Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-16-00038-CV

CITY OF FLORESVILLE, Texas, City of Floresville City Council, City of Floresville City 

Planning and Zoning Committee, and the Wilson County Appraisal District,

Appellants

v.

STARNES INVESTMENT GROUP, LLC,

Appellee

From the 81st Judicial District Court, Wilson County, Texas

Trial Court No. 15-06-0367-CVW

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice

Marialyn Barnard, Justice

Jason Pulliam, Justice

Delivered and Filed: September 28, 2016

REVERSED AND RENDERED

This is an accelerated appeal from the trial court’s denial of a plea to the jurisdiction filed 

by the City of Floresville, Texas; City of Floresville City Council; City of Floresville City Planning 

and Zoning Committee; and the Wilson County Appraisal District (collectively, the “appellants”). 

We reverse the trial court’s order denying appellants’ plea to the jurisdiction and render a dismissal 

with prejudice of appellee’s claims against appellants.
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BACKGROUND

The facts in the underlying lawsuit are for the most part undisputed. In 2010, the City of 

Floresville (“the City”) began to update and digitize its municipal city limits map. In 2011, Starnes 

Investment Group, LLC (“Starnes”) began looking at property to develop as a commercial 

recreational vehicle park. In December 2011, Starnes began a feasibility study on property located 

in Wilson County. Starnes met with Wilson County and City officials, and was informed that the 

property was partially inside and partially outside the City, and entirely inside Wilson County.

In Spring 2012, the City’s Code Compliance and Permitting Officer told Starnes that she 

saw no problem with approval of its proposed RV park so long as it complied with the City’s 

Recreational Vehicle Development Ordinance. Starnes purchased the property and, on March 29, 

2012, filed its zoning application with the City. On June 14, 2012, the City’s attorney told Starnes 

the property was entirely outside the City limits; therefore, the City’s zoning requirements were 

inapplicable. The City’s attorney also told Starnes that approval by Wilson County was still 

required, and, on October 12, 2012, the Wilson County Commissioner’s Court approved the 

project.

In 2013, the City completed its new map, which showed Starnes’s property to be partially 

inside and partially outside the City’s limits. On April 12, 2013, the City’s attorney informed 

Starnes’s attorney about the property’s location within City limits, and that City zoning approval 

was now required. On September 12, 2013, the City approved Starnes’s zoning application, and 

the property was then connected to City water and sewage services.

On June 26, 2015, Starnes sued the appellants alleging: (1) a takings claim under the Texas 

Constitution, (2) due process and equal protection violations, (3) violation of the Texas Vested 

Property Rights Act, (4) tortious interference with prospective business relations, (5) negligence 

under the Texas Tort Claims Act, and (6) civil conspiracy. Starnes also sought a declaratory 
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judgment as to its rights under Texas statutes and relevant City and Wilson County ordinances and 

regulations. The premise of Starnes’s lawsuit is that it was harmed by the City’s delay in approving 

its zoning application and delay in providing water and sewage from March 29, 2012 until 

September 12, 2013. 

On July 27, 2015, the appellants filed a “Plea to the Jurisdiction, Special Exceptions, and 

General Denial.” About five months later, the trial court conducted a hearing on the plea to the 

jurisdiction and special exceptions. At the end of the hearing, the trial court orally rendered its 

decision granting the special exceptions and allowing Starnes to re-plead no later than December 

30, 2015. The trial court set a hearing for January 5, 2016 to sign the order. 

On December 30, 2015, Starnes filed an amended petition alleging three causes of action: 

(1) a takings/inverse condemnation claim under the Texas Constitution, (2) due process and equal 

protection violations, and (3) violations of the Texas Vested Property Rights Act. Starnes did not 

request declaratory or injunctive relief in its amended petition. On January 5, 2016, the trial court 

signed an “Order on Plea to Jurisdiction and Special Exceptions” in which the trial court denied 

the plea and granted the special exceptions. Appellants filed this appeal arguing Starnes’s 

amended petition failed to allege a claim for which appellants’ governmental immunity has been 

waived and, therefore, the trial court lacked jurisdiction to hear the claims asserted by Starnes.

COMPLAINTS RAISED FOR FIRST TIME ON APPEAL

Before considering the merits of appellants’ arguments on appeal, we first consider whether 

appellants may challenge Starnes’s amended petition. Starnes argues the invited error doctrine 

precludes appellants from complaining that the trial court allowed Starnes to re-plead rather than 

granting appellants’ plea to the jurisdiction. Starnes contends appellants asked for and received 

the very relief they sought—that the trial court sustain their special exceptions. According to 

Starnes, because appellants’ special exceptions were sustained and because appellants never filed 
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a pleading challenging Starnes’s amended petition, appellants’ complaints on appeal about the 

amended petition are barred.

Appellants contend on appeal that Starnes’s amended petition was the live pleading before 

the trial court “when the trial court entered its Order granting Appellants’ special exceptions, but 

denying the Plea on January 5, 2016.” Appellants contend this left the amended petition “as the 

live pleading to which the plea to jurisdiction necessarily attached.” However, the trial court’s 

ruling denying the plea to the jurisdiction and sustaining the special exceptions was rendered on 

December 7, almost one month before the amended petition was filed. And, it is clear from the 

express language of the written order that the trial court did not consider the amended petition 

when it denied appellants’ plea to the jurisdiction. However, this does not end the inquiry into 

whether appellants may challenge on appeal an amended petition that was not before the trial court 

when the trial court denied appellants’ plea to the jurisdiction.

Sovereign immunity deprives courts of subject-matter jurisdiction. Rusk State Hosp. v. 

Black, 392 S.W.3d 88, 95 (Tex. 2012). If immunity is first asserted on interlocutory appeal, an 

appellate court is not precluded “from having to consider the issue at the outset in order to 

determine whether it has jurisdiction to address the merits.” Id. “Under Rusk, an appellate court 

must consider all of a defendant’s immunity arguments, whether the governmental entity raised 

other jurisdictional arguments in the trial court or none at all.” Dallas Metrocare Servs. v. Juarez, 

420 S.W.3d 39, 41 (Tex. 2013); see also Clint Indep. Sch. Dist. v. Marquez, No. 14-0903, 2016 

WL 1268000, at *14 (Tex. Apr. 1, 2016) (“Subject-matter jurisdiction cannot be created by waiver, 

and parties may raise challenges to subject-matter jurisdiction for the first time on appeal.”). 

Therefore, although none of appellants’ complaints about Starnes’s amended petition were before 

the trial court when the trial court denied appellants’ plea to the jurisdiction, “we must consider all 
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of [appellants’] immunity arguments” for the first time in this appeal.1 Dallas Metrocare Servs., 

420 S.W.3d at 41.

PLEA TO THE JURISDICTION

In a single issue on appeal, appellants assert that, despite being afforded the opportunity to 

re-plead and cure jurisdictional defects, Starnes’s amended petition fails to allege a claim for which 

appellants’ governmental immunity has been waived. Therefore, appellants argue the trial court 

erred in denying their plea to the jurisdiction.

A. Standard of Review

Whether a court has subject-matter jurisdiction over a case is a question of law, which we 

review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 

There are two general categories of pleas to the jurisdiction: (1) those that challenge only the 

pleadings, and (2) those that present evidence to challenge the existence of jurisdictional facts. Id.

at 226-27. When, as here, a plea to the jurisdiction challenges only the pleadings, we determine 

whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear 

the case. Id. at 226. Our de novo review of such challenges looks to the pleader’s intent and 

construes the pleadings in its favor. Id. If the pleadings lack sufficient facts to affirmatively 

demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in 

jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should generally be given an 

opportunity to amend. Id. at 226-27.

 1 Following oral arguments in this appeal, this court allowed both parties to file post-submission briefs addressing 

whether we could review the appellants’ jurisdictional challenges to the amended petition. In its post-submission 

brief, Starnes recognized this court could do so.
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B. Takings/Inverse Condemnation Claim

In its amended petition, Starnes asserted the City’s wrongful delay in approving its zoning 

application and delay in providing water and sewage services constituted a taking and deprived it 

of its reasonable investment backed expectations. Starnes contended it was denied all 

economically beneficial or productive use of its property from March 29, 2012—when the City 

zoning applications were originally filed—until September 12, 2013—when the applications were 

approved.

There is a clear and unambiguous limited waiver of immunity for valid claims under article 

I, section 17 of the Texas Constitution, the “takings clause,” which provides that “[n]o person’s 

property shall be taken, damaged or destroyed for or applied to public use without adequate 

compensation being made . . . .” TEX. CONST. art. I, § 17(a). If the government appropriates 

property without paying adequate compensation, the owner may bring an inverse condemnation 

claim to recover the resulting damages. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). 

An inverse condemnation may occur when the government physically appropriates or invades the 

property, or when it unreasonably interferes with the landowner’s right to use and enjoy the 

property, such as by restricting access or denying a permit for development. Id.

To plead a valid inverse condemnation claim and establish waiver of immunity under the 

takings clause, a plaintiff must allege that the governmental entity (1) intentionally performed 

certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or 

destroying the plaintiff’s property (3) for public use. Gen. Servs. Comm’n v. Little-Tex Insulation 

Co., 39 S.W.3d 591, 598 (Tex. 2001); City of San Antonio v. Alamo Aircraft Supply, Inc., 448 

S.W.3d 507, 511 (Tex. App.—San Antonio 2014, no pet.). A governmental entity does not have 

immunity from a valid takings claim. Little-Tex Insulation Co., 39 S.W.3d at 598. If, however, 
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the plaintiff fails to allege a valid takings claim, the governmental entity retains its immunity from 

suit. Id. “Whether particular facts are enough to constitute a taking is a question of law.” Id.

In a takings case, “the requisite intent is present when a governmental entity knows that a 

specific act is causing identifiable harm or knows that the harm is substantially certain to result.” 

Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). It is not enough that the 

act causing the harm be intentional—there must also be knowledge to a substantial certainty that 

the harm will occur. City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004). A taking 

cannot rest on the mere negligence of the government. City of Tyler v. Likes, 962 S.W.2d 489, 505 

(Tex. 1997). 

In Jennings, the Texas Supreme Court further explained the type of intent that must be 

shown in order to establish the first element of an inverse-condemnation claim. The court held it 

is not enough to show merely that the governmental entity intended to perform the act that resulted 

in the taking or the damage, because such a standard would hold the governmental entity to a 

stricter standard of liability than a private person engaging in the same acts. 142 S.W.3d at 313.

Moreover, “[w]hen damage is merely the accidental result of the government’s intentional act, 

there is no public benefit and the property cannot be said to have been taken or damaged for public 

use.” Id. (quoting Texas Highway Dep’t v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71 (1949)).

Starnes’s amended petition alleged the following: (1) the City began a project in 2010 to 

update its municipal city limits map; (2) on June 14, 2012—before the mapping project was 

complete—the City told Starnes its property was partially inside and partially outside the City 

limits; (3) on March 29, 2012—again, before the mapping project was complete—the City’s 

attorney told Starnes its property was entirely outside the City limits and, therefore, the City’s 

zoning ordinances did not apply; (4) in 2013, the City completed its mapping project; and (5) on 

April 12, 2013, the City’s attorney told Starnes that its property was partially inside and partially 
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outside the City limits and, therefore, the City’s zoning approval was required. There is no dispute 

that the information intentionally provided by the City’s attorney in March 2012 was incorrect. 

However, Starnes’s amended petition alleges no facts that the information was the result of 

anything more than either a mistake or negligence on the City attorney’s part. Starnes alleges no 

facts that the City knew to a substantial certainty that harm would occur as a result of the delay in 

its mapping project or the incorrect information it provided while the mapping project was ongoing. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 680 (Tex. 2004) (“Nor 

does the record show how Sheffield’s reasonable, investment-backed expectations excluded the 

possibility of a fifteen-month delay in a decision on its development plans. No other aspects of 

the moratorium [on development] make it more like a temporary taking—that is, an unreasonable 

prohibition in the use of property for a defined period—than a mere delay in decision.”). As a 

result, “there is no public benefit and the property cannot be said to have been taken or damaged 

for public use.” Jennings, 142 S.W.3d at 313. Because Starnes alleged no facts, in its amended 

petition, showing an intentional taking, the trial court erred in denying appellants’ plea to the 

jurisdiction on Starnes’s takings/inverse condemnation claim.

C. Due Process and Equal Protection Claims

Starnes’s amended petition alleged appellants deprived it of its interests and business 

expectations in the property, thereby violating its rights of due process under the law. No factual 

allegations were asserted to support this allegation. Presumably, Starnes is alleging the appellants 

violated its due process rights by giving it incorrect information regarding whether its property 

was located inside or outside the City limits and the delay of the approval of its zoning application 

because of the incorrect information.

To state a valid due process or due course of law claim, a plaintiff must first allege the 

existence of a protected right. NCAA v. Yeo, 171 S.W.3d 863, 867 (Tex. 2005). If the plaintiff has 
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a protected right, the court must determine what amount of process is due. Univ. of Tex. Med. Sch. 

v. Than, 901 S.W.2d 926, 930 (Tex. 1995). To have a property interest in a governmental benefit, 

a person must have more than a unilateral expectation of that benefit. Bd. of Regents v. Roth, 408 

U.S. 564, 577 (1972); Smith v. Travis Cty. Bail Bond Bd., 559 S.W.2d 693, 694 (Tex. Civ. App.—

Austin 1977, no writ) (holding plaintiff had no property interest in expired license); see also 

Shrieve v. Tex. Parks & Wildlife Dep’t, No. 03-04-00640-CV, 2005 WL 1034086, at *5-6 (Tex.

App.—Austin May 5, 2005, no pet.) (mem. op.) (holding that Shrieve’s expectation of a permit 

was not a protected property interest). Instead, the plaintiff must have a legitimate claim of 

entitlement to the benefit. See Smith, 559 S.W.2d at 694.

Starnes’s zoning application merely sought a governmental benefit to which it was not 

already entitled. As such, Starnes only had an expectation of the governmental benefit, and its

expectation is not a protected property right. Smith, 559 S.W.2d at 694; Shrieve, 2005 WL 

1034086, at *5-6. This is not a case where a zoning application had been approved or a permit 

had been granted but was later taken away by the governmental entity without cause. See, e.g., 

House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657 (Tex. 1965) (holding that, although license 

to wholesale cigarettes was a privilege that did not have to be granted, once granted, it could not 

be taken away except for good cause; therefore, wholesaler was entitled to due process).

Accordingly, Starnes has failed to demonstrate that sovereign immunity is waived for its due 

process and due course of law claims. Thus, the trial court erred in denying appellants’ plea to the 

jurisdiction on Starnes’s due process claim.

Under its equal protection claim, Starnes contended properties in the vicinity of its property 

have been put to the same or similar use, and Starnes was treated differently from those whose 

situations “are directly comparable in all material respects.” Starnes argued that appellants’ 
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preventing it from developing its property while allowing other properties in the vicinity to be put 

to the same or similar use constituted a denial of equal protection.

Similar to the federal constitution, “the equal protection clause of the state constitution 

directs governmental actors to treat all similarly situated persons alike.” City of Houston v. 

Johnson, 353 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see City of 

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985) (discussing federal constitution’s 

equal protection clause). To assert an equal protection claim, the deprived party must establish 

two elements: (1) that it was treated differently than other similarly-situated parties; and (2) it was 

treated differently without a reasonable basis. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 

939 (Tex. 1998). The purpose of the equal protection clause is to secure persons against intentional 

and arbitrary discrimination. City of Dallas v. Jones, 331 S.W.3d 781, 787 (Tex. App.—Dallas 

2010, pet. dism’d); Leonard v. Abbott, 171 S.W.3d 451, 458 (Tex. App.—Austin 2005, pet. 

denied). However, a plaintiff must allege it is being treated differently from those whose situation 

is directly comparable in all material respects. City of Dallas, 331 S.W.3d at 787. 

Other than a conclusory statement that it was treated differently from others similarlysituated, Starnes failed to allege, in its amended petition, any facts describing the parties similarly 

situated or the nature of the different treatment. Therefore, the trial court erred in denying 

appellants’ plea to the jurisdiction on Starnes’s equal protection claim.

D. Texas Vested Property Rights Act

In its amended petition, Starnes alleged appellants’ “acts, omissions and conduct” violated 

Texas Local Government Code chapter 245. Starnes’s petition does not indicate which section of 

chapter 245 was allegedly violated, but we assume it refers to section 245.002, which provides as 

follows:
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(a) Each regulatory agency shall consider the approval, disapproval, or 

conditional approval of an application for a permit solely on the basis of any orders, 

regulations, ordinances, rules, expiration dates, or other properly adopted 

requirements in effect at the time: (1) the original application for the permit is filed 

for review for any purpose, including review for administrative completeness; or

(2) a plan for development of real property or plat application is filed with a 

regulatory agency. 

(a-1) Rights to which a permit applicant is entitled under this chapter accrue on 

the filing of an original application or plan for development or plat application that 

gives the regulatory agency fair notice of the project and the nature of the permit 

sought. An application or plan is considered filed on the date the applicant delivers 

the application or plan to the regulatory agency or deposits the application or plan 

with the United States Postal Service by certified mail addressed to the regulatory 

agency. A certified mail receipt obtained by the applicant at the time of deposit is 

prima facie evidence of the date the application or plan was deposited with the 

United States Postal Service.

TEX. LOC. GOV’T CODE ANN. § 245.002(a), (a-1) (West 2005).

Generally, the right to develop property is subject to intervening regulatory changes. Quick 

v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998). Section 245.002(a) creates a narrow exception 

to this rule by ensuring that if, after receiving a development application or plan, a regulatory 

agency changes its land-use regulations, the agency cannot enforce such regulatory change to the 

detriment of the applicant. See TEX. LOC. GOV’T CODE § 245.002(a); Shumaker Enters., Inc. v. 

City of Austin, 325 S.W.3d 812, 814 (Tex. App.—Austin 2010, no pet.). “Chapter 245 of the 

[Texas Local Government] Code recognizes a developer’s vested rights and requires a regulatory 

agency to consider approval or disapproval of an application for a permit . . . based on regulations 

and ordinances in effect at the time the original application is filed.” Milestone Potranco Dev., 

Ltd. v. City of San Antonio, 298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied). 

Section 245.002(a-1) clarifies that an applicant’s rights under section 254.002 accrue as of the 

filing “that gives the regulatory agency fair notice of the project and the nature of the permit 

sought.” Shumaker Enters., 325 S.W.3d at 815; see TEX. LOC. GOV’T CODE § 245.002(a-1).
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Starnes did not assert any factual allegations, in its amended petition, to support its 

contention that section 245.002 was violated. Presumably, Starnes is alleging the appellants gave 

it incorrect information regarding the location of its property and thus delayed approval of its 

zoning application filed with the City. But Starnes does not point to any change in the City’s 

existing “orders, regulations, ordinances, rules, expiration dates, or other properly adopted 

requirements” that occurred after Starnes filed its zoning application with the City in 2012. Nor 

did Starnes point to any regulatory change the City attempted to enforce after Starnes filed its 2012 

zoning application. 

“The effect of vested rights under Chapter 245 of the Local Government Code is to ‘freeze’ 

the land use regulations as they existed at the time the first permit application was filed through 

completion of the ‘project;’ in other words, a project with vested rights is not subject to intervening 

regulations or changes after the vesting date.” City of San Antonio v. Rogers Shavano Ranch, Ltd., 

383 S.W.3d 234, 245 (Tex. App.—San Antonio 2012, pet. denied). Here, Starnes’s application 

was approved by the City. Starnes does not argue the City’s zoning laws in effect in March 2012 

should be frozen and applied to it in September 2013. Thus, Starnes’s allegations do not trigger 

application of chapter 245. See Save Our Springs All. v. City of Austin, 149 S.W.3d 674, 682 (Tex. 

App.—Austin 2004, no pet.) (“Stratus and the City are not seeking to apply pre-Ordinance 

development regulations to requested permits, a situation that would trigger the statutory 

requirements and exceptions of chapter 245.”).

Also, in its petition, Starnes requested compensatory damages pursuant to Chapter 245, 

presumably for the delay in approving its application. Starnes did not request declaratory or 

injunctive relief. Chapter 245 “may be enforced only through mandamus or declaratory or 

injunctive relief.” TEX. LOC. GOV’T CODE § 245.006.
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For these reasons, we conclude the trial court erred in denying appellants’ plea to the 

jurisdiction on Starnes’ Local Government Code chapter 245 claim.

RENDER OR REMAND TO ALLOW RE-PLEADING

For the reasons stated above, we hold the trial court erred in denying appellants’ plea to 

the jurisdiction. Ordinarily, this holding would require us to dismiss Starnes’s claims for lack of 

jurisdiction. However, appellate courts generally must remand a case to afford parties an 

opportunity to cure jurisdictional defects in their pleadings when the parties did not have that 

opportunity in the first instance because the jurisdictional issue arose for the first time on appeal.2

See Rusk, 392 S.W.3d at 96-97; Miranda, 133 S.W.3d at 231. Here, however, the appellants did 

not raise their governmental immunity argument for the first time on appeal. Starnes had the 

opportunity to, and did in fact, amend its pleadings in the trial court after the appellants filed their

special exceptions and a plea to the jurisdiction requesting dismissal of Starnes’s suit. See 

Miranda, 133 S.W.3d at 231 (observing that parties had an opportunity to amend their pleadings 

and did so and were not entitled to another opportunity to replead).

The right to amend typically arises when the pleadings fail to allege enough jurisdictional 

facts to demonstrate the trial court’s jurisdiction. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 

864, 867 (Tex. 2002) (“A plaintiff has a right to amend her pleadings to attempt to cure pleading 

defects if she has not alleged enough jurisdictional facts.”). “If 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, then the trial court should dismiss the plaintiff’s action.” Harris Cty. v. Sykes, 136 

 2 In its post-submission brief, Starnes asserted we should remand the cause to the trial court to allow it an opportunity 

to re-plead a second time.
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S.W.3d 635, 639 (Tex. 2004). “Such a dismissal is with prejudice because a plaintiff should not 

be permitted to relitigate jurisdiction once that issue has been finally determined.” Id.

In Sykes, one of the issues before the Texas Supreme Court was whether “a dismissal 

[pursuant to a plea to the jurisdiction] is with prejudice because it fully and finally adjudicates 

whether the claims that were asserted, or that could have been asserted, come within the Texas 

Tort Claims Act’s waiver of sovereign immunity.” Id. at 637. Before dismissing the case, the trial 

court allowed Sykes to file an amended petition, after which the trial court made a final 

adjudication that the Legislature had not waived governmental immunity under the Texas Tort 

Claims Act with respect to any claim Sykes brought against Harris County. Id. at 639.

Accordingly, the Texas Supreme Court determined Sykes “[was] foreclosed from relitigating 

whether the Texas Tort Claims Act waive[d] immunity in this case.” Id. at 639-40. The supreme 

court modified the court of appeals’ judgment to dismiss Sykes’s claims against Harris County 

with prejudice. Id. at 640. 

Here, as in Sykes, Starnes was given an opportunity to amend its original petition after the 

trial court sustained appellants’ special exceptions. Despite amending its takings/inverse 

condemnation claim, Starnes alleged facts that showed only accident or negligence on the part of 

the appellants. Starnes did not allege any facts that the appellants possessed the knowledge 

required to establish an intentional taking. In its amended petition, Starnes did not allege any facts 

to support its due process claim. And, any claim based on the delay in providing zoning approval 

and water and sewage services was based on an expectation of a governmental benefit, and not a 

protected property right. Starnes’s equal protection claim was equally deficient despite being 

afforded an opportunity to amend because Starnes failed to allege any facts supporting this claim 

other than its conclusory statement that it was treated differently from others similarly situated. 

Finally, Starnes requested only compensatory damages under the Texas Vested Property Rights 
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Act and, despite being afforded an opportunity to amend, it alleged no facts that would trigger 

application of the Act. We also note that, again despite being afforded an opportunity to amend, 

Starnes’s amended petition alleged no wrongful acts on the part of the City of Floresville City 

Council; City of Floresville City Planning and Zoning Committee; and the Wilson County 

Appraisal District.

For these reasons, we conclude Starnes had a fair opportunity to allege facts tending to 

demonstrate the trial court had jurisdiction to hear the case. Therefore, we must conclude that if 

the case was remanded Starnes would not be able to show jurisdiction. 

CONCLUSION

We reverse the trial court’s order denying appellants’ plea to the jurisdiction and render 

judgment dismissing Starnes’s claims against appellants with prejudice.

Sandee Bryan Marion, Chief Justice