Opinion issued November 21 , 2023

In The 

## Court of Appeals For The 

## First Distri ct of Texas

———————————— NO. 01
- 23
- 00105
- CV

———————

———— CITY OF KEMAH , Appella nt

V. CARL JOI N ER , Appell e e
On Appeal from the 10th District Court Galveston County, Texas Trial Court Ca se No. 22
- cv - 2216

MEMORANDUM OPINION The City of Kema h appea ls from the trial court ’ s denial of its plea to the jurisdiction. Appellee Ca rl Joiner, who is the former mayor of the City of Kemah , sued the City for a declaratory judgment compelling the City to release an investigatory report , which Joiner maintained w ou l d exonerate him of allegations2

of wrongdoing. The City sought dismissal on the grou nds of sovereign immunity and Joiner ’ s lack of standing . The trial court denied the City ’ s p lea to t he jurisdiction , and the C ity appealed. Because we conclude that Joi ne r failed to demonstrate a waiver of sovereign
imm unity , we reverse the trial court ’ s order

. We remand to the trial court to afford
Joiner an opportunity to replead , if possible

. Backg ro und Joiner served as mayor of the City of Kemah from 2015 until 2019 a nd again from 2 02 1 until 2023. From 2017 through 2018, the City un dertook ren ovation and expansion project s concerning a parking lot, the visitor center, and city hall. In April 2021 , th e City entered into a contract with the law firm of Lewis , Bri sbois , Bisgaard & Smith LLP to investigate whet her the contracts f or the renova tion and expansion projects were fulfilled and whether there were any irregularities. According to Joiner, “ [a] p ri mary purpose behind this investigation was the City ’ s drive to u n cover alleged self

- dealing, misappropriation of funds and /or mismanagement on [his] part as Mayor of Ke mah during the Renovat ion Project. ” The law firm prepared a two

- part report, which was i ssued to city coun cil members
in Ja n uary and May 2022. Joiner maintains that , as mayor , he saw the repor t, but the city council refused to release it to the public. In his affi davit, Joiner averred that he asked the3

city council to release the repo rt to th e public “ on nume r o u s occasions. ” On Septem ber 21, 2022, J oi ner sent a letter to the city council again requesting th at the report be made public. Joiner asserted that the city council had waived any claim of attorney

- client privile ge when a city council m e m b e r discussed the purpose of the law firm ’ s invest igati on at a public meeting

. In response to his written request , the city secretary sent Joiner an email inform ing him that Wayne Dolcefino ha d also

r eques ted the law firm ’ s report

. In re sponse to Do l ce fi no ’ s request, the City sought an opinion fro m the Texas Attorney General on wh ether it could withhold the report on the ground of attorney

- client privilege. Acco rding to the city secretary, the relevant statute a fforded the at t orney general 45 days in wh ic h to respond, and that time period h ad not yet elaps ed. The city council did not releas e the report to the public. In late November 2022, Joiner filed suit against the City seeking a declaratory judgment stating that the law firm ’ s rep or t is not privile ge d and order ing the City to rele ase it to the public. In response , the City filed an answer and a plea to the jurisdiction. The City argued that Joiner lacks standing to sue because he was not perso nally aggrieved by th e C i ty ’ s fail ure to rel ease the law
fi rm ’ s report. The City also argued that Joiner had not demonstrated a waiver of its sovereign immun ity.4

Joiner responded with evidence, which consisted of: Joiner ’ s affidavit ; his
Se pte mber 2 1, 2022 l et t er to city council members; the September 28, 20 22 em ail
to Joiner and others re garding Dolcefino ’ s request , and the City ’ s submission of the issue of releasing the report to the Attorney General for advice. In the letter to the Atto rney General, t he City as serted that it had hired the law firm to perform
le gal services and th at the report should be withheld from public disclosure because it is confident ial and subject to both attorney

- client and wor k

- product privileges.
Th e trial court d en i ed the plea to the jurisdiction in an order that stated i t had co ns ider ed “the Motion, Plaintiff ’s Response, the evidence presented, and argument of counsel, if any

. . . . ” The City appealed. 1
Anal ysis On appeal, the Ci ty argues th at th e trial court erred by denying its plea to the ju risdiction because Joiner lacked s ta nding and failed to demonstrate a waiver of the City ’ s governmental immunity.
I. S tandards of review Subject

- matter jurisdiction is essential to a court ’ s p ower to decide a c ase. Tex. Ass ’ n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993). Th e

1 Three da ys after the t r ial court signed its or de r d enyin g the pl ea to the jurisdiction, the C ity f i led a reply to Joiner ’ s re sponse to the City ’ s plea to the jur isdic tion. The City urged the trial court to strike Joiner ’ s evidence, and again argued that Joiner lac ked standi ng and the City wa s immune fro m s uit

.5

plaintiff has the burden to aff irmatively demonstrate a trial court ’ s jurisdiction. Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019). Th at burden
inclu de s the obligation to establish a wai ver of sovereign immunity in suits again st the g ov ernment. Id. Governmental units, including cities, are generally entitled to governmental immunity from suit unless the Legislature has consented to suit. Dohlen v. City o f
San Antonio , 643 S.W.3d 387, 39 2 (Tex. 2022); see T E X
. C IV
. P RAC
. & R EM
. C ODE § 1 01 .001(3)(B) (defining “governmental unit” to include cities). A city may challenge a court ’ s juri sdiction b y asserting immunity in a plea to the jurisdiction. Christ v. Tex. Dep ’ t of T

ra n sp. , 664 S.W.3d 82, 8 6 (Tex. 2023 )

. When a plea to the juris diction ch allenge s whether the plaintiff has alleged facts that a ffirmat ively demonstrate jurisdiction, we review the trial court ’ s ruling de novo and based on the p leadings

. Abbott v. Mexican Am. Legisla t ive Caucus, Tex

. H ouse of Representatives , 647 S.W.3d 681, 68 9 (Tex. 2022) ; see Ch rist , 664 S.W.3d at 86 (noting that whether court has subject

- matter jurisdiction is question of law). When a plea to the jurisdiction challenges the existence of jurisdictio nal facts, our re v iew mirrors that of a traditional summary j udgment. 2 Abbott , 647 S.W.3d at 689

.

2 When a plea to the j u risdiction challenges the existence of jurisdictional facts, the trial court may re view the relevant evidence and determine whether a fact issue exists. Tex. Dep ’ t of Parks & Wildlife v. Miranda , 133 S .W .3d 217, 227 (Tex. 2 004 )

. Wh en the evidence reveals a qu estion of fact on the jurisdictional issue, the trial court cannot grant the pl ea , and inst ead the fact issue will be resolved by the6

II. UDJA doe s not waive the City ’ s immunity.
Joiner sued t he City, which, as a governmental un it , is immune from suit unless the Legislature has waived immunity. See Dohlen , 643 S.W.3d at 39 2

. Joiner ar gues that the Uniform Declara tory Judg ments Act, see T EX
. C IV
. P RAC
. &
R EM
. C ODE § 37.004, waives immunity in this case in which he s eeks “ a declara ti o n of rights under a contract
. ” Appelle e ’ s Br. 1 3

. Section 37.004 provides: A person in terested under a deed, will, written con tract, o r other wr itings constituting a contract or whose rights, status, or other legal re lations are affected by a statute, m un i cipal or dinance, contract, or franchise may have determ ined any question of con structi on or validity arising under the instrum ent, sta t ute, ordina nce, contract, or franchise and obtain a declaration of rights , statu s, or other legal relat ions thereunder

. Id. § 37.004 (a). The UDJA does not contain a general waiver of sovereign or governme ntal immunity. Swanson , 590 S.W.3d at 55 2. In Ci ty of El Paso v. Heinrich , 284 S.W.3d 366 (T e x. 2009), the Supr eme Court hel d that the UDJA waives immun ity for “ claims c h allenging the v alidity of ordinances or statutes ” by requiring that the

“ relevant gove rnmental entities be made parties. ” 284 S.W.3d a t 373 n.6 (citing
T EX
. C IV
. P RAC
. & R EM
. C ODE § 37.00 6(b) , req uiring governmental entit ies to be made pa rty ). But the “ UD J A does not waive the state ’ s sovereign immunity when

factfinder. Id. at 227

– 28. If the re levant evi dence is undispute d or fails to raise a que stion of fact, the tria l cou r t rules on the plea to the jurisdiction as a matter of law. Id. at 228.7

the plaintiff seeks a decla rati on of his or her rights under a statute or other l aw. ”
Tex. Dep ’ t of Transp. v. Sefzik , 355 S.W.3d 618, 621 (Tex. 2011) (holding that “sovereign immunity bars UDJA actio ns against the state and its political subdivisions absent a legislative waiver”). Thus, the UDJA does not waive immunity in this case. III. T he Open Meetings Act and the Public Information Act do not waive the City ’ s immunity. Joiner argues , how ever, that the Ci t y has avoided its dut ies under the Texas Open Meetings Act and the Texas Public Inf orm ation Act

. See T EX
. G OV ’ T C ODE §§ 551.00 1

– .146 ( Texas Open Meetings Act ) ; T EX
. G OV ’ T C ODE §§ 552.001

– .376 (Texas Public Information Act). Neither of the se statutes wai ve i mmunity in this

case. The Texas Open Meetings Act includes a clear an d unambiguous w aiver of immunity b ut only for a suit br ough t by mandamus or injunction

. Swanson , 590 S.W.3d at 55 4 ( citing T E X
. G OV ’ T C ODE §§ 551.141

– .142(a) ). “ [ T ] he Open Meetings Ac t ’ s clear and unambiguous waiver of immunity does not extend to suits for declaratory re lief

. ” Id. Joiner brought suit for decla ratory r elief , so t he Op en Me eting s Act does not waive immunity in this case. The Texas Public Inform at ion Act inclu de s a clear and una mbiguous waiver of immunity for “ an action for a declaratory judgment or injuncti ve relief , ” but only when bro ught in acc ordance with section 552.3215 of the Government Code

.8

T EX
. G OV ’ T C ODE § 552. 321 5. Section 552.3 215 a uthori zes a dis tr i ct or county attorney or the attorney general to bring a suit for de claratory or injunctive relief
based on in formation provided by a pers on who c laims to be a victim of a violation of the Public Informati on Act

. Id. Joiner is not a distr ict or county a tt o rney or the attorney general , so the Public Information Act does not waive immunity in this

case. See id. We conclude that Joiner did not meet his burden to prove a waiver of the City ’ s immunity. We sustain the City ’ s sole issue. Conclusion Beca use the City re ta i ned immunity, the tr ial court erred by denying it s ple a to the jurisdi ction. Accordingly, w e reverse th e trial court ’ s order denyin g the pl ea to the jur isdic tion

. Because it is unclear whet her it is possible for Joiner to cure the d efects in his pleadings, we remand this case to the trial cour t to afford Joiner an opportunity to replead, if poss ible. See , e.g. , Tex. A&M Univ. Sys. v. Kos eoglu , 233 S.W.3d 835, 840 (Tex. 2007) ( requiring oppor tunity to amend when possible to

cure ple ading defect)

.

Peter Kelly Justice
P an e l consists of Justices Kelly , Landau, and F a rris

.