue a certif icate of no action on a preliminary development plan in the town of St. Paul (the “Town ”). In seven issues, the Officials argue the trial cour t erroneously denied the pleabecause Park’s claims do not fall within the ultra vires exception to immunity.–2– As discussed below, we conclude that the ultra vires claims lac k a properly pleaded foundation and render judgment on those claims, but rem and to afford Park the opportunity to replead.
I. B ACKGROUND Rick Van Park (Park) submitted a preliminary plan for developme nt to the Town. The plan application was denied for failure to comply wit h certain ordinances. Park revised the application and submitted it again. The resubm ission was deemed deficient, not properly filed, a nd substantially incomplete per the Town ordinances and no further ac tion was taken. Park claimed the Town had not ac ted properly and demanded that the Town issue a certificate of no action under T EX . L OCAL G OV ’ T C ODE §212.009(d). The Town attorney responded that there was no obligation to do so b ecause the resubmission was not properly f iled. Park initiated this suit. Park’s second amended petition a sserted claims against the Town , the Planning and Zoning (“P&Z”) Commission, London, as town secreta ry, and Davis, the former chair of the P&Z Co mmission, and asserted two claims : (1) a request for declaratory relief that Park filed an application for plat appr oval; the municipal authority responsible for approving plats failed to act; he req uested a certificate of no action; defendants were requi red to provide him with a certi ficate of no action; and defendants failed and refused to provide him with a certifi cate of no action; and (2) injunctive relief to compel defendants to comply with Local Government Code–3– § 212.009(d) by issuing a certificate of no action. The defenda nts all filed a plea to the jurisdiction. Before the hearing, Park filed a third amended petition, droppi ng the Town and the P&Z Commission as defe ndants. The amended petition seek s declaratory and mandamus relief against London and Davis for alleged ultra vires conduct in refusing to issue a certificate of no action under T EX

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. G OV ’ T C ODE A NN . § 212.009(d). The plea to the juri sdiction was amended to address these allegations and subsequently denied. The Offi cials appeal from that order.
II. A NALYSIS Ultra Vires The Officials raise overlapping and interrelated issues. They a rgue that the court erred by denying the plea t o the jurisdiction because the ultra vires claims against the Officials for failing to issue a no action certific ate under T EX

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. G OV ’ T C ODE A NN 212.009(d) are not supported by statute or any other law requi ring or authorizing either individual to take any action. They also con tend that Park’s claims are precluded by the redunda nt remedies doctrine. The Officials further argue that even if ultra vires claims are permissible, Davis is not a proper party because he is no longer the P&Z cha ir, the discretionary determination by the town engineer, attorney, and secretary tha t the application was incomplete and not properly filed negates the ultra vires claim , and Park’s claims fail because they are based on a lleged ministerial duties under the amended statute that does not apply.–4– All these issues turn on whether Park properly pleaded an ultra vires exception to immunity. We thus begin with the Officials’ first, second, a nd fourth issues. Sovereign immunity protects the State of Texas and its agencies from suit and liability, whereas governmental imm unity provides similar prote ctions to the State’s political subdivisions. Travis Cent. Appraisal Dist. v. Norman , 342 S.W.3d 54, 57– 58 (Tex. 2011). Sovereign and governmental immunity “shield the public from the costs and consequences of impr ovident actions of their governme nts.” Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). Because a municipality is a political subdivision of the State, both the municipality and its agents gene rally have governmental immunit y, which protects them from lawsuits when the municipality is performing a govern mental function, unless the Legislature has expressly waived that immunity. See City of Austin v. Util. Assocs, Inc ., 517 S.W.3d 300, 307–08 (Tex. A pp.—Austin 2017, pet. denied). A lawsuit against a government actor in his official capacity i s effectively a suit against the entity, and the actor generally has the same i mmunity enjoyed by the entity. See Univ. of Texas Health Sci. Ctr. at San Antonio v. Bailey , 332 S.W.3d 395, 401 (Tex. 2011); see also City of El Paso v. Heinrich , 284 S.W.3d 366, 380 (Tex. 2009). Texas recognizes an excepti on to that rule, however, for “ultra vires” acts. Id

. To bring an ultra vires claim ag ainst a government actor, the p laintiff must “allege, and ultimately prove, th at the officer acted without l egal authority or failed to perform a purely ministerial act.” Chambers-Liberty Ctys. Navigation Dist. v.–5– State , 575 S.W.3d 339, 345 (Tex. 2019); see also Houston Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 161 (Tex. 2016). “The ultra vires suit seeks to enforce existing policy, not alter it.” Stiefer v. Moers , No. 14–14–00617–CV, 2015 WL 6950104, at *3 (Tex. App.—Hous ton [14th Dist.] Nov. 10, 2015 , pet. denied) (mem. op.). Additionally, the exception to immunity allows only prospective declaratory or injunctive relief, not retroactive relief. Id . (citing Heinrich , 284 S.W.3d at 374–77).
The Plea Procedurally, the assertion of sovereign or governmental immun ity implicates the trial court’s jurisdiction and may therefore be asserted in a plea to the jurisdiction. Houston Belt & Terminal Ry. Co. , 487 S.W.3d at 160; see also Texas Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225–26 (Tex. 2004). In a plea to the jurisdiction, a def endant may challenge either the plaintiff’s pleadings or the existence of jurisdictional facts on the ground that they d o not support subject matter jurisdiction. Miranda , 133 S.W.3d at 226–27. We review the trial court’s ru ling on a plea to the jurisdictio n de novo. Id. at 228; City of Plano v. Hatch , 584 S.W.3d 891, 895 (Tex. A pp.—Dallas 2019, no pet.). In performing this review, we do not look to the merits of the case but consider only the pleadings and evidence relevant to the jurisdictional inqui ry. City of Seagoville v. Lytle , 227 S.W.3d 401, 408 (Tex. A pp.—Dallas 2007, no pet.).–6– At the core of Park’s ultra vires claim is his contention that the Town was required to approve or deny his plan within thirty days of it b eing filed, or he was entitled to a certificate of no action—essentially an approved plan. Park requested the certificate, and claims London and Davis improperly failed to issue it. Park’s third amended petition seek s declaratory and mandamus re lief against the Officials for “failing to perform required duties in their official capacities.” To this end, the petition states: On information and belief . . . London is responsible for issuing certificates of no action in approval of plats and/or is the re cords manager officer . . . who is responsible for the disposition of town records and documents obtaining approval of plats submitted to the City . . . Davis is the Chairman of the [P&Z Commission]. (Emphasis added). Park seeks d eclarations about the applicable version of the government code and the filing of the plan as well as a declara tion that the Town and P&Z Commission approved the plan by failing to act within t hirty days. Regarding Davis and London, Park seeks a declaration that the O fficials engaged in ultra vires conduct by “failing to and/or refusing to issue a c ertificate of no action.” Park further seeks a declaration that he is “entitled to a cert ificate from the [Town] and/or P&Z stating that the plan was filed and “the [Town] and/ or P&Z did not act” on the plan within the required time. The mandamus relief requested inc ludes an order requiring “Lond on and/or Davis” to issue a certificate of no action stating that the Tow n and P&Z Commission failed to act, and an order prohibiting or enjoining the Offici als from refusing to–7– issue a certificate of no action. In addition to the pleadings, the evidence before the court included the Town ordinances, the preliminary plan submis sions, and correspondence between the partie s. Within this framework, we e xamine whether there are sufficient jurisdictio nal facts to support claims tha t Park and London acted without legal authority or failed to perform a purely ministeri al act. See ChambersLiberty , 575 S.W.3d at 345. Did the Officials Engage in Ultra Vires Conduct? To determine if a plaintiff has pleaded a viable ultra vires ac tion, the court must construe the relevant provis ions that define the scope of the governmental body’s legal authority, apply those statutes to the facts as pl eaded by the plaintiff, and ascertain whether those facts constitute acts beyond the go vernmental body’s legal authority. City of New Braunfels v. Tovar , 463 S.W.3d 913, 919 (Tex. App.— Austin 2015, no pet.). For an act to be beyond authority, the “ relevant statutory or constitutional provisions” must g ive the official some authorit y, but not absolute authority, and the official must act beyond the specified limit ations. Tex. Dept. of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.—Austin 2011, pet. denied). For an act to be ministerial, the law must be one that“prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Sw. Bell Tel., L.P. v. Emmett , 459 S.W.3d 578, 587 (Tex. 2015). On the other hand, discretionary acts “ar e those that require–8– the exercise of judgment and personal deliberation.” City of Houston v. Houston Municipal. Employees Pension Sys ., 549 S.W.3d 566, 576 (Tex. 2018). Responsibility for issuing a certificate of no action arises un der T EX

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. G OV ’ T C ODE A NN . §212.009, the prior version of which provided: (a) The municipal authority responsible for approving plats shall act on a plan or plat within 30 days after the date the plat is filed. A plat is approved by the municipal authority unless it is disapproved wi thin that period.

. . . (d) If the municipal authority responsible for approving plats fails to act on a plat within the prescribed period, the authority on request shall issue a certificate stating the date the plat was filed and tha t the authority failed to act on the plat within the period. T EX

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. G OV ’ T C ODE A NN . §212.009 (a), (d). 1 (Emphasis added). We look to the Town ordinances to ascertain th e Town’s municipal authority res ponsible for approving plats. Town Ordinance 100 pertains to how preliminary plans and final plats are considered. Section 3.1 provides: The subdivider shall prepare and submit to the Planning and Zon ing Commission a Preliminary Plan in accordance with the regulation s of this ordinance for its review an d recommendations. The Planning and Zoning Commission shall take action on the Preliminary Plan wit hin thirty (30) days of the time the plan was properly filed, in ac cordance with the conditions set forth in Section 4.1. The Preliminary P lan shall then be submitted to the Town C ouncil for final action. The Tow n

1 The statute was amended effectiv e September 1, 2019. Both the c urrent and prior version of the statute require the issuance of a certificate of no authority by “the m unicipal authority responsible for approving plats.” The amended statute refers to a “plan or plat.” See Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. Amended by Acts 2019, 86th Leg., ch. 951 (H.B. 3167), §§ 3, 4, eff. Sept. 1, 2019.–9– Council shall act on the Preliminar y Plan within thirty (30) da ys of the action taken by the Planni ng and Zoning Commission. After going through the preliminary plan process, a final plat then proceeds again to the P&Z Commission for recommendation, and the Town Co uncil determines approval. Specifica lly, the Ordinance provides: Section 3.3 Time for Preparing Final Plat. After approval of the Preliminar y Plan by the Town Council, andwithin one hundred and eighty (180) days after such approval, the subd ivider may prepare a Final Plat of all or a portion of the land includ ed in the Preliminary Plan for submission to and consideration by the Pla nning and Zoning Commission for final recommendations. Section 3.4 When Final Plat is considered by the Town Council. Upon final action on any such Final Plat by the Planning and Zo ning Commission, the same shall be ref erred to the Town Council, and the Town Council shall at its next succeeding meeting, consider suc h Final Plat for acceptance of the dedications to the public therein se t forth, provided that the plat shall in all things fully comply with th e terms and provisions of this Ordinance. Town Council shall act on the Fin al Plat within thirty (30) days from the date such plat was approved by the Commission. The Town Ordinance makes clear t hat the Town Council is the mun icipal authority responsible for plats. And under the Local Government Code, the municipal authority responsible for issuing plats is charged wi th issuing the certificate of no action. See T EX

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. G OV ’ T C ODE A NN . § 212.009. Park’s pleading tacitly acknowle dges that the municipal authori ty is responsible for issuing a no action certificate, stating that “ if the authority does not act on the plat, the authority must issue a certificate stating it did not take action upon request.” But Park has not i dentified anything in §212.009 or any of the Town–10– ordinances establishing that London and Davis are the “municipa l authority,” nor has he identified any statute or ordinance making London or Dav is responsible for issuing such certificates. Instead, Park posits that because th e Town secretary and P&Z Commission chair sign final plats that are approved by the Town, and the Town secretary is the individual to whom plat applications are submi tted, these officials would presumably have to sign a certificate of no action. At th e hearing on the plea, Park admitted that he did not know who was responsible for issu ing the certificate and suggested that “we need to pi ck a person who has the author ity to issue it.” Signing and acknowledging official Town documents, however, doe s not equate to a legal duty to issue certificates of no action. The narrow ultra vires exception requires identification of the specific authority del ineating an official’s ministerial duty. See Beeman v. Livingston , 468 S.W.3d 535, 538 (Tex. 2015) (whether official’s actions were ultra vires depended on whethe r the statute required anything from him); Hall v. McRaven , 508 S.W.3d 232, 240 (Tex. 2017) (ultra vires claims against chancellor could only seek to compel chancellor to follow the directives directly and clearly imposed on him). “[M]erely asse rting legal conclusions or labeling a defenda nt’s actions as ultra vires, i llegal, or unconstitutional is insufficient to plead an ultra vires claim— what matters is whether the facts alleged constitute ac tions beyond the governmental ac tor’s statutory authority, properly construed.” Tex. Dep’t of Transp. v. Sunset Transp., Inc ., 357 S.W.3d 691, 702 (Tex. App.—A ustin 2011, no pet.).–11– Davis previously volunteered as the chair of the P&Z Commission but is no longer on that commission or any other Town board or commission . In addition, the Town Ordinance reflects that the P&Z Commission serves only in an advisory capacity to the municipal authority responsible for approving p lats—the Town Council. While London is the Town secretary, nothing in the rec ord demonstrates that he has any specific responsibility or authority regarding certificates of no action. It is well established that an ultra vires claim may not be bro ught against “a nominal, apex representative who has noth ing to do with the allegedly ul tra vires action” because ultra vires claims against a government actor must be c onfined to that defendant’s conduct. Patel v. Tex

. Dep’t of Licensing & Regulation , 469 S.W.3d 69, 76 (Tex. 2015). Neither London nor Park have any authority to approve plats or issue certificates of no action. Neither can provide the relief Park seeks. See, e.g., Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (dismissing ultra vires claims based on redressability aspect of standing because count y commissioner had no authority or responsibility to act). Thus, neither can be pr operly charged with failure to perform a ministerial duty for approving a plat or i ssuing a certificate of no authority. See Hall , 508 S.W.3d at 242–43; Heinrich , 284 S.W.3d at 372. Accordingly, Park has failed to allege a viable ultra vires cla im against the Officials and their immunity is not waived.–12– The Officials offer “an additio nal reason” why Park cannot obt ain ultra vires relief against “anyone.” Specifica lly, the Officials maintain t hat the current version of T EX

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. G OV ’ T C ODE A NN . § 212.009, which is applicable to filings after September 1, 2019, does not apply to Park’s July 31, 2019 filin g of a preliminary plan because the prior version of §212.009 did not apply to a “ plan” and the definition of a “plat” did not i nclude a preliminary plat. We note at the outset that the O fficials’ amended plea to the j urisdiction states that Park “has a cause of action, if any, against the municipal authority responsible for approving plats” under §212. 009. In addition, the Officials have argued here, and in the court below that Park’s claims against the Officials fai l because they are not “the municipal authority responsible for approving plats.” Both the prior and amended statutes direct the “m unicipal authority responsible fo r approving plats” to issue certificates of no action. See Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. Amended by Acts 2019, 86th Leg., ch. 951 (H.B. 3167), §§ 3, 4, eff. Sept. 1, 2019. But we need not parse the parties’ arguments or compare s tatutory revisions and definitions to determine whet her there are a dditional reaso ns why Park may not have a claim against unnamed par ties. The issue is whether Park has properly pleaded ultra vires claims against the named defendants, London and Park, and we–13– have concluded that he has not. 2 The Officials’ first, second, and fourth issues are sustained. Repleading The Declaratory Judgments Act waives immunity as to certain cla ims, but it is not a general waiver of immunity. See Tex. Parks & Wild life Dep’t v. Sawyer
Trust , 354 S.W.3d 384, 388 (Tex.2011). F or example, the DJA waives g overnmental immunity against claims that a statute is invalid but does not waive immunity against claims seeking a declaration of the claimant’s statutory rights

. See Tex. Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 621 (Tex. 2011); see also City of Dallas v. Tex. EZPawn, L.P. No. 05-12-01269-CV, 2013 WL 1320513, at *2–3 (Tex. App.— Dallas Apr. 1, 2013, no pet.) (mem . op.) (no waiver of immunity when a party seeks interpretation of statute or ordinance). The DJA cannot be used to circumvent immunity. Heinrich , 284 S.W.3d at 374. Although private parties may s eek declaratory relief in connect ion with alleged ultra vires, see Sefzik , 355 S.W.3d at 621–22, we hav e concluded that Park has not properly pleaded an ultra vires claim. Accordingly, dec laratory judgment is not a viable remedy. 3

2 Likewise, we need not consider the Officials’ remaining issues offering additional reasons why the ultra vires claims fail. See T EX

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. P. 47.1. 3 Acknowledging that we might determine that these Officials are not proper parties to respond to his ultra vires claims, Park requests that we remand so that he can conduct discovery on the proper parties for such claims. The Town Ordinance reflects, however, that no sing le official is charged with issuing a no action certificate. Instead, the Town Ordinance commits that ob ligation to the Town Council as the municipal authority for approving plats.–14– When the pleadings do not allege facts sufficient to affirmativ ely demonstrate jurisdiction, but the pleading de fects are curable by amendment , the issue is one of pleading sufficiency, and the plai ntiff should be afforded an o pportunity to amend. Texas A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 839–40 (Tex. 2007). Dismissal without repleading is required only when the pleading s or jurisdictional evidence demonstrate that the p laintiff’s suit falls outside an y waiver of sovereign immunity. See id. Park’s petition includes a reque st for mandamus relief, albeit against the wrong parties. As the Officials acknowledge, Park could have pu rsued a mandamus action against the Town requesting that the Town Council issue a certificate of no action. See Bd. Of Trs. of Hou. Firefighters Re lief & Ret. Fund v. City of Houston , 466 S.W.3d 182,184 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (writ of mandamus sought to require governmental board to comply with st ate statute); In re Woodfill , 470 S.W.3d 473, 481 (Tex. 2015) (issuing conditional writ of mandamus against city council for failing to perform its collective mini sterial duty); see also Howeth Inv., Inc. v. City of Hedwig Village , 259 S.W.3d 877, 896 (Tex. App.— Houston [1st Dist.] 2008, pet. denied) (remedy for denial of pl at application or certificate of no action is generally mandamus relief or a mand atory injunction in the trial court); see also Walker v. Parker , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (Texas law generally authorizes mandamus relief to compel a public official or body to either perform a ministerial duty or correc t a clear abuse of–15– discretion). Thus, while the pleadings do not demonstrate a wai ver of immunity for ultra vires claims, neither do they affirmatively negate waiver altogether. Consequently, Park should be affo rded the opportunity to replea d.
III. C ONCLUSION We reverse the trial court’s order denying the plea to the juri sdiction and render judgment dismissing Park’s ultra vires claims against Lo ndon and Davis. We remand to allow Park an opportunity to replead and for further proceedings consistent with this opinion.

200813F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE–16– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROBERT “BOB” LONDON IN HIS OFFICIAL CAPACITY AS TOWN SECRETARY FOR ST. PAUL, TEXAS AND CAMDEN “CAM” DAVIS IN HIS OFFICIAL CAPACITY AS (FORMER) CHAIR OF THE PLANNI NG & ZONING COMMISSION FOR THE TOWN OF ST. PAUL, TEXAS, Appellants

No. 05-20-00813-CV V. RICK VAN PARK, LLC D/B/A AAA PARK RV, Appellee On Appeal from the 471st Judicial District Court, Collin County, Texas Trial Court Cause No. 471-06629- 2019. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness participating.

In accordance with this Court’s opinion of this date, the tria l court’s order is REVERSED and judgment RENDERED on Rick Van Park, LLC D/B/A AAA Park RV’s ultra vires claims and this cause is REMANDED to the trial court to allow Rick Van Park, LLC D/B/A A AA Park RV to replead and for f urther proceedings consistent with this opinion.–17– It is ORDERED that appellant ROBERT “B OB” LONDON IN HIS OFFICIAL CAPACITY AS TOWN SECRETARY FOR ST. PAUL, TEXAS AND CAMDEN “CAM” DAVIS IN HIS OFFICIAL CAPA CITY AS (FORMER) CHAIR OF THE PLANNING & ZONING COMMISSI ON FOR THE TOWN OF ST. PAUL, TEXAS recover their costs of thi s appeal from appellee RICK VAN PARK, LLC D/B/A AAA PARK RV.
Judgment entered this 11th day of May 2021.