# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV CITY OF PEARSALL , Appellant

v. Sergio CORREA , Appellee From the 218th Judicial District Court, Frio County, Texas Trial Court No. 16

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- 00464CVF Honorable Russell Wilson, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice Delivered and Filed: November 14, 2018 AFFIRMED City of Pearsa ll appeals the trial court’s order denying its plea to the jurisdiction with regard to Sergio Correa’s claim seeking a declarat ion that the City’s ordinance number 2012

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- 179 is invalid or unconstitutional. 1 We affirm the trial court’s order.

1 The trial court’s order granted the City’s plea to the jurisdiction as to six other claims, but that portion of the trial court’ s order is not challenged on appeal.04

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- B ACKGROUND In 2012, t he City passed ordinance number 2012

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- 179 which allow ed residents to own and operate a gaming room with eight

- liner machines so long as the owner paid an annual permit application fee of $3,000.00 per game room, and an annual inspection permit fee of $1,800.00 per machine. In September of 2016, the City seized forty

- four eight

- liner machines owned by Correa claiming the seizure was authorized by the ordinance. On November 30, 2016, Correa sued the City alleging numerous claims, including a cl aim seeking a declaration that the ordinance is unconstitutional. The City filed a plea to the jurisdiction as to all of Correa’s claims. The trial court granted the plea as to all claims except the claim seeking a declaration that the ordinance is
uncon stitutional. The City appeals. S TANDARD OF R EVIEW We review a trial court’s ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 384 (Tex. 2016). I f the plea to the jurisdiction challenges the pleadings, we liberally construe the pleadings to determine if the plaintiff “has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). If the plea to the j urisdiction challenges the existence of jurisdictional facts, “we consider relevant evidence submitted by the parties to determine if a fact issue exists.” Suarez v. City of Tex. City , 465 S.W.3d 623, 632

– 33 (Tex. 2015). D ISCUSSION The City contends the trial court erred in denying its plea as to Correa’s declaratory judgment claim. Correa responds the City’s i mmunity is waived under the Uniform Dec laratory Judgments Act (UDJA). Section 37.004 (a) of the UDJA allows a person “whose rights, status, or oth er legal relations are affected by a ... municipal ordinance ... [to] have determ ined any question of ...04

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- validity a rising under the ... ordinance ... and obtain a declaration of rights, status, or other legal relations thereunder.” T EX . C IV . P RAC . & R EM . C ODE A NN . § 37.004(a). Section 37.006(b) further provides, “ In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard.” Id . § 37.006(b). The Texas Supreme Court has expre ssly recognized the UDJA “waives a municipality’s immunity in a suit that involves the validity of a municipal ordinance.” City of Dal l . v. Albert , 354 S.W.3d 368, 378 (Tex. 2011) ; see also City of El Paso v. Heinrich , 284 S.W.3d 366, 373 n.6 (Tex. 2009) (“ For claims challenging the validity of ordinances or statutes, however, the Declaratory Judgment Act requires that the relevant governmental entities be made partie s, and thereby waives immunity.”); Turner v. Robinson , 534 S.W.3d 115, 127 (Tex. App.

— Hous ton [14th Dist.] 2017, pe t. denied) (noting UDJA “ clearly and unambiguously waives the sovereign immunity of municipalities in any declaratory

- judgment action involving the validity of a municipal ordinance ”); Porter v. Montgomery Cty

. , No. 09

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- 00459

- CV, 2017 WL 629487, at *3 (Tex. App.

— Beaumont Feb. 16, 2017, no pet.) (mem. op.) (noting “ with respect to claims challenging the validity or constitutionality of an ordinance or a statute, the Texas Supreme Court has recognized that the Declaratory Judgments Act waives immunity ” ). In addition to the express authority provided by the UDJA to bring a declaratory judgment action to determine any question regarding the validity of an ordinance, the City’s ordinance in this case directly affects Correa’s right to own and operate a gaming room with eight

- liner machines ; therefore , a justiciable controversy exists as t o the validity of the ordinance. See City of Austin v. Pendergrass , 18 S.W.3d 261, 264 (Tex. App.

— Austin 2000, no pet.) ; City of Schertz v. Parker , 754 S.W.2d 336, 338 (Tex. App.

— San Antonio 1988, no writ) ; S. Nat ’l Bank of Hous

. v. City of Austin , 582 S.W.2d 229, 236

- 37 (Tex. Civ. App.

— Tyler 1979, writ ref ’ d n.r.e.)

.04

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- C ONCLUSION Because section 37.004(a) of the UDJA expressly authorizes Corre a to seek a declara tory judgment to determine the validity of the ordinance, and the City’s immunity is waived as to such a claim, the trial court did not err in denying the City’s plea as to that claim . T he trial court’s order is affirmed. Sandee Bryan Marion, Chief Justice