No. 03-15-00259-CV

IN THE

THIRD COURT OF APPEALS

AUSTIN, TEXAS

__________________________________________________________________

BECKY, LTD.,

Becky

V. 

THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH 

FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY,

 Appellees

__________________________________________________________________

ON APPEAL FROM THE

126TH JUDICIAL DISTRICT COURT, 

TRAVIS COUNTY, TEXAS

__________________________________________________________________

BRIEF OF APPELLANT 

__________________________________________________________________

ELIZABETH G. BLOCH LEONARD B. SMITH

State Bar No. 02495500 State Bar No. 18643100

Heidi.bloch@huschblackwell.com lsmith@leonardsmithlaw.com

Husch Blackwell LLP P.O. Box 684633

111 Congress, Suite 1400 Austin, Texas 78768

Austin, Texas 78701 (512) 914-3732

(512) 472-5456 (512) 532-6446 (fax)

(512) 479-1101 (fax)

 Attorneys for Becky, Ltd.

ORAL ARGUMENT REQUESTED

AUS-6109557-4 521106/1

ACCEPTED

03-15-00259-CV

5660212

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/12/2015 2:50:55 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/15/2015 11:05:55 AM JEFFREY D. KYLE Clerk
INTERESTED PARTIES

APPELLANT: ATTORNEYS FOR APPELLANT:

Becky, Ltd. (“Becky”) Elizabeth G. Bloch

Husch Blackwell LLP

111 Congress, Suite 1400

Austin, Texas 78701

Leonard B. Smith

P.O. Box 684633

Austin, Texas 78768

APPELLEES: ATTORNEYS FOR APPELLEES:

The City of Cedar Park (the “City”), 

Stephen Thomas, Matt Powell, 

Mitch Fuller, Lyle Grimes, Lowell 

Moore, Jon Lux, and Don Tracy

(the “City Council”), collectively 

referred to as “Appellees.”

ADDITIONAL PARTY BELOW:

Milestone Community Builders, LLC

(“Milestone”), a party to the

proceeding below prior to severance.

Cobby Caputo

Bradley B. Young

Bickerstaff Health Delgado Acosta LLP

3711 South MoPac Expressway

Building One, Suite 300

Austin, Texas 78746

ATTORNEYS FOR ADDITIONAL 

PARTY BELOW:

Andrew F. York 

Armbrust & Brown, PLLC

100 Congress Avenue, Suite 1300

Austin, Texas 78701

i

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ii 

TABLE OF CONTENTS 

INTERESTED PARTIES .......................................................................................... i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT OF THE CASE .............................................................................. viii

STATEMENT REGARDING ORAL ARGUMENT ............................................. ix

ISSUES PRESENTED ............................................................................................... x

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT AND AUTHORITIES ........................................................................ 6

I. Standard of review. ................................................................................ 6

II. Becky’s allegations................................................................................ 7

A. The City Council’s versus the Planning Commission’s 

authority. ..................................................................................... 8

B. The City Council has no authority to grant a waiver or 

variance to its Subdivision Ordinances. .................................... 10

III. Appellees cannot claim governmental immunity from suit. ............... 12 

A. Because Becky’s claims fall within the ultra vires 

exception to governmental immunity, Becky’s claims 

against City officials are not barred. . ....................................... 12 

B. Because Becky is seeking declaratory relief for 

interpretation of municipal ordinances, governmental 

immunity does not bar Becky’s claims against the City. ......... 12 

IV. Becky’s concrete and particularized injuries that resulted from 

the City’s ultra vires actions give Becky standing to bring suit 

for declaratory relief. ........................................................................... 19 

V. The facts of Becky’s case are sufficiently developed so that 

Becky is presenting the court with a justiciable controversy that 

is ripe for adjudication. ........................................................................ 24

VI. Becky’s claims are not moot because nothing has occurred 

while this litigation has been pending that would divest Becky 

of its interest in the claim. ................................................................... 25
iii 

CONCLUSION ........................................................................................................ 28

CERTIFICATE OF COMPLIANCE ....................................................................... 29

CERTIFICATE OF SERVICE ................................................................................ 29

APPENDIX .............................................................................................................. 30
INDEX OF AUTHORITIES

FEDERAL CASES

Hunt v. Washington State Apple Advertising Commission,

432 U.S. 333 (1977)...........................................................................................22

STATE CASES

Bland Independent Sch. District v. Blue,

34 S.W.3d 547 (Tex. 2000)..............................................................................6, 7

Brewster v. Roicki,

No. 04-14-00414-CV, 2015 WL 2255145 (Tex. App.—San Antonio 

May 13, 2015).....................................................................................................14

Brown v. Todd,

53 S.W.2d 297 (Tex. 2001)................................................................................19

City of Cedar Park. Texas Department of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011) .............................................................................18

City of Corpus Christi v. Unitarian Church of Corpus Christi,

436 S.W.2d 923 (Tex. Civ. App.—Corpus Christi 1968, writ ref’d 

n.r.e.).....................................................................................................................8

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ................................................................ 12, 13, 18

City of Laredo v. Rio Grande H20 Guardian,

No. 04-10-00872-CV, 2011 WL 3122205 (Tex. App.—San Antonio 

July 27, 2011)......................................................................................................22

City of New Braunfels v. Tovar,

No. 03-14-00693-CV, 2015 WL 2183479 (Tex. App.—Austin May 7, 

2015) ............................................................................................................ 15, 16

Cobb v. Harrington,

190 S.W.2d 709 (Tex. 1945) .............................................................................13

Cokins v. City of Lakeway,

No. 03-12-00083-CV (Tex. App.—Austin, July 25, 2013, no pet.)....................7

Creedmoor-Maha Water Supply Corp. v. Texas Commission on 

Environmental Quality,

307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.).........................................14

DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299 (Tex. 2008) .............................................................................19

iv
Federal Sign v. Texas Southern University,

951 S.W.2d 401 (Tex. 1997) .............................................................................12

Finance Commission of Texas v. Norwood,

418 S.W.3d 566 (Tex. 2013) .............................................................................21

Heckman v. Williamson Cnty.,

369 S.W.3d 137 (Tex. 2012) ............................................................ 6, 19, 25, 26

Hendee v. Dewhurst,

228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied)..................................14

In re Gruebel,

153 S.W.3d 686 (Tex. App.—Tyler 2005, pet. denied)....................................26

In re Sanchez,

81 S.W.3d 794 (Tex. 2002)..................................................................................9

Lone Star College Sys. v. Immigration Reform Coalition of Texas,

(IRCOT), 418, 271.............................................................................................18

Meeker v. Tarrant County College District,

317 S.W.3d 754 (Tex. 2010) .............................................................................26

Mission Consolidated I.S.D. v. Garcia,

372 S.W.3e 629 (Tex. 2012)................................................................................7

National Collegiate Athletic Association v. Jones,

1 S.W.3d 83 (Tex. 1999)....................................................................................25

Perry v. Del Rio,

66 S.W.3d 239 (Tex. 2001)................................................................................24

Quick v. City of Austin,

7 S.W.3d 109 (Tex. 1999)..............................................................................8, 27

Robinson v. Parker,

353 S.W.3d 753 (Tex. 2011) .............................................................................24

Save Our Springs Alliance, Inc. v. City of Austin,

149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.).........................................26

Save Our Springs Alliance, Inc. v. City of Dripping Springs,

304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied)..................................23

Southwestern Bell Telephone, L.P. v. Emmett,

No. 13-0584, 2015 WL 1285326 (Tex. March 20, 2015) .................... 14, 15, 16

State v. Gibson Products Co., Inc.,

699 S.W.2d 640 (Tex. App.—Waco 1985).......................................................26

v
Stop the Ordinances Please v. City of New Braunfels,

306 S.W.3d 919 (Tex. App.—Austin 2010, no pet.).........................................20

Texas A&M University-Kingsville v. Yarbrough,

347 S.W.3d 289 (Tex. 2011) .............................................................................26

Texas Department of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ...........................................................................6, 7

Texas Department of State Health Services v. Balquinta,

429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d)..................................22

Texas Department of Transp. v. Sefzik,

355 S.W.3d 618 (Tex. 2011) .............................................................................18

Texas Department of Transp. v. Sunset Transp., Inc.,

357 S.W.3d 691 (Tex. App.—Austin 2011, no pet.).........................................14

Texas Lottery Comm'n v. First State Bank of DeQueen,

325 S.W.3d 366 (Tex. 2009) .............................................................................18

Texas Nat. Reserve Conservation Commission v. IT-Davy, 

74 S.W.3d 849 (Tex. 2002)...................................................................... 6, 12, 18

V.E. Corp. v. Ernst & Young,

860 S.W.2d 83 (Tex. 1993)................................................................................26

Waco Independent Sch. District v. Gibson,

22 S.W.3d 849 (Tex. 2000)................................................................................24

Westbrook v. Penley,

231 S.W.3d 389 (Tex. 2007) ...............................................................................6

Williams v. Lara,

52 S.W.3d 171 (Tex. 2001)......................................................................... 19, 26

STATUTORY AUTHORITIES

TEX. CONST, ART. XI § 5............................................................................................8

TEX. CIV. PRAC. & REM. CODE § 37.002(b)...................................................... 17, 18

TEX. CIV. PRAC. & REM. CODE § 37.006(b).............................................................18

MISCELLANEOUS

City of Cedar Park Charter § 7.04 .............................................................................9

City of Cedar Park Charter § 7.04(a).......................................................................16

vi
City of Cedar Park Code of Ordinances § 12.03.004(a)................................... 10, 18

City of Cedar Park Code of Ordinances § 12.03.004(b)................................... 10, 16

City of Cedar Park Code of Ordinances § 12.03.006 ..............................................18

City of Cedar Park Code of Ordinances § 12.15.003 ..........................................2, 24

City of Cedar Park Code of Ordinances § 12.15.003(b)............................................2

City of Cedar Park Code of Ordinances § 12.15.003(c)............................... 2, 11, 18

City of Cedar Park Code of Ordinances § 12.15.003(c)(1).....................................11

City of Cedar Park Code of Ordinances § 12.15.003(d)......................................2, 11

City of Cedar Park Code of Ordinances § 12.15.006(a)..........................................16

vii
STATEMENT OF THE CASE

Nature of Case: Becky, the owner of land that abuts a tract owned by 

Milestone Community Builders, LLC (“Milestone”), 

challenges the City’s authority to grant Milestone 

variances to the subdivision infrastructure requirements 

in the City’s subdivision ordinances through a contract

with Milestone.

Trial Court: The Honorable Tim Sulak of the 353rd Judicial District 

Court, Travis County, Texas.

Trial Court’s Actions: Judge Sulak granted Appellees’ plea to the jurisdiction 

by order dated December 23, 2014 (I CR 2441

; Appendix 

A), and denied Milestone’s plea to the jurisdiction by 

order dated February 25, 2015 (II CR 6; Appendix B). 

The December 2014 order became final upon severance 

of Becky’s claims against Appellees from its claims 

against Milestone on April 29, 2015 (II CR 23; Appendix 

C). Becky’s claims against Milestone remain pending 

and abated in the severed action until completion of this 

appeal.

Related Action: Becky previously filed a premature appeal in Case No. 

03-15-00071-CV, incorrectly believing the order granting 

Appellees’ plea to the jurisdiction to be a final order. 

Becky voluntarily dismissed that appeal.

1 The clerk’s record in the prior appeal was transferred into this case on May 6, 2015, and will be 

designated as “I CR.” A second clerk’s record was filed on June 10, 2015, and will be designated 

as “II CR.”

viii

 
STATEMENT REGARDING ORAL ARGUMENT

Becky requests oral argument as it would assist this Court in understanding 

the facts and allegations of the parties and in analyzing the various possible 

grounds for the trial court’s ruling.

ix
ISSUES PRESENTED

1. Does governmental immunity bar Becky’s claims against the individual City 

Council members when those officials acted without legal authority, placing their 

action within the ultra vires exception to governmental immunity?

2. Does governmental immunity bar Becky’s claims for declaratory relief 

against the City for interpretation of municipal ordinances if the Uniform 

Declaratory Judgment Act has waived immunity by requiring that the City be made 

a party?

3. Does Becky have standing to assert its claims, having alleged that it was 

personally aggrieved by Appellees’ action and has suffered concrete and 

particularized harm?

4. Are Becky’s claims ripe for adjudication if Becky’s injuries are both 

presently concrete and sufficiently imminent due to Appellees’ past failure to 

require timely completion of necessary subdivision infrastructure improvements?

5. Are Becky’s claims moot even though no subsequent change in the law or 

nullifying event has occurred to affect the controversy giving rise to Becky’s

claims?

x
STATEMENT OF FACTS

Becky owns a 13.49-acre tract of land in Williamson County just to the 

northwest of a 37.59-acre tract owned by Milestone. Milestone’s tract includes a 

road extension contemplated by the City—Old Mill Road—that would connect 

Milestone’s and adjacent tracts to South Lakeline Boulevard, a major roadway.

2

The City’s unbuilt but proposed extension of Old Mill Road would provide the 

only access to Becky’s tract from South Lakeline Boulevard:3

One of a city’s principal obligations is to provide for orderly growth and 

development within its corporate limits and extraterritorial jurisdiction. To help 

2 I CR 192.

3 I CR 210.

1

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fund this expense, cities impose a share of the costs of municipal infrastructure 

improvements on owners and developers of land such as Milestone. Chapter 212 of 

the Local Government Code gives cities regulatory power over the subdivision of 

land. Pursuant to this grant of authority, the City has adopted a Subdivision 

Ordinance, § 12.01.001 et seq. of the City of Cedar Park Code of Ordinances

(“Subdivision Ordinance”).

The City’s Subdivision Ordinance provides for a wide variety of subdivision 

improvements, whose construction is time sensitive. Section 12.15.003 requires 

that for final plat approval, an applicant such as Milestone must either complete all

required subdivision improvements, or alternatively post a bond securing their 

completion, in which case the improvements must be completed within “... one (1) 

year of the date of final plat approval.” City of Cedar Park Code of Ordinances §§

12.15.003(b) and (c) (Appendix G). Section 12.15.003(d) imposes an automatic 

adverse consequence on an applicant who fails to timely complete construction of 

subdivision improvements: expiration of the final plat.

Becky’s claims arise from a Unified Development Agreement (the 

“Agreement”) entered into between the City, through the City Council, and 

Milestone. The City Council authorized the Agreement on September 12, 2013; the 

City’s Planning and Zoning Commission (the “Planning Commission”) approved 

Milestone’s final plat on September 17, 2013; and the City executed the 

2
Agreement on October 7, 2013.4 That Agreement, contrary to the City’s own 

Subdivision Ordinance, exempts Milestone from complying with its requirements, 

including the obligation to construct subdivision infrastructure and improvements 

such as roadways and utilities within a year from plat approval.

Specifically, the Agreement requires Milestone to complete “Phase 1” of 

Old Mill Road (see map on page 1), without a time deadline, and worse, it does not

require Milestone to complete, timely or otherwise, “Phase 2” of the road.

5 This 

constitutes a waiver, exemption, or variance from the City’s Subdivision 

Ordinance, which requires completion of the subdivision infrastructure within one 

year from plat approval. The issue in this case is whether the City Council had 

authority to grant Milestone that variance.

Orderly and timely completion of infrastructure such as roadways is crucial 

to continued development, particularly for development of adjoining tracts of land 

such as Becky’s, as developed land must have roads that connect with the existing 

roadway system. Becky alleged that without the timely completion of Old Mill 

Road to the edge of Becky’s property, its property remains landlocked, harming 

Becky by hindering its own development and reducing the value of the land or, 

alternatively, imposing costs on Becky that should have been borne by Milestone.

6

4 I CR 194.

5 See I CR 199; Development Agreement at ¶ 3.

6 I CR 195-96.

3

 
Becky brought this suit against both Appellees and Milestone, challenging 

the City’s grant of a variance in the Agreement and seeking a declaration of its 

rights under the applicable statutes and ordinances. Both Appellees and Milestone 

filed pleas to the jurisdiction. Appellees’ plea to the jurisdiction was based on 

governmental immunity, standing, mootness, and ripeness.7 Milestone’s plea was 

based on standing, mootness, and ripeness.8 In December 2014, the trial court 

granted Appellees’ plea to the jurisdiction without specifying which ground it 

believed supported the ruling.

9 Becky filed a motion for new trial, including a 

request that the court specify the basis for its ruling, pointing out, for example, that 

the grounds of mootness and lack of ripeness were mutually exclusive.10 The trial 

court denied the motion and the request for specification.

11

The trial court then denied Milestone’s plea to the jurisdiction.12 These 

inconsistent rulings suggest that the only ground upon which the trial court based 

its grant of Appellees’ plea was governmental immunity, since that was the only 

ground asserted by Appellees but not Milestone. But because the trial court refused 

to specify the basis for its ruling, Becky must address all possible grounds in this 

appeal.

7 I CR 38-47.

8 I CR 72.

9 I CR 244.

10 I CR 245.

11 I CR 254.

12 II CR 6.

4

 
SUMMARY OF THE ARGUMENT

When a plaintiff claims that public officials have acted without authority, i.e. 

acted ultra vires, governmental immunity is not implicated and the claim is not 

barred. Here, Becky contends that the City Council, having delegated sole 

authority to its Planning Commission to approve subdivision plats and grant 

variances to the requirements of the City’s Subdivision Ordinance, had no 

authority to waive its ordinance requirements or effectively grant a variance to 

those requirements through a contract with a private entity. As a party directly and 

significantly impacted by the City’s action, Becky has standing to challenge it and 

its claims are not moot and are ripe for adjudication.

Without the ultra vires Agreement, the Old Mill Road extension would have 

been built by now, connecting Becky’s tract with South Lakeline Boulevard, or 

else Milestone’s plat would have expired. The threat of plat expiration is the 

penalty that compels a developer to complete the required infrastructure in a timely 

manner. There is good reason why the City’s own ordinances contain strict time 

limits for infrastructure completion after plat approval—subdivision development 

and the construction of improvements within those subdivisions must be completed 

in an orderly and timely fashion. It is the limbo resulting from the ultra vires 

Agreement that has harmed and devalued Becky’s property.

5
ARGUMENT AND AUTHORITIES

I. Standard of review.

At issue is whether the trial court erred in granting Appellees’ plea to the 

jurisdiction, a ruling that should be reviewed de novo since whether a court has 

subject matter jurisdiction is a question of law. Westbrook v. Penley, 231 S.W.3d 

389, 394 (Tex. 2007); Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226 (Tex. 2004); Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 

S.W.3d 849, 855 (Tex. 2002). Appellees’ plea to the jurisdiction here was based on 

alleged governmental immunity, lack of standing, lack of ripeness, and mootness.

When considering a plea to the jurisdiction, courts must focus on the 

pleadings. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). The 

question here is whether Becky has alleged facts that affirmatively demonstrate the 

court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. Courts are 

required to construe the pleadings liberally in favor of the plaintiff, and unless 

challenged with evidence, accept all allegations as true and indulge every 

reasonable inference and resolve any doubts in favor of the plaintiff, as the 

nonmovant. Id. at 226-28.

When a plea to the jurisdiction challenges the existence of jurisdictional 

facts, the trial court may consider evidence and must do so when necessary to 

resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 226; Bland Indep. 

6
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Here, because Appellees’

jurisdictional challenge included evidence, the trial court was authorized to 

examine relevant evidence to determine if a fact issue existed. Miranda, 133 

S.W.3d at 227. But in recognition of the concept that courts should not consider the 

merits of a plaintiff’s case until jurisdictional challenges have been decided,

13 a 

trial court cannot grant a plea to the jurisdiction when a fact question regarding the 

jurisdictional issue exists. Id. at 227–28. As such, the standard of review of a plea 

to the jurisdiction mirrors review of summary judgments, so the question of 

“[w]hether a pleader has alleged facts that affirmatively demonstrate a trial court’s 

subject matter jurisdiction is a question of law reviewed de novo.” Id. at 226.

II. Becky’s allegations.

This Court must decide whether Becky has alleged facts that, if true, invoke 

the jurisdiction of the trial court to adjudicate the claims. The merits of Becky’s 

claims are not yet at issue.14 It is nonetheless helpful to understand the substance of 

Becky’s allegations. In a nutshell, Becky asserts that the City, having delegated 

sole authority to the City’s Planning Commission to approve plats and grant 

variances, had no authority, through its City Council, to grant a variance to 

13 A “plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat an action 

‘without regard whether the claims asserted have merit’.” Mission Consol. I.S.D. v. Garcia, 372 

S.W.3e 629, 635 (Tex. 2012) (quoting Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

14 Appellees did not move for summary judgment on the merits of Becky’s claims. See Cokins v. 

City of Lakeway, No. 03-12-00083-CV (Tex. App.—Austin, July 25, 2013, no pet.) (mem. op.) 

(“The City did not file a motion for summary judgment on the merits of the Landowners’ claims, 

and therefore we express no opinion about the ultimate merits of those claims.”).

7

 
Milestone. Without authority, the City Council’s action in granting a variance 

through the Agreement was ultra vires, rendering at least that portion of the 

Agreement void.

A. The City Council’s versus the Planning Commission’s authority.

The City is a home-rule city. As such, it does not depend on the legislature 

for specific grants of authority but rather has a constitutional right of selfgovernment and looks to the legislature only for specific limitations on its power. 

TEX. CONST, ART. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1999). 

As one court noted, in addressing the powers of a home rule city:

The charter and ordinances of a home rule city must be construed in 

light of constitutional and statutory provisions as they pertain to the 

charter provisions relating thereto. No home rule charter or ordinance 

passed under the home rule statute shall contain any provision 

inconsistent with the general laws of the state. Such a home rule city 

possesses powers not denied by the statute or the constitution so long 

as the City has incorporated those powers in its charter. [citations 

omitted].

Therefore, if the City of Corpus Christi has such power, it must be 

found within the ... provisions of its charter, the statutes or 

authorized ordinances.

City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 

927 (Tex. Civ. App.—Corpus Christi 1968, writ ref’d n.r.e.) (emphasis added).

In other words, if the City’s governing body, the City Council, has power to 

grant variances or waivers to the requirements of its Subdivision Ordinances, that 

power must be found in the statutes or in the City’s charter or ordinances. But in 

8
fact, the statute and the City’s own charter and ordinances take that authority away 

from the City Council and delegate it solely to the City’s Planning Commission. 

City of Cedar Park Charter §7.04 states that “The Planning and Zoning 

Commission shall ... Exercise authority over platting and subdividing of land 

within and outside the corporate limits of the City as authorized by law.”

(Appendix E).15 This delegation of authority to the Planning Commission is 

consistent with the legislative mandate in the Local Government Code.

For the legislature to divest a home-rule city of authority, the legislature’s 

intent to do so must be expressed with “unmistakable clarity.” In re Sanchez, 81 

S.W.3d 794, 796 (Tex. 2002). Here, the legislature has unmistakably divested the 

City’s governing body of authority to approve subdivision plats, placing that 

authority in the hands of the City’s Planning Commission:

The municipal authority responsible for approving plats under this 

subchapter [Regulation of Subdivisions] is the municipal planning 

commission ....

TEX. LOCAL GOV’T CODE § 212.006 (a) (Appendix D). This same statute allows the 

governing body—the City Council—to have this authority only “if the 

15 The City’s Charter can also be found at http://www.ci.cedarpark.tx.us/modules/showdocument.aspx?documentid=3818 at p. 18 (last visited on June 11, 

2015).

9

 
municipality has no planning commission.” Id. Since the City has a planning 

commission, the City Council has no authority to approve plats.

B. The City Council has no authority to grant a waiver or variance 

to its Subdivision Ordinances.

Consistent with the Local Government Code, the City’s Subdivision 

Ordinance also delegates the authority to grant variances from its requirements 

solely to the Planning Commission:

Variances from the terms of this chapter [Subdivision Regulation] 

shall be granted by the planning and zoning commission under 

the conditions stated in the Texas Local Government Code.

City of Cedar Park Code of Ordinances § 12.03.004(b) (Appendix F; emphasis 

added).

16 The ordinance further limits the Planning Commission’s authority to 

grant a variance only upon a showing of “unnecessary hardship.” Id. § 

12.03.004(a). Milestone never attempted to make such a showing and the Planning 

Commission was never asked to consider whether a variance was authorized under 

this test.

As for the timing for completing subdivision infrastructure improvements—

one of the key issues here—the City’s Subdivision Ordinance requires completion 

within one year of final plat approval, and sets forth specific requirements for an 

applicant to seek and obtain approval for an extension of time, which can only be 

16 The City’s Code of Ordinances can also be found at 

http://z2.franklinlegal.net/franklin/Z2Browser2.html?showset=cedarparkset (last visited on June 

11, 2015).

10

 
granted by the Planning Commission. City of Cedar Park Code of Ordinances § 

12.15.003(c) (Appendix G). Specifically, an applicant must show proof of hardship 

and submit certain documentation, whereupon the Planning Commission may 

recommend an extension to the City Council, but in any event, the extension 

cannot exceed an additional year. City of Cedar Park Code of Ordinances § 

12.15.003(c)(1). None of that happened here. Milestone did not apply for a 

variance and the Planning Commission did not grant one.

The City’s Subdivision Ordinance mandates that the failure to complete the 

required improvements within one year results in automatic expiration of the final 

plat approval. Id. § 12.15.003(d). Under the Subdivision Ordinance, and without a 

properly granted waiver by the only city entity with authority to grant one—the 

Planning Commission—Milestone’s final plat approval would have expired. The 

Agreement, which purports to grant Milestone a waiver or variance from these 

otherwise binding requirements, is a nullity since the waivers and variances were 

granted by the City Council—an entity without authority to do so.

The key point here is that Becky has alleged that the city council acted 

without authority when it effectively granted variances to the City’s Subdivision 

Ordinance through the Agreement with Milestone. The City, acting through its 

City Council, acted ultra vires when it granted that variance since the City Council 

had no such authority, having delegated that authority to the Planning Commission.

11
III. Appellees cannot claim governmental immunity from suit.

A. Because Becky’s claims fall within the ultra vires exception to 

governmental immunity, Becky’s claims against City officials are 

not barred.

When state officials act without legal or statutory authority, declaratory 

relief is available to parties against those officials to redress such violations of state 

law because they are not acts of the State. Texas Nat. Res. Conservation Comm’n 

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also Federal Sign v. Texas 

Southern University, 951 S.W.2d 401, 404 (Tex. 1997) (“A private litigant does 

not need legislative permission to sue the State for a state official’s violations of 

state law.”). In these situations, governmental immunity does not apply because 

Texas courts have recognized that suits claiming that officials acted without 

authority are not exactly suits against the State. Heinrich, 284 S.W.3d at 368. The 

underlying rationale is that such a suit’s intention is not to find the State liable, but 

rather is to force state officials to act within their official capacity. IT-Davy, 74 

S.W.3d at 855; Federal Sign, 951 S.W.2d at 404.

This rationale gave rise to the ultra vires exception to governmental 

immunity laid out in City of El Paso v. Heinrich, in which the Texas Supreme 

Court stated: “[S]uits to require state officials to comply with statutory or 

constitutional provisions are not prohibited by sovereign immunity...” because 

they do not attempt to control state action. Heinrich, 284 S.W.3d at 372. Becky’s 

12
action for declaratory relief does not attempt to control state action, and therefore 

governmental immunity as to the City Council is not implicated. Rather, Becky’s 

purpose in bringing the present suit is to declare that City officials acted 

wrongfully and without legal authority, or in other words, ultra vires. See Cobb v. 

Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (“The acts of officials which are not 

lawfully authorized are not acts of the State, and an action against the officials by 

one whose rights have been invaded or violated by such acts, for the determination 

and protection of his rights, is not a suit against the State within the rule of 

[governmental immunity].”).

To qualify for the ultra vires exception to governmental immunity, a suit 

“must not complain of a government officer’s exercise of discretion, but rather 

must allege, and ultimately prove, that the officer acted without legal authority or 

failed to perform a purely ministerial act.” Heinrich 284 S.W.3d at 372. In bringing 

this suit, Becky seeks to enforce the existing rules and regulations set forth in the 

City’s Subdivision Ordinance and in the Texas Local Government Code, not alter 

discretionary government policies. Under this ordinance, the members of the Cedar 

Park City Council, acting on behalf of the City, had no authority to supersede the 

Planning Commission when they waived the subdivision requirements for 

Milestone in the Agreement.

13
To determine whether a party has asserted a claim that falls within the ultra 

vires exception to governmental immunity, courts will construe statutory 

provisions defining the scope of authority, apply them to the plaintiff’s alleged 

facts, and decide whether those facts, as alleged, constitute acts that exceed the 

government official’s authority or show failure to perform a purely ministerial act.

Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 701–702 (Tex. 

App.—Austin 2011, no pet.); Creedmoor-Maha Water Supply Corp. v. Texas 

Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n.8 (Tex. App.—Austin 2010, no 

pet.) (quoting Hendee v. Dewhurst, 228 S.W.3d 354, 368–369 (Tex. App.—Austin 

2007, pet. denied)).

If a statute does not leave room for interpretation or discretion, an action that 

violates the clear statutory mandate will be deemed ultra vires. See Brewster v. 

Roicki, No. 04-14-00414-CV, 2015 WL 2255145 (Tex. App.—San Antonio May 

13, 2015) (affirming denial of a plea to the jurisdiction when the defendant had no 

statutory discretion to deviate from a decision of the tax assessor-collector). In

many respects, this case is similar to Southwestern Bell Telephone, L.P. v. Emmett, 

No. 13-0584, 2015 WL 1285326, at *1 (Tex. March 20, 2015). In that case, the 

plaintiff brought an action for declaratory relief against the City of Houston and 

members of the County Commissioners’ Court, the governing body of the Harris 

County Flood Control District, in light of an agreement between the city and the 

14
district for demolition and reconstruction of various bridges. Southwestern Bell 

WL 1285326, at *1. The plaintiff alleged that the commissioners engaged in ultra 

vires conduct when they ignored their statutory obligations under the Texas Water 

Code to pay for plaintiff’s costs to relocate its facilities since the commissioners 

were the cause of the relocation. Id. at *7–8.

The court held that the commissioners failed to comply with this statutory 

requirement and attempted to pass the expense onto the plaintiff, who was not a 

party to the city’s agreement with the district. Id. Because the statute did not leave 

any room for discretion, the commissioners did not have the authority to decide 

who would bear relocation expenses. Id. at *8. The court held that the 

commissioners’ actions constituted ultra vires conduct, and therefore the trial court 

erred in granting the defendants’ plea to the jurisdiction based on governmental 

immunity. Id.

Similarly, in City of New Braunfels v. Tovar, this Court affirmed an order 

denying a plea to the jurisdiction asserted by a municipality and three members of 

the city’s civil service commission. City of New Braunfels v. Tovar, No. 03-14-

00693-CV, 2015 WL 2183479 (Tex. App.—Austin May 7, 2015). In that case, the 

plaintiff argued that the commission members acted in contravention of the Texas 

Local Government Code when they denied him the statutorily-approved grant of 

extra points on a written examination that would make him eligible for promotion.

15
Id. By failing to comply with statutorily-mandated action, and without statutory 

discretion otherwise, the challenge to the commission members’ actions invoked 

the trial court’s jurisdiction through the ultra vires exception to governmental 

immunity. Id. at *4.

Our case is similar to Southwestern Bell and Tovar in that Becky has alleged 

that governmental officials have acted inconsistently with the mandates, 

requirements, and delegations of authority found in the relevant statutes and City 

ordinances.17 As Southwestern Bell and Tovar explain, unauthorized conduct, 

which the City Council committed in this case, establishes ultra vires conduct.

As noted above, the Planning Commission derives its authority over the 

subdivision plat approval process from two distinct sources—the statute and the 

City’s own Charter and Subdivision Ordinance. Section 212.006(a) of the Local 

Government Code states that “[t]he municipal authority responsible for approving 

plats under this subchapter is the municipal planning commission,” and the City of 

Cedar Park Charter § 7.04(a) requires the Planning Commission to “exercise 

authority over platting and subdividing of land within and outside the corporate 

limits of the City as authorized by law.” The Subdivision Ordinance vests the 

exclusive authority to approve and grant variances in the Planning Commission, 

and it may only do so upon a showing of unnecessary hardship. Sec. 12.03.004(b)

17 I CR 192-96.

16

 
(“[v]ariances from the terms of [the Subdivision Regulation chapter] shall be 

granted by the planning and zoning commission”). Nothing vests any discretion or 

authority in the City Council to approve or grant variances to the requirements of 

the Subdivision Ordinance. 

Milestone could not have been granted a waiver from the one-year 

infrastructure completion mandate by any entity other than the Planning 

Commission. Any purported waiver or variance by the City Council is ultra vires, 

since that body does not have any authority to grant such a waiver or variance. The 

City Council cannot create authority by a contract with a private entity if that 

authority is delegated elsewhere by state law and the City’s own charter and 

ordinances. Because the City Council acted without legal authority, governmental 

immunity does not bar Becky’s claims against the individual Appellees to 

challenge that ultra vires conduct. And that challenge goes hand in hand with the 

declaratory relief Becky seeks against the City itself.

B. Because Becky is seeking declaratory relief for interpretation of 

municipal ordinances, governmental immunity does not bar Becky’s 

claims against the City. 

The stated purpose of the Uniform Declaratory Judgments Act (UDJA) is to 

provide parties with “relief from uncertainty and insecurity with respect to rights, 

status, and other legal relations.” TEX. CIV. PRAC. & REM. CODE § 37.002(b).

Without legislative waiver, however, governmental immunity bars actions against 

17
political subdivisions of the state, such as the City of Cedar Park. Texas Dep’t of 

Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011).

According to the Texas Supreme Court, section 37.006(b) of the UDJA 

contains such a waiver when a municipality’s ordinances are at issue. This section 

requires that in an action for declaratory relief involving the validity or 

constitutionality of a municipal ordinance, “the municipality must be made a 

party,” thereby waiving governmental immunity. TEX. CIV. PRAC. & REM. CODE § 

37.006(b). Since § 37.002(b) is construed and administered liberally, courts have 

concluded that this waiver includes claims seeking interpretation of a statute or 

ordinance and is not limited to constitutionality or validity claims. Texas Lottery 

Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 634–35 (Tex. 2010); 

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009); Lone Star Coll. 

Sys. v. Immigration Reform Coalition of Texas (IRCOT), 418 S.W.3d 263, 271 

(Tex. App.—Houston [14th Dist.] 2013, pet. denied). Therefore, claims against a 

municipality seeking a declaration construing an ordinance and the rights of the 

parties thereunder are not barred by governmental immunity.

Here, Becky’s rights and other legal relations are affected by the City’s 

subdivision ordinances, and it is entitled to request declaratory relief for the proper 

construction and application of §§ 12.03.004(a) and (b), 12.03.006, and 

12.15.003(c) of the City of Cedar Park’s Subdivision Ordinances in light of Tex. 

18
Local Gov’t Code § 212.006, so that the court may determine the parties’ rights, 

status, and legal relations under those ordinances. Because the UDJA requires that 

the City be joined as a party in Becky’s suit seeking construction of these

ordinances, the City cannot claim that governmental immunity bars the claims 

against it. Becky’s claims against the City are therefore within the UDJA’s 

legislative waiver of governmental immunity. 

IV. Becky’s concrete and particularized injuries that resulted from the 

City’s ultra vires actions give Becky standing to bring suit for 

declaratory relief.

The injury that Becky suffered as a result of the City’s unlawful conduct is 

sufficiently distinct and particularized to grant Becky standing. A plaintiff with 

standing is one who suffers an alleged injury that is concrete, particularized, and 

actual or imminent. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 

(Tex. 2008). A court’s subject matter jurisdiction depends on the existence of a 

personal injury that is fairly traceable to the defendant’s conduct and the likelihood 

that the court will be able to redress plaintiff’s injury. Brown v. Todd, 53 S.W.2d 

297, 305 (Tex. 2001) (noting that federal standing requirements may provide 

guidance to Texas courts); Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 

(Tex. 2012). Additionally, a plaintiff must establish an “interest in a conflict 

distinct from that of the general public.” Williams v. Lara, 52 S.W.3d 171, 178 

(Tex. 2001); Brown, 53 S.W.2d at 302.

19
Restricting a person’s use of property in a way that is economically harmful 

is recognized as a validly concrete, actual, and particularized injury for standing 

purposes. In Stop the Ordinances Please v. City of New Braunfels, the court found 

that the plaintiffs’ injury was sufficient for standing purposes when they alleged 

that the City’s ordinance prohibiting certain larger ice chests on the Guadalupe and 

Comal Rivers unreasonably restricted their rights to use and lease personal 

property. Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 

928 (Tex. App.—Austin 2010, no pet.). Moreover, the ordinance caused plaintiffs 

actual and present injury by rendering valueless the larger ice chests that plaintiff 

had purchased for renting out to customers, and by causing them to incur 

additional expense to comply with the ordinance. Id.

A similar harm to Becky’s property has occurred in this case in that the 

waiver or variance granted by the City to Milestone has denied and delayed 

Becky’s ability to effectively use and develop its property. Moreover, the City’s 

action has shifted development costs from Milestone’s tract to Becky’s tract, 

thereby reducing the market value of Becky’s property. Without the ultra vires 

variance to the City’s strict time deadlines for completion of subdivision 

infrastructure, Milestone would have been required to complete construction of the 

subdivision improvements by September 17, 2014, or its plat approval would have 

expired. The City’s unauthorized conduct has rendered Becky’s tract of land 

20
stranded and landlocked for an indefinite period of time. The lack of access to the 

land has caused Becky to suffer an unreasonable restriction of its right to use and 

develop its property. This harm constitutes a concrete injury that is certainly 

traceable to the City’s actions and may be redressed by a favorable judgment 

declaring the Milestone Agreement void to the extent it purports to grant a variance 

to the Subdivision Ordinance.

As the Texas Supreme Court has held, a plaintiff’s standing, particularly 

when seeking declaratory relief, does not require that an actual legal injury or 

deprivation of a vested right has already occurred. It is sufficient to show a threat 

of impairment to the plaintiff’s rights. In Finance Comm’n of Tex. v. Norwood, 418 

S.W.3d 566, 583 (Tex. 2013), homeowners challenged a governmental entity’s 

interpretation of a home equity loan statute and sought declaratory relief. The court 

held that the homeowners were not required to show they had already suffered 

harm. Instead, the homeowners had standing by showing that a prospective interest 

was impaired:

The Homeowners need not allege a more imminent impairment to 

their rights or allege a threat with more specificity. While the certainty 

and extent of injury would become clearer as the time for closing a 

home equity loan approached, the terms were fixed, and the 

application of the Commissions’ interpretations became apparent, to 

require a homeowner to wait to that point to challenge an 

interpretation would be to deny review or deny credit, or both.

21
Here, Becky’s harm is not only threatened to increase in the future, it is 

immediate since the existence of the Agreement itself currently impairs the value 

of Becky’s property. As this Court recently noted:

we have recognized that even in the absence of vested rights or other 

legal entitlements to future transactions, a business can have standing 

to challenge the legality of governmental actions based on pleadings 

or proof that the actions impose regulatory burdens, damage or 

destroy markets for its services, or impede business opportunities.

Texas Dep’t of State Health Services v. Balquinta, 429 S.W.3d 726, 741 (Tex. 

App.—Austin 2014, pet. dism’d). Significantly, Appellees did not challenge or 

negate Becky’s allegations of both actual and threatened harm.

Texas courts have recognized an important element of the standing doctrine: 

substantial risk of injury is sufficient to confer standing. City of Laredo v. Rio 

Grande H20 Guardian, No. 04-10-00872-CV, 2011 WL 3122205, at *5 (Tex. 

App.—San Antonio July 27, 2011). In City of Laredo, the plaintiffs correctly 

argued they possessed standing as property owners who were going to be adversely 

affected by new rezoning ordinances.18 City of Laredo, 2011 WL 312205, at *3–4.

Although the negative effects from the ordinances had not yet materialized by the 

time of trial, the plaintiffs were nonetheless subject to a substantial risk of injury, 

18 The plaintiffs were members of a nonprofit corporation who were arguing for associational 

standing. In proving this, they were required to demonstrate that their members would otherwise 

have standing to sue in their own right. See Hunt v. Washington State Apple Advertising 

Comm’n, 432 U.S. 333, 343 (1977) (laying out a three-part test for associational standing).

22

 
which the court defined as a diminishment of plaintiffs’ property values. Id. at *4.

The court also rejected any argument that these injuries were hypothetical.

Lastly, Becky has been personally aggrieved by the City’s conduct in a way 

that distinguishes Becky from the public at large. Becky’s injury is not a 

hypothetical or generalized one that any member of the public could claim. The 

present controversy over the completion of necessary infrastructure improvements 

arises from the City’s decision to act without legal authority in granting Milestone 

a variance under the Agreement, and that decision directly affects Becky’s 

adjoining tract of land. Therefore, Becky has a unique, distinguishable, and 

personal interest in the property that has been directly and adversely affected by 

the City’s unauthorized actions. See Save our Springs Alliance, Inc. v. City of 

Dripping Springs, 304 S.W.3d 871, 880 (Tex. App.—Austin 2010, pet. denied) 

(noting that although the plaintiffs’ interest in property was not the subject of the 

contested action, the impairments to plaintiffs’ property interest created a 

sufficiently particularized and distinct injury from that of the general public). This 

distinct and particularized injury, along with the actual and imminent threats to 

Becky’s property rights, gives Becky standing to bring this suit.

23
V. The facts of Becky’s case are sufficiently developed so that Becky is 

presenting the court with a justiciable controversy that is ripe for 

adjudication.

Just as Becky has standing to bring this suit based on its actual and imminent 

concrete injury, it necessarily follows that Becky’s case is also ripe for 

adjudication. Justiciable claims require concrete injuries, but the ripeness doctrine 

mimics the standing doctrine in that a concrete injury that is likely to occur is 

sufficient for ripeness purposes. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 

852 (Tex. 2000). “Although a claim need not be fully ripened at the time suit is 

filed, the facts must be developed sufficiently for the court to determine that an 

injury has occurred or is likely to occur.” Robinson v. Parker, 353 S.W.3d 753, 

755 (Tex. 2011); Perry v. Del Rio, 66 S.W.3d 239, 251 (Tex. 2001) (recognizing 

that cases may ripen after filing if the sufficiently developed facts allow the court 

to discern an injury that has or will likely occur).

Here, Becky has suffered both presently and imminently concrete injury.

Presently, the City’s purported failure to timely require the completion of Old Mill 

Road as mandated by the City of Cedar Park Ordinances § 12.15.003 has caused 

Becky to incur diminishing property values or increased development costs, which 

will continue into the future if the controversy between the parties is not resolved.

Further, the restriction on Becky’s use and access to its property is an infringement 

on Becky’s property rights. In addition to assuredly decreased future property 

24
value, Becky’s already existing standing was bolstered by the fact that during the 

pendency of this action, Becky submitted its own application for a preliminary plan 

and final plat on its tract of land on October 24, 2014.

19 The City indicated in its 

response to this filing that Becky may be required to bear the expenses for the Old 

Mill Road extension itself, instead of requiring Milestone to bear the expenses.20

The imminence of this additional harm supplements Becky’s concrete injuries that 

have already occurred and give rise to a justiciable controversy. 

There is nothing contingent about Becky’s injuries, and the facts of this 

controversy are sufficiently developed to allow it to be justiciable. The City’s ultra 

vires actions have indefinitely landlocked Becky’s tract of land. This is a current 

fact; it is not hypothetical. The present and future diminution of the land’s property 

value does not depend on hypothetical facts or situations that have not come to 

pass. Thus, Becky’s claims constitute a justiciable controversy that is ripe for 

adjudication.

VI. Becky’s claims are not moot because nothing has occurred while this 

litigation has been pending that would divest Becky of its interest in the 

claim. 

If a justiciable controversy ceases to exist while litigation is pending, the 

case has become moot and the court cannot exercise its jurisdiction. Heckman v. 

Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012); Nat’l Collegiate Athletic 

19 I CR 195.

20 I CR 196.

25

 
Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A case may become moot when the 

issues presented are not “live” or the parties no longer have a legally cognizable 

interest in the outcome since the time of filing. Williams v. Lara, 52 S.W.3d 171, 

184 (Tex. 2001). Additionally, moot claims are those for which a court’s judgment 

on the merits will have no effect on the parties’ rights or interests. Heckman, 369 

S.W.3d at 162; V.E. Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993). 

Events that occur outside the courtroom during the pendency of litigation but 

have an effect on the existence of a justiciable controversy may render a claim 

moot. See Texas A&M University-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 

(Tex. 2011) (declaring a professor’s claim that a negative performance evaluation 

undermined her application for tenure moot when the university awarded her 

tenure); Meeker v. Tarrant County College Dist., 317 S.W.3d 754, 762 (Tex. 2010) 

(concluding that plaintiff’s claims for injunctive and declaratory relief against a 

district chancellor were moot when a contract ended the chancellor’s service to the 

district). A claim may also become moot if the law on which the claim hinges is 

changed or it no longer rests on any existing right or fact. See In re Gruebel, 153 

S.W.3d 686, 690 (Tex. App.—Tyler 2005, pet. denied) (confirming plaintiff’s 

claims became moot when the City amended its zoning ordinance); State v. Gibson 

Products Co., Inc., 699 S.W.2d 640 (Tex. App.—Waco 1985) (ruling that the 

26
State’s action to enjoin a corporation from violating a certain law was moot when 

the law was repealed).

In its plea to the jurisdiction, the City relied upon Save Our Springs Alliance, 

Inc. [SOS] v. City of Austin, 149 S.W.3d 674 (Tex. App.—Austin 2004, no pet.), in 

an attempt to demonstrate mootness. But that case merely highlights why the 

claims here are not moot. In SOS, the plaintiff challenged a development 

agreement as being contrary to an ordinance. While the case was pending, 

however, the city “amended the Ordinance according to the terms of the 

development agreement. This amendment was a legislative act by the City.” SOS, 

149 S.W.3d at 681. In other words, the city legislatively amended its ordinance, 

which the city had the right and authority to do, so that the development agreement 

no longer conflicted with the ordinance. This mooted the plaintiff’s argument that 

there was a conflict since the conflict no longer existed.

No such facts are present here. The City has not amended its Subdivision 

Ordinance, and certainly not in a manner that would resolve the conflict between 

the Agreement and the requirements of the Ordinance. Nothing has occurred in this 

case to eradicate the justiciable controversy or strip Becky of the interests it seeks 

to protect. Not only are the City’s applicable ordinances still in effect, but no new 

legislation since the time of filing supersedes any existing law. Therefore, Becky’s

27
claims are not moot as a result of any subsequent event or amendment to the 

applicable law. 

CONCLUSION

Trial courts are often too quick to dismiss lawsuits on alleged jurisdictional 

grounds, depriving plaintiffs such as Becky of an opportunity to address the merits 

of their claims. Governmental immunity does not bar Becky’s claims against either 

the City itself or the City Council members in their official capacities. The ultra 

vires exception to governmental immunity and the UDJA’s implied waiver of 

immunity for acts taken without legal authority are both applicable here, providing 

the trial court with subject matter jurisdiction to reach the merits.

In addition, Becky has alleged particularized injuries that are sufficiently 

concrete and imminent to confer Becky with standing and a claim ripe for 

adjudication that has not become moot. Becky therefore requests that this Court 

reverse the judgment below and remand the case to the trial court. Becky requests 

such other relief to which it may be entitled.

Respectfully submitted,

HUSCH BLACKWELL, L.L.P

BY:/s/ Elizabeth G. Bloch

ELIZABETH G. BLOCH

Texas Bar No. 02495500

Heidi.bloch@huschblackwell.com 

111 Congress Avenue, Suite 1400

Austin, Texas 78701

28
(512) 472-5456

(512) 479-1101 (facsimile)

Leonard B. Smith

Texas Bar No. 18643100

lsmith@leonardsmithlaw.com

P.O. Box 684633

Austin, Texas 78768

(512) 914-3732 

(512) 532-6446 (facsimile)

Attorneys for Becky, Ltd.

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document contains 6,467 words, 

according to the word count of the computer program used to prepare it, in 

compliance with Rule 9.4(i)(2).

/s/ Elizabeth G. Bloch

Elizabeth G. Bloch

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument has been 

served upon the following counsel of record via electronic filing and/or facsimile 

on the 12th day of June, 2015:

Cobby Caputo

ccaputo@bickerstaff.com

Bradley B. Young

byoung@bickerstaff.com

Bickerstaff Heath Delgado Acosta LLP

3711 South MoPac Expressway

Building One, Suite 300

Austin, Texas 78746

/s/ Elizabeth G. Bloch

Elizabeth G. Bloch

29
APPENDIX

A. Order Granting Defendants’ Plea to the Jurisdiction

B. Order Denying Defendant Milestone Community Builders LLC’s Plea To 

The Jurisdiction And Motion To Dismiss For Lack Of Jurisdiction

C. Order Granting Plaintiff's Motion To Sever And Abate

D. TEX. LOCAL GOV’T CODE § 212.006 (a)

E. City of Cedar Park Charter – selected excerpts

F. City of Cedar Park Subdivision Ordinance – Sec. 12.03.004 Variances

G. City of Cedar Park Subdivision Ordinance – Sec. 12.15.003 Completion of 

Improvement

30
244

APPENDIX A
6

DC BK15079 PG948 

Flied in The District Court 

of Travis County, Texas 

CAUSE NO. D-1-GN-14-001293 FEB 2 5 2015 

BECKY, LTD., 

Plaintiff, 

vs. 

MILESTONE COMMUNITY BUILDERS 

LLC, THE CITY OF CEDAR PARK, et al., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

At J(}t()() kM 

IN THE DIS~Rekli,JdGtfYtcJerk 

TRAVIS COUNTY, TEXAS 

126th JUDICIAL DISTRICT 

ORDER DENYING DEFENDANT MILESTONE COMMUNITY BUILDERS LLC'S 

PLEA TO THE JURISDICTION AND MOTION TO DISMISS FOR LACK OF 

JURISDICTION 

After considering Defendant Milestone Community Builders, LLC's ("Milestone") Plea 

to the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction, the evidence, and arguments 

presented, the Court finds that Plaintiffs Motion should be DENIED. 

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Milestone's Plea to 

the Jurisdiction and Motion to Dismiss for Lack of Jurisdiction is hereby DENIED. 

SIGNED this ~ay of February, 2015. 

TI ULAK 

JUDGE PRESID NG 

Case# D-1-GN-14-001293 

·1·1nrr1 iiii'l illii iifli lilll iilli illi'l iliii rrliillfl.liii 

003909435 

APPENDIX B
23

APPENDIX C
24

APPENDIX C
Texas Local Government Code

 

Title 7. Regulation of Land Use, Structures, Businesses, and Related Activities

Subtitle A. Municipal Regulatory Authority

Chapter 212. Municipal Regulation of Subdivisions and Property Development

Subchapter A. Regulation of Subdivisions

§ 212.006. Authority Responsible For Approval Generally 

(a) The municipal authority responsible for approving plats under this 

subchapter is the municipal planning commission or, if the municipality has 

no planning commission, the governing body of the municipality. The 

governing body by ordinance may require the approval of the governing 

body in addition to that of the municipal planning commission. 

... 

APPENDIX D
City of Cedar Park Charter

Section 2.02 General Powers Adopted 

The City shall have, and may exercise, all the powers enumerated in Article 1175, 

Chapter 13, Title 28, of the Revised Civil Statutes of the State of Texas of 1925 as 

now or hereafter amended; with exclusions or alterations that may be specifically 

included in this Charter. 

Section 3.07 General Powers and Duties 

All powers of the City shall be vested in the Council, except as otherwise provided 

by law or this Charter, and the Council shall provide for the exercise thereof and 

for the performance of all duties and obligations imposed on the City by law. 

Section 7.04 Planning and Zoning Commission: Powers and Duties 

The Planning and Zoning Commission shall: 

(a) Exercise authority over platting and subdividing of land within and 

outside the corporate limits of the City as authorized by law; 

(b) Recommend to the Council approval or disapproval of proposed 

changes in the City’s Zoning Ordinance and Plan;

(c) Recommend to the Council plans for the physical development of the 

City; and

(d) Perform all other functions of the Planning and Zoning Commission 

under the laws of the State of Texas.

 

APPENDIX E
City of Cedar Park Subdivision Ordinance

Sec. 12.03.004 Variances 

(a) When an applicant can show that a provision of these regulations would cause 

unnecessary hardship if strictly adhered to and where, because of some condition 

peculiar to the site in the opinion of the planning and zoning commission, a 

departure may be made without destroying the intent of such provisions, the 

planning and zoning commission may authorize a variance. 

(b) Variances from the terms of this chapter shall be granted by the planning and 

zoning commission under the conditions stated in the Texas Local Government 

Code, and provided further that the planning and zoning commission shall have no 

authority to grant a variance based on a special or unique condition which was 

created as a result of the method by which a person voluntarily subdivides that 

land, and provided that pecuniary hardship to the applicant, standing alone, shall 

not be deemed to constitute grounds for a variance.

(c) A variance may be applied for as part of a plat or replat request or as a separate 

request if the property is already platted. The applicant shall be responsible for 

providing all necessary information pertinent to the request, including the 

justification for such variance.

APPENDIX F
City of Cedar Park Subdivision Ordinance

 Sec. 12.15.003 Completion of improvements 

(a) Prior to the signing of the approved final plat by the chairman of the planning 

and zoning commission and the planning director, the applicant shall: 

(1) Complete all improvements required by this chapter in accordance 

with the approved construction plans .... 

... 

(b) Alternative to completing improvements. The city may waive the requirement 

that the applicant complete all improvements required by this chapter prior to the 

signing of the approved final plat, contingent upon securing from the applicant a 

guarantee, as provided for by this section, for completion of all required 

improvements .... Such guarantee shall take one (1) of the following forms:

(1) Performance bond. The applicant shall post a performance bond with 

the city, as set forth herein, in an amount equal to one hundred ten 

percent (110%) of the estimated construction costs for all remaining 

required improvements, using the standard city form.

... 

(c) Time limit for completing improvements. The period within which required 

improvements must be completed shall be incorporated in the surety instrument 

and shall not in any event, without prior approval of the city, exceed one (1) year 

from date of final plat approval. 

(1) The planning and zoning commission may, upon application of the 

applicant and upon proof of hardship, recommend to the council 

extension of the completion date set forth in such bond or other 

instrument for a maximum period of one (1) additional year. ... 

(d) Failure to complete improvements. Approval of final plats shall be deemed to 

have expired in subdivisions for which no assurances for completion have been 

posted or the improvements have not been completed within one (1) year of final 

plat approval, unless otherwise approved by the city. In those cases where a surety 

instrument has been required and improvements have not been completed within 

the terms of said surety instrument, the city may declare the applicant and/or surety 

to be in default and require that all the improvements be installed. ...

APPENDIX G