COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00171-CV 

THE TOWN OF ANNETTA SOUTH, 

TEXAS; GERHARD 

KLEINSCHMIDT; JAMES 

ABLOWICH; PHILLIP KUNTZ; AND 

DAVID GOOLSBY

APPELLANTS/APPELLEES

V.

SEADRIFT DEVELOPMENT, L.P. APPELLEE/APPELLANT

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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

TRIAL COURT NO. CV11-0220

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OPINION1

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1

The undersigned became author of this majority opinion on August 12, 

2014.
2

I. INTRODUCTION

The primary issue in this appeal is whether Appellant The Town of Annetta 

South’s Ordinance 011—which requires that all lots within the Town’s 

extraterritorial jurisdiction (ETJ) must be at least two acres in size—violates 

Texas Local Government Code section 212.003(a)(4). See Tex. Loc. Gov’t Code 

Ann. § 212.003(a) (West 2008); Annetta South, Tex., Ordinance 011 (Sept. 12, 

1985). The trial court found that it did and granted a partial summary judgment 

for Appellee Seadrift Development, L.P. specifically on this ground. For the 

reasons set forth below, we will affirm the trial court’s partial summary judgment 

for Seadrift.

II. PROCEDURAL AND FACTUAL BACKGROUND

Seadrift brought a declaratory judgment action and a request for 

mandamus relief against the Town after the Town denied Seadrift’s preliminary 

subdivision plat for an approximately 106-acre tract. A large portion of Seadrift’s 

platted subdivision was located in the ninety-five acres of the Town’s ETJ. While 

Seadrift’s proposed subdivision lots within the Town’s boundaries were two acres 

in size, the lots in the Town’s ETJ were not. 

At the time of Seadrift’s plat application, the only Town ordinance 

provisions addressing density in the Town’s ETJ were located in Town Ordinance 

011. Ordinance 011 contains a provision requiring that all lots in the Town’s ETJ 

be at least two acres in size. After the Town denied Seadrift’s subdivision plat, 

Seadrift requested that the Town certify the reasons for the Town’s denial. See 
3

Tex. Loc. Gov’t Code Ann. § 212.009(e) (West 2008) (providing that a municipal 

authority responsible for approving plats shall certify the reasons for the action 

taken on a plat application upon request of the land owner). The Town 

responded, certifying that the reason for its denial of Seadrift’s plat was that “the 

density of this development is excessive.” After receiving this certification, 

Seadrift filed suit against the Town seeking a declaratory judgment that 

Ordinance 011’s provision requiring that all lots within the Town’s ETJ must be at 

least two acres in size violates Texas Local Government Code section 

212.003(a)(4). See id. § 212.003(a)(4). Seadrift also sought a writ of mandamus 

to compel the Town to engage in the ministerial act of approving the subdivision 

plat. 

The parties filed competing motions for summary judgment on the issue of

whether the provision in the Town’s Ordinance 011 that required all lots in the 

Town’s ETJ to be at least two acres in size violated Texas Local Government 

Code section 212.003(a)(4). See id. The trial court granted Seadrift’s motion for 

partial summary judgment on its declaratory judgment claim but denied all other 

relief, including Seadrift’s request for a mandamus, and denied the Town’s

motion for summary judgment. The Town perfected this appeal, raising three 

issues.

Seadrift filed a cross-appeal in this court, asserting that not only should we 

affirm the trial court’s partial summary judgment for Seadrift on its declaratory 

judgment claim but also that we should reverse and render judgment for Seadrift 
4

on its request for mandamus relief because the Town possessed a ministerial 

duty to approve Seadrift’s preliminary plat. 

III. STANDARDS OF REVIEW

A. Statutory Construction

 Courts use the same rules to construe statutes and to construe municipal 

ordinances. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 

430 (Tex. 2002). Thus, our objective in construing the Town’s Ordinance 011 is 

to discern the Town’s intent, and our objective in construing local government 

code section 212.003(a) is to discern the legislature’s intent. See id. (citing

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.

1999)). In making this determination, we look first to the plain meaning of the 

words of the provisions, using any definitions provided. Tex. Mut. Ins. Co. v. 

Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). In giving effect to the statute or 

ordinance as a whole, we should not assign a meaning to a provision that would 

be inconsistent with other provisions of the statute or ordinance. See Wende, 92 

S.W.3d at 430. 

 Statutes and ordinances in derogation of the common law are strictly 

construed. Tex. Co. v. Grant, 182 S.W.2d 996, 1000 (Tex. 1944); accord 3 

Sutherland Statutes and Statutory Construction § 61:1 (7th ed.) (“Statutes in 

derogation of a property owner’s right at common law to build what she pleases 

upon her own property must be strictly construed in favor of the owner.”). 

Because a municipality possesses authority to regulate land development in its 
5

ETJ only to the extent it is legislatively granted that authority, legislatively-created 

express limitations to that grant of authority—such as local government code

section 212.003—are construed strictly against the authority of the municipality 

and in favor of the land owner. See Tex. Loc. Gov’t Code Ann. § 212.003; 3 

Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative 

grant of authority must be construed, whenever possible, so that it is no broader 

than that which the separation of powers permits.”).

When reviewing the validity of a city ordinance, we begin with the

presumption that the ordinance is valid. City of Brookside Village v. Comeau, 

633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087 (1982); RCI Entm’t, Inc. 

v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App.—San Antonio 2012, no 

pet.). The party challenging the ordinance bears the burden to establish its 

invalidity. RCI Entm’t, 373 S.W.3d at 595. An ordinance that attempts to 

regulate a subject matter preempted by a state statute is unenforceable to the 

extent it conflicts with a state statute. Dallas Merchant’s & Concessionaire’s 

Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993).

B. Summary Judgment

We review a trial court’s summary judgment de novo. Joe v. Two Thirty 

Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004); City of San Antonio v. 

En Seguido, Ltd., 227 S.W.3d 237, 240 (Tex. App.—San Antonio 2007, no pet.). 

When reviewing a summary judgment, we take as true all evidence favorable to 

the nonmovant, and we indulge every reasonable inference and resolve any 
6

doubts in the nonmovant’s favor. Joe, 145 S.W.3d at 156–57; En Seguido, 227 

S.W.3d at 240. The party moving for a “traditional” summary judgment bears the 

burden to show that no genuine issue of material fact exists and that it is entitled 

to judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En Seguido, 227 

S.W.3d at 240; Tex. R. Civ. P. 166a(c).

IV. THE TOWN’S FIRST ISSUE: DOES ORDINANCE 011 VIOLATE LOCAL GOVERNMENT 

CODE SECTION 212.003?

In its first issue, the Town contends that Ordinance 011’s two-acreminimum-lot-size subdivision rule is not equivalent to a restriction on the number 

of residential units that can be built per acre as prohibited by Texas Local 

Government Code section 212.003(a)(4). Accordingly, the Town argues that the 

trial court erred by granting partial summary judgment for Seadrift on this basis.

A. The Town’s Powers to Regulate in Its Extraterritorial Jurisdiction

A city’s authority to regulate land development in its ETJ is wholly derived 

from a legislative grant of authority. FM Props. Operating Co. v. City of Austin, 

22 S.W.3d 868, 902 (Tex. 2000); accord Ex parte Ernest, 136 S.W.2d 595, 597 

(Tex. Crim. App. 1939) (“As a general rule a municipal corporation’s powers 

cease at municipal boundaries and cannot, without plain manifestation of 

legislative intention, be exercised beyond its limits.”). If no municipal ordinances 

are legislatively authorized to be extended to a municipality’s ETJ, then only 

county land-use regulations apply. FM Props. Operating Co., 22 S.W.3d at 876, 

902. A city is authorized to apply municipal ordinances “governing plats and 
7

subdivisions of land . . . to promote the health, safety, morals, or general welfare 

of the municipality and the safe, orderly, and healthful development of the 

municipality” to property within its ETJ. See Tex. Loc. Gov’t Code Ann.

§§ 212.002, .003 (West 2008). The municipality is also authorized to apply in its 

ETJ other city ordinances relating to access to public roads or the pumping, 

extraction, and use of groundwater by persons other than retail public utilities. Id.

§ 212.003(a). But, unless otherwise authorized by state law, a municipality “shall 

not regulate” the following within the municipality’s ETJ:

(1) the use of any building or property for business, industrial, 

residential, or other purposes;

(2) the bulk, height, or number of buildings constructed on a 

particular tract of land;

(3) the size of a building that can be constructed on a

particular tract of land;

(4) the number of residential units that can be built per acre of 

land; or

(5) the size, type, or method of construction of a water or 

wastewater facility that can be constructed to serve a developed 

tract of land if [certain other facts apply].

 

Id. § 212.003(a)(1)–(5). The purpose of these restrictions on a municipality’s 

authority to impose regulations on land in the municipality’s ETJ is to prohibit the 

municipality’s extension of zoning ordinances into its ETJ under the guise of 

cleverly drafted rules “governing plats and subdivision of land.” See id. 
8

§ 212.002; Quick v. City of Austin, 7 S.W.3d 109, 121 (Tex. 1998) (noting section 

212.003 prohibits the application of zoning regulations in ETJ areas).2

B. Statutory Construction Analysis Establishes That Ordinance 011 

Violates Texas Local Government Code Section 212.003(a)(4)

In its first issue, the Town argues:

A minimum lot size only regulates how small a resulting lot 

can be. It does not expressly mandate the number of residential 

units that can be built on the resulting lots and thus, does not 

regulate how many residential units can be placed on an acre of 

land. A resulting two-acre lot can logically be the site for one or 

multiple duplexes, triplexes or apartment buildings and thus, can 

contain one, twenty, or more residential units. The same is true of a 

0.2-acre lot. The restriction in the Annetta South’s ordinance is on 

the size of lots, not number of residences per acre.

. . . .

. . . In this case, lot size could have some impact [on] the 

resulting number of residential units per acre, but that is not the 

specific characteristic that the law proscribes.

1. Ordinance 011

Turning to the language of the ordinance at issue, Ordinance 011 defines a 

“lot” as 

 

2

The Town cites the legislative history of section 212.003, compares 

section 212.003 to the zoning powers granted in chapter 211 of the local 

government code, and argues that the section 212.003 language relied upon by 

Seadrift to challenge Ordinance 011’s lot-size restriction was only intended to 

prevent zoning regulations from being applied in the ETJ. But in construing a 

statute, we look to the plain meaning of the words chosen by the legislature and 

do not consider extrinsic aids unless the statute is ambiguous. Combs v. Roark 

Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013). As set forth 

below, giving the words of section 212.003(a)(4) their plain meaning, the statute 

is not ambiguous; thus, we do not consider extrinsic aids.
9

[a]n undivided tract or parcel of land, no less than two (2) 

acres, having frontage on a public street and which is, or in the 

future may be offered for sale, conveyance, transfer or improvement;

which is designated as a distinct and separate tract, and which is 

identified by a tract or lot number or symbol in a duly approved 

subdivision plat which has been properly filed.

Annetta South, Tex., Ordinance 011 (emphasis added). Based on the plain 

meaning of the above language of Ordinance 011, it is undisputed that it 

mandates that lots within the Town’s ETJ must be at least two acres in size. 

We are required to give the words used in Ordinance 011 their defined 

meaning, if one exists. See, e.g., Tex. Mut. Ins. Co., 381 S.W.3d at 452. 

“Subdivision” is defined in Ordinance 011 as “[t]he division of any tract of land 

[situated within the Town or its ETJ] into two or more parts for the purpose of . . . 

laying out suburban lots or building lots, or any lots . . . intended for public use or 

the use of purchasers.” Annetta South, Tex., Ordinance 011. Thus, if the owner 

of a two-acre lot in the Town’s ETJ wants to divide his lot into two or more parts 

to sell a part of it, the lot is a tract of land located in the Town’s ETJ that meets 

the ordinance’s definition of “subdivision” because the division of the tract of land 

is for the purpose of laying out lots offered for sale and is intended for the use of 

purchasers. Approval of any re-subdivision of a two-acre lot, however, would not 

be granted due to Ordinance 011’s two-acre minimum lot size.3 Therefore, 

 

3

The Town’s summary judgment response asserts that Seadrift “seems to 

want the court to ignore the fact that the [Town] has adopted a new ordinance 

which is [in] evidence and which would be available to such resubdividers which 

does not require two[-]acre minimums.” But the new ordinance referenced by the 

Town does continue to require two-acre lots; it simply provides that variances 
10

applying the definitions of “lot” and “subdivision” that are provided in Ordinance 

011, it is undisputed that Ordinance 011 prohibits the owner of a two-acre lot in 

the Town’s ETJ from dividing the two-acre lot into a less than two-acre parcel of 

land and selling it. Accord City of Weslaco v. Carpenter, 694 S.W.2d 601, 602–

04 (Tex. App.––Corpus Christi 1985, writ ref’d n.r.e.) (construing this same 

definition of “subdivision” as used in City of Weslaco’s ordinance addressing 

minimum standards—other than lot size—and licensing requirements for mobile 

home and/or recreational vehicle parks in city’s ETJ). Through this circuitous 

definitional loop created by Ordinance 011—definitions that we are required to 

apply in construing the ordinance—although multiple duplexes, triplexes, and 

apartment complexes may technically be built on a single two-acre lot in the 

Town’s ETJ, they can never be individually sold. The result is that the entirety of 

each two-acre lot is required to share common ownership; under Ordinance 011, 

parcels of land on which duplexes, triplexes, or apartment complexes are built 

within a two-acre lot are incapable of ownership different than the ownership of 

the entire two-acre lot.

2. Section 212.003(a)(4)

The next issue is whether the regulation imposed in the Town’s ETJ by the 

circuitous definitional loop contained in Ordinance 011 violates section 

 

may be sought—but not necessarily granted—from such minimums. And the 

existence of a new ordinance does not alter an analysis of whether Ordinance 

011 violates local government code section 212.003(a)(4).
11

212.003(a)(4). See Tex. Loc. Gov’t Code Ann. § 212.003(a)(4) (“[I]n its 

extraterritorial jurisdiction a municipality shall not regulate . . . (4) the number of 

residential units that can be built per acre of land.”). Again, we must give the 

language of section 212.003 its plain meaning; we discern the intent of the 

legislature by the plain meaning of the words it chose to use. See Tex. Mut. Ins. 

Co., 381 S.W.3d at 452. In section 212.003(a)(4), the legislature chose to use 

the mandatory words “shall not regulate,” expressly limiting the grant of authority 

given to municipalities to extend rules governing plats and subdivisions into its 

ETJ. The plain meaning of “shall not” imposes a prohibition. See Tex. Gov’t 

Code Ann. § 311.016(5) (West 2013); accord Fuentes v. Howard, 423 S.W.2d 

420, 423 (Tex. Civ. App.––El Paso 1967, writ dism’d) (construing “shall not” in a 

statute as mandatory, however innocent the violation of the statute). And 

although “regulate” is not defined in the statute, its most common dictionary 

meaning is “to control or supervise by means of rules and regulations.” See

Oxford Dictionaries, available at 

http://www.oxforddictionaries.com/us/definition/american_english/regulate?q=reg

ulate; see also Webster’s Third New International Dictionary 1913 (2002)

(defining “regulate” as “to govern or direct according to rule”). Thus, giving 

section 212.003(a)(4) its plain meaning, the legislature intended to impose a 

mandatory duty on municipalities to refrain from controlling or directing in a 

municipality’s ETJ—whether explicitly or implicitly—the number of residential 

units built per acre.
12

3. Ordinance 011 Violates Section 212.003(a)(4)

The Town essentially concedes that Ordinance 011’s two-acre lot size 

requirement could have some impact on the resulting number of residential units 

per acre. But the Town claims that the number of residential units that can be 

built per acre is not the specific characteristic that Ordinance 011 proscribes. 

Contrary to the plain meaning of “regulate” as used in section 212.003(a)(4), the 

Town gives an overly narrow meaning to the word, equating “regulate” with 

“specifically proscribing.” Using the ordinary meaning of the term “regulate,” it is 

clear that Ordinance 011 does control or “regulate” the number of residential 

units that can be built per acre on land within the Town’s ETJ. See Tex. Att’y 

Gen. Op. No. GA-0648 (2008) (“The Bulverde Ordinance provisions repeatedly 

refer to density and also establish residential lot size limits. . . . Thus, the 

ordinance provisions appear on their face to be inconsistent with Local 

Government Code section 212.003(a)(1)-(4).”).4

Moreover, the summary-judgment evidence establishes that, by extending 

Ordinance 011 into its ETJ, the Town in fact intended to regulate the number of 

residential units built per acre in its ETJ. As Seadrift points out, there are 43,560 

 

4

The Town’s reliance on Quick as justification for Ordinance 011 is 

misplaced. See 7 S.W.3d at 121. Quick dealt with an ordinance involving water 

control measures; section 212.003 expressly authorizes a municipality to extend 

such ordinances to its ETJ. See id.; see also Tex. Loc. Gov’t Code Ann. 

§ 212.003(a).
13

square feet in an acre, and while the Town denied Seadrift’s preliminary plat that

would have provided for one home on each of eight 11,000-square-foot lots, the 

Town claims that Seadrift’s preliminary plat would have complied with Ordinance 

011 if only Seadrift would have platted eight homes on an 88,000-square-foot (a 

little more than two acres) lot. Seadrift points out that both scenarios would 

impose the same infrastructure and utility needs; eight homes on an 88,000-

square-foot lot (supposedly not prohibited by Ordinance 011) require the exact 

same water, sewer, electricity, and gas infrastructure as eight homes all built on 

eight 11,000-square-foot lots (prohibited by Ordinance 011). Thus, Seadrift 

contends that Ordinance 011 is and was intended to be exactly the type of 

regulation prohibited by section 212.003(a)(4)—an implicit extension of the 

Town’s zoning-density ordinances into its ETJ under the guise of cleverly drafted 

rules governing plats and subdivision of land. See Tex. Loc. Gov’t Code Ann. 

§ 212.002; Quick, 7 S.W.3d at 121 (noting that section 212.003 prohibits the 

application of zoning regulations in ETJ areas); accord S. Crushed Concrete, 

LLC v. City of Houston, 398 S.W.3d 676, 679 (Tex. 2013) (holding city ordinance 

invalid because it conflicted with statutory provision).

 Finally, if any question remains that Ordinance 011 violates section 

212.003(a)(4), we are required to construe section 212.003(a)(4) against the 

authority of the Town to regulate within its ETJ both because section 212.003 is 

an express limitation on the authority granted to municipalities to regulate within 
14

ETJs and because any regulation of land use5is in derogation of the common 

law. See Thomas v. Zoning Bd. of Adjustment, 241 S.W.2d 955, 957 (Tex. Civ.

App.—Eastland 1951, no writ); accord Bryan v. Darlington, 207 S.W.2d 681, 683 

(Tex. Civ. App.––San Antonio 1947, writ ref’d n.r.e.) (“All restrictions of the free 

use of land are in derogation of the common law right to use land for all lawful 

purposes that go with the title and possession, and are to be construed strictly 

against the person creating or attempting to enforce such restrictions.”); 3 

Sutherland Statutes and Statutory Construction § 64:1 (7th ed.) (“The legislative 

grant of authority must be construed, whenever possible, so that it is no broader 

than that which the separation of powers permits.”).

Because Ordinance 011 violates section 212.003(a)(4), we overrule the 

Town’s first issue. 

V. THE TOWN’S SECOND ISSUE: DOES THE SUMMARY-JUDGMENT EVIDENCE 

ESTABLISH THAT SEADRIFT’S PRELIMINARY PLAT WAS DENIED BASED ON A 

VIOLATION OF ORDINANCE 011’S TWO-ACRE LOT-SIZE REQUIREMENT

 

5

The Town claims that Ordinance 011’s two-acre restriction is not a 

regulation of land use but only a regulation of lot size. This is a distinction 

without a difference under the present facts. Seadrift wants to use its land 

located in the Town’s ETJ by dividing it into less than two-acre tracts and by 

building one single family residential unit on each lot; the Town relies on 

Ordinance 011’s two-acre lot-size requirement to prohibit this use. Accord Ferris 

v. City of Austin, 150 S.W.3d 514, 516 (Tex. App.––Austin 2004, no pet.) 

(recognizing ordinance’s lot-size restriction was effectively a land-use restriction 

because, although single-family residential unit could have been built on tract, 

tract could not be subdivided into lots large enough to meet ordinance’s 

condominium lot-size restriction, and owner wanted to build condominiums). 
15

In its second issue, the Town argues that “there was no evidence or 

conflicting evidence” that the reason for the Town’s denial of Seadrift’s 

preliminary plat was because of the less than two-acre lot size of lots within 

Town’s ETJ. The Town does not contend that it conclusively established any 

specific alternative reason for its denial of Seadrift’s preliminary plat; the Town

merely argues that Seadrift failed to conclusively establish the two-acre lot-size 

subdivision rule was the reason.

In support of its motion for partial summary judgment, Seadrift attached 

summary-judgment evidence that the Town voted to deny Seadrift’s preliminary 

plat on November 18, 2010. When Seadrift requested, per Texas Local 

Government Code section 212.009(e), that the Town certify the basis for its 

denial, the Town’s Mayor dictated a letter to Seadrift identifying the density of 

Seadrift’s proposed development as the sole basis for the denial of Seadrift’s 

preliminary plat. See Tex. Loc. Gov’t Code Ann. § 212.009(e). Several of the 

Town’s city council members also testified to this fact in their depositions. And 

an October 29, 2010 letter from the Town’s engineer to Seadrift’s engineer 

indicated that the only way in which Seadrift’s preliminary plat did not comply with 

Ordinance 011 was the plat’s lot size.

 Thus, although the Town urges on appeal that Seadrift’s plat failed to 

conform with other requirements necessary for its approval—and this may or 

may not be true—viewing the summary-judgment evidence in the light most 

favorable to the Town, it conclusively establishes that the Town’s sole reason for
16

the denial of Seadrift’s preliminary plat was “density”; that is, a violation of 

Ordinance 011’s two-acre lot-size restriction. The Town did not offer 

controverting summary-judgment evidence in the trial court establishing that it 

denied Seadrift’s preliminary plat for any other reason.

We overrule the Town’s second issue.

VI. THE TOWN’S THIRD ISSUE: ATTORNEY’S FEES;

SEADRIFT’S CROSS-APPEAL ISSUE: MANDAMUS RELIEF

In its third issue, the Town complains that the trial court erred by awarding 

Seadrift attorney’s fees because, according to the Town, Seadrift impermissibly 

utilized the Declaratory Judgments Act solely as a vehicle to obtain attorney’s 

fees.6 According to the Town, Seadrift was required to prove that Ordinance 

011’s lot-size restriction was unenforceable in order to obtain the mandamus 

relief Seadrift sought so that Seadrift’s declaratory judgment action was 

unnecessary and served no purpose other than being a mechanism for attorney’s 

fees. That is, the Town contends that Seadrift’s primary cause of action was for 

mandamus and that Seadrift’s declaratory judgment action was simply an addon, addressing issues already pending before the trial court. 

It its cross-appeal, Seadrift argues that the trial court erred by denying its 

request for mandamus relief after Seadrift established via its declaratory 

judgment action that Ordinance 011’s two-acre lot-size provision was 

 

6

The Town does not challenge the reasonableness of or necessity for the 

amount of the attorney’s fees awarded to Seadrift.
17

unenforceable as violative of local government code section 212.003(a)(4). 

According to Seadrift, at this point, the Town’s approval of the preliminary plat 

became a ministerial duty. See Tex. Loc. Gov’t Code Ann. § 212.005 (West 

2008) (providing that the municipal authority responsible for approving plats must 

approve a plat or replat that is required to be prepared under this subchapter and 

that satisfies all applicable regulations). Consequently, via its cross-appeal, 

Seadrift requests that this court issue a writ of mandamus ordering the Town to 

approve Seadrift’s preliminary plat.

We address these two issues together because they are somewhat 

interrelated. It is well settled that the validity of an ordinance may be challenged 

through a declaratory judgment action. See, e.g., City of San Antonio v. Greater 

San Antonio Builders Ass’n, 419 S.W.3d 597, 599–605 (Tex. App.—San Antonio 

2013, pet. denied) (affirming trial court’s declaratory judgment declaring 

ordinance invalid). It is likewise well settled that a trial court may award 

attorney’s fees in a declaratory judgment action. See, e.g., Tex. Civ. Prac. & 

Rem. Code Ann. § 37.009 (West 2008); Bocquet v. Herring, 972 S.W.2d 19, 20–

21 (Tex. 1998); Greater San Antonio Builders Ass’n, 419 S.W.3d at 605

(affirming award of attorney’s fees to prevailing party after trial court declared 

ordinance invalid). Thus, the issue is whether Seadrift’s mandamus action 

somehow altered the application of these two well-settled rules. 

It is true, as the Town contends, that a claim may not simply be repleaded 

as a declaratory judgment claim in order to justify an award of attorney’s fees. 
18

See, e.g., MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 670 

(Tex. 2009). Instead, the Declaratory Judgments Act is “intended as a speedy 

and effective remedy” for settling disputes before substantial damages are 

incurred and is “intended to provide a remedy that is simpler and less harsh than 

coercive relief, if it appears that a declaration might terminate the potential 

controversy.” Id. 

Here, Seadrift’s pleaded mandamus cause of action was conditioned on 

the trial court’s declaration that the Town’s Ordinance 011 violated Texas Local 

Government Code section 212.003(a)(4). Seadrift conceded that only if the trial 

court declared the Town’s Ordinance 011 invalid would Seadrift be entitled to 

issuance of a mandamus requiring the Town to approve its preliminary plat. 

Seadrift argued: “In other words, as long as the two-acre minimum lot size 

remains enforceable under Ordinance 11, the Town is not required to approve 

Seadrift’s preliminary plat[,] and a writ of mandamus could not issue.” 

A district court is vested with original mandamus jurisdiction over county 

officials. Vondy v. Comm’rs Court of Uvalde Cnty., 620 S.W.2d 104, 109 (Tex.

1981) (citing former Tex. Const. art. V, § 8); Sheppard v. Thomas, 101 S.W.3d 

577, 580 (Tex. App.––Houston [1st Dist.] 2003, pet. denied). A district court may 

issue a writ of mandamus to compel a public official to perform a ministerial act. 

See Sheppard, 101 S.W.at 580.7 An act is ministerial when the law clearly spells 

 

7Citing Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) 

(requiring mayor to hold election on question of abolishing city’s corporate 
19

out the duty to be performed by the official with sufficient certainty that nothing is 

left to the exercise of discretion. Anderson, 806 S.W.2d at 793. 

Here, the Town denied Seadrift’s preliminary plat because the proposed 

subdivision lots in the Town’s ETJ were less than two acres in size; a two-acre lot 

size was required by the Town’s Ordinance 011. Thus, as Seadrift concedes, at 

the time the Town denied Seadrift’s preliminary plat, no ministerial duty existed 

for the Town to approve the plat because the plat did not “satisfy all applicable 

regulations,” namely Ordinance 011. Only after the trial court declared that the 

Town’s Ordinance 011 violated the local government code could any ministerial 

duty have arisen for the Town to approve Seadrift’s preliminary plat. Seadrift has 

not cited, and we have not located, any authority for the proposition that a 

mandamus will issue against a county official based on allegations that a 

ministerial duty arose after the county official acted or failed to act. Likewise, no 

summary-judgment evidence exists in the record before us that the Town has, 

since Ordinance 011 was declared violative of local government code section 

212.003(a)(4), granted or denied Seadrift’s preliminary plat. See In re Kuster, 

363 S.W.3d 287, 290–91 (Tex. App.––Amarillo 2012, orig. proceeding) (denying 

petition for writ of mandamus to the extent it sought relief based of facts that had

 

existence); Turner v. Pruitt, 161 Tex. 532, 533–34, 342 S.W.2d 422, 423 (1961) 

(citing action against justice of peace for damages for failure to provide jury for 

person charged with misdemeanor criminal offense in justice of peace court); and 

Bichsel v. Carver, 159 Tex. 393, 394–95, 321 S.W.2d 284, 285 (1959) 

(proceeding brought to mandamus chief of police to reinstate suspended police 

officer).
20

not yet occurred); Owens Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 

624 (Tex. App.––Houston [1st Dist.] 1991, orig. proceeding) (holding mandamus 

will not issue to compel a public official to do what he has not been asked to do).

Thus, the trial court did not err by denying Seadrift’s motion for summary 

judgment on its mandamus claim. Our holding here does not prevent Seadrift 

from refiling its mandamus claim. We overrule the sole issue raised by Seadrift 

in its cross-appeal.

For these same reasons, we overrule the Town’s third issue contending 

that Seadrift’s declaratory judgment action was simply a recasting of its 

mandamus action. Because we affirm both the trial court’s grant of summary 

judgment for Seadrift on Seadrift’s declaratory judgment claim and the trial 

court’s denial of Seadrift’s motion for summary judgment on its claim for 

mandamus relief, these two claims cannot be considered the same claim. 

Moreover, it is the summary judgment on Seadrift’s declaratory judgment action 

that terminated the uncertainty and the controversy between the parties, not the 

mandamus action; the mandamus action will lie only if there is no controversy 

because a ministerial duty is owed. See Anderson, 806 S.W.2d at 793; see also

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (recognizing 

that a trial court may enter a declaratory judgment so long as it will serve a useful 

purpose of terminating the controversy between the parties). 
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VII. CONCLUSION

Having overruled the Town’s three issues and having overruled the sole 

issue raised in Seadrift’s cross-appeal, we affirm the trial court’s judgment. 

/s/ Sue Walker

SUE WALKER

JUSTICE 

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

DELIVERED: September 25, 2014