Affirmed in Part and Reversed and Rendered in Part; Opinion Filed August 

24, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00018-CV

CITY OF DALLAS AND BOARD OF ADJUSTMENT OF THE CITY OF 

DALLAS, Appellants

V.

PDT HOLDINGS, INC. AND PHILLIP THOMPSON HOMES, INC, D/B/A 

PHILLIP THOMPSON CUSTOM HOMES, Appellees

On Appeal from the 14th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-18-08484

MEMORANDUM OPINION

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Nowell

The City of Dallas and the Board of Adjustment of the City of Dallas 

(collectively the Board) appeal the trial court’s denial of their plea to the jurisdiction. 

PDT Holdings, Inc. and Phillip Thompson Homes, Inc., d/b/a Phillip Thompson 

Custom Homes (collectively PDT) sought a variance from the Board after the City 

issued a stop work order for violation of the residential proximity slope (RPS) 

ordinance on one of PDT’s projects. The Board denied the variance and PDT sought 

judicial review of that decision in the district court. PDT also brought claims for 
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violation of the due course of law, estoppel, laches, and waiver. It requested the court 

to reverse the Board’s decision or, alternatively, award it damages for complying 

with the RPS ordinance. The Board filed a plea to the jurisdiction asserting 

governmental immunity. The trial court denied the plea to the jurisdiction after a 

hearing. 

We conclude the trial court has jurisdiction to review the Board’s decision 

under the terms of local government code section 211.011. However, we agree with 

the Board that the trial court lacks jurisdiction to grant relief apart from section 

211.011, including PDT’s request for damages and the constitutional claim. We 

reverse in part and render judgment dismissing PDT’s claims for damages and for 

violation of the due course of law for want of jurisdiction. In all other respects, we 

affirm the trial court’s order and remand for further proceedings consistent with this 

opinion. 

Background

PDT applied for a permit from the City to build a duplex on its property in 

Dallas. The property is zoned for residential use and the general height restriction 

for the property is thirty-six feet. However, the RPS height restriction, which limits 

height based on a projected line emanating from any residentially zoned property, 

limited the height of a structure on the property to twenty-six feet. 

PDT alleged that before submitting plans, it inquired with the City to verify 

provisions of the Dallas Development Code (Code) and their applicability to the 
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property. PDT relied on the City to provide it with accurate information about the 

Code’s application to the property and the City’s enforcement of the Code. 

In September 2017, PDT submitted detailed plans for the project to the City. 

The plans called for construction of a three-story duplex with a total height of thirtysix feet. The City approved the plans and issued building permits for the project as 

submitted. 

In reliance on the building permits and approved plans, PDT began 

construction in October 2017. In November 2017, a building inspector notified PDT 

of a violation of the thirty-six-foot height restriction and issued a hold on the 

property. Construction continued while the parties discussed the height issue. In 

January 2018, a City inspector cited PDT and issued a stop work order on the 

grounds that the structure did not comply with the thirty-six-foot height restriction. 

PDT adjusted the structure to comply with the restriction and the stop work order 

was lifted. 

In April 2018, with the project 90% complete, the City indicated for the first 

time that the property was subject to a height restriction of twenty-six feet due to 

application of the RPS ordinance. A stop work order was issued on April 13, 2018 

for noncompliance with the RPS ordinance. 

PDT alleged that despite multiple opportunities, the City failed to inform it of 

the height restriction required by the RPS ordinance. If the City had done so before 

or at the time PDT submitted the development plans or even at the time of the
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January stop work order, PDT would have taken the RPS restriction into account 

and would have adjusted the plans to comply with the RPS restriction. According to 

PDT, compliance with RPS at the time it was finally raised would require removal 

of a portion of the structure above twenty-six feet at a cost of thousands of dollars 

and lengthy delays in completing the project. 

PDT applied to the Board for a variance from the RPS height restriction in 

May 2018. PDT sought a ten-foot variance to the height restrictions to maintain the 

structure at its current height of thirty-six feet. The Board denied the variance 

without prejudice after a hearing on May 21, 2018. PDT filed a second application 

for the variance with newly submitted site plans and elevations on May 27, 2018. 

City staff recommended approval of the variance. The Board, however, denied the 

variance with prejudice at a hearing on June 18, 2018. At this point, the project was 

95% completed.

PDT filed this suit on June 28, 2018. It sought a writ of certiorari to the Board 

and judicial review of the decision to deny the variance under local government code 

section 211.011. TEX. LOC. GOV’T CODE § 211.011. PDT asserted the Board abused 

its discretion and acted in an arbitrary and capricious manner in refusing to grant the 

variance. It also alleged the Board’s decision was erroneous and illegal and asked 

the court to reverse the Board and render judgment granting the variance. PDT also 

alleged that denial of the variance was arbitrary and capricious in violation of PDT’s 

right to the due course of law under the Texas Constitution. See TEX. CONST. art. I, 
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§ 19. The Board filed a plea to the jurisdiction on the grounds of governmental 

immunity. Afterwards, PDT filed an amended petition based on its original petition 

but adding the defenses of laches and waiver. PDT alleged that the City’s delay in 

raising the RPS restriction for six months while PDT continued construction in 

accordance with the approved plans and permits precluded the City from enforcing 

the RPS ordinance and from denying the variance.

Following mediation, the parties filed an agreed motion to abate the case while 

PDT sought another hearing on its request for a variance. The trial court abated the 

case and ordered the Board to set a new hearing on PDT’s request for a variance. 

The hearing was held on May 18, 2020. City staff again recommended approval of 

the variance. The Board, consisting of entirely new members, denied the variance at 

the conclusion of the hearing. 

The parties filed an agreed motion to lift the abatement on October 2, 2020. 

They advised the court of the May 18, 2020 hearing before the Board and the denial 

of PDT’s application for a variance. The trial court granted the motion on October 

8, 2020.

PDT filed its second amended petition on October 15, 2020. In addition to its 

previous allegations, PDT pleaded equitable estoppel, alleging the Board was 

estopped from enforcing the RPS ordinance and requested damages in the 
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alternative. PDT prayed for a judgment declaring1the Board is estopped from 

enforcing the RPS or, alternatively, awarding PDT damages for complying with the 

RPS ordinance. 

After a hearing on the Board’s plea to the jurisdiction, the trial court denied 

the plea and the Board perfected this interlocutory appeal of the order. 

The Board raises six issues on appeal: (1) the trial court erred by denying the 

plea to the jurisdiction; (2) the court lacked jurisdiction to review the Board’s 

decision at the May 18, 2020 hearing; (3) there is no jurisdiction over PDT’s 

equitable defenses; (4) there is no jurisdiction over any claim for damages; (5) this 

is not an exceptional case where estoppel applies against a city; and (6) there is no 

jurisdiction over PDT’s constitutional claim. 

Standard of Review

A plea to the jurisdiction is a dilatory plea that challenges the trial court’s 

subject matter jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 

2012). Whether a court has subject matter jurisdiction is a question of law that we 

review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 

(Tex. 2004). The plaintiff has the burden to affirmatively demonstrate the trial 

court’s jurisdiction. Id. “In a suit against a governmental unit, the plaintiff must 

1

PDT did not expressly seek a declaratory judgment under the Uniform Declaratory Judgments Act. 

Its prayer asked the court to declare that the Board is estopped from enforcing the RPS ordinance, but that 

relief would be duplicative of relief available under section 211.011. PDT did not plead for injunctive relief.

Therefore, we do not address the Board’s arguments about declaratory or injunctive relief. 
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affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of 

immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

We construe the plaintiff’s pleadings liberally, taking all factual assertions as true, 

and look to the plaintiff’s intent. Heckman, 369 S.W.3d at 149.

When, as here, the plea challenges jurisdictional facts, the standard generally 

mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 

228. We “consider relevant evidence submitted by the parties when necessary to 

resolve the jurisdictional issues raised,” even where those facts may implicate the 

merits of the cause of action. Id. at 227. If the evidence creates a fact question as to 

the jurisdictional issue, then the factfinder will decide that question. Id. “However, 

if the relevant evidence is undisputed or fails to raise a fact question on the 

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of 

law.” Id. When reviewing the evidence, we must “take as true all evidence favorable 

to the nonmovant and indulge every reasonable inference and resolve any doubts in 

the nonmovant’s favor.” Id. at 228.

“Governmental immunity generally protects municipalities and other state 

subdivisions from suit unless the immunity has been waived by the constitution or 

state law.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 

512 (Tex. 2019) (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 

2014)). Governmental immunity from suit deprives a court of subject matter 
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jurisdiction over claims against political subdivisions of the state, including cities, 

absent legislative waiver. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Discussion

A. Judicial Review Under Section 211.011

Under local government code section 211.011, a person aggrieved by a 

decision of a board of adjustment may seek judicial review by presenting a verified 

petition stating the decision is illegal, in whole or in part, and specifying the grounds 

of the illegality to a district court, county court, or county court at law. TEX. LOC.

GOV’T CODE § 211.011(a). The petition must be presented within ten days after the 

date the board’s decision is filed in the board’s office. Id. § 211.011(b). The court 

may reverse or affirm, in whole or in part, or modify the decision that is appealed.

Id. § 211.011(f). The court sits only as a court of review of the board of adjustment’s 

decision. See City of Dallas v. Vanesko, 189 S.W.3d 769, 771 (Tex. 2006). The only 

issue for the court to determine is the legality of the board of adjustment’s decision. 

Id. The plaintiff has the burden of establishing illegality by a “very clear showing” 

that the board of adjustment abused its discretion. See id.

While the parties argue the merits of whether a variance should have been 

granted by the Board, the issue before us is more narrow. We are concerned only 

with whether the trial court had subject matter jurisdiction to decide whether the 

Board’s decision was illegal under section 211.011. See Tarrant County Coll. Dist. 

v. Sims, 621 S.W.3d 323, 327 (Tex. App.—Dallas 2021, no pet.) (stating appellate 
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court does not look to the merits of the case but considers only the pleadings and 

evidence relevant to the jurisdictional inquiry). 

The Board does not dispute that the original petition was timely filed within 

ten days of the Board’s June 18, 2018 decision. The Board argues on appeal,

2

however, that PDT was required to file a new petition (either by amendment in this 

case or in a new case) within ten days of the May 20, 2020 Board hearing. The Board 

cites no authority for this requirement other than the general requirement that a 

petition for writ of certiorari must be filed within ten days of the Board’s decision. 

See LOC. GOV’T § 211.011(b); Tejas Motel, L.L.C. v. City of Mesquite, No. 05-19-

00667-CV, 2020 WL 2988566, at *4 (Tex. App.—Dallas June 4, 2020, pet. denied)

(mem. op.).

PDT filed this suit within ten days of the Board’s denial of the variance on 

June 18, 2018. Thus, it timely invoked the trial court jurisdiction to review the 

decision. LOC. GOV’T § 211.011(b). The Board’s latter decision reaffirming that

denial—made during the pendency of this suit—did not change the substance of the 

controversy between the parties or the issues before the trial court. “Once a party 

files a petition within ten (10) days after a zoning board decision, the court has 

2

PDT complains that the Board did not raise this contention in its plea to the jurisdiction. However, 

jurisdictional arguments can be raised for the first time on appeal. See Rusk State Hosp. v. Black, 392 

S.W.3d 88, 95 (Tex. 2012) (noting appellate court is not precluded from considering governmental 

immunity for first time on interlocutory appeal because governmental immunity deprives court of subject 

matter jurisdiction); Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (subject-matter 

jurisdiction cannot be waived and can be raised at any time).
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subject matter jurisdiction to hear and determine a claim that a board of adjustment 

acted illegally.” Davis v. Zoning Bd. of Adjustment of City of La Porte, 865 S.W.2d 

941, 942 (Tex. 1993) (per curiam); accord Tellez v. City of Socorro, 226 S.W.3d 

413, 414 (Tex. 2007) (per curiam).

But even if we assume, without deciding, that the second amended petition 

was not timely as to the May 20, 2020 Board decision, the Board has presented no 

persuasive authority that the trial court lost jurisdiction under section 211.011 to 

review the earlier denial of the variance. Under the unique circumstances of this 

case, PDT timely invoked the trial court’s jurisdiction under section 211.011 and 

later events did not deprive the court of jurisdiction to review the Board’s decision. 

“[W]here jurisdiction is once lawfully and properly acquired, no subsequent fact or 

event in the particular case serves to defeat the jurisdiction.” Flynt v. Garcia, 587 

S.W.2d 109, 109–10 (Tex. 1979) (per curiam); accord Chandy v. Kerala Christian 

Adult Homes, LLC, 618 S.W.3d 880, 885 (Tex. App.—Dallas 2021, no pet.).

The Board argues we must evaluate jurisdiction as to each claim. We agree. 

See Amador v. City of Irving, No. 05-19-00278-CV, 2020 WL 1316921, at *7–8

(Tex. App.—Dallas Mar. 20, 2020, no pet.) (concluding trial court had jurisdiction 

over breach of contract claim but not claims for fraudulent inducement, DTPA 

violations, and negligence). But we are not persuaded that PDT’s original request 

for judicial review of the denial of a variance in 2018 is a separate claim from its 

later request for judicial review merely because the Board denied the variance again 
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in 2020. PDT’s complaint is with the Board’s denial of a variance, not the timing or 

repeated occurrence of that denial. There is only one claim for denial of a variance 

from the application of the RPS ordinance at issue in this case.

The Board argues PDT’s pleadings did not show how the Board’s decision 

was illegal. But assuming the pleadings are inadequate, this is a procedural not a 

jurisdictional defect. See Tellez, 226 S.W.3d at 414 (noting that while local 

government code “requires specific allegations of illegality, nothing indicates the 

Legislature intended compliance to be jurisdictional”). Construing PDT’s pleading 

liberally, the petition is sufficient to invoke the trial court’s jurisdiction to review the 

decision of the Board under section 211.011. Id.

We conclude the trial court did not err by denying the plea to the jurisdiction 

as to PDT’s claim seeking judicial review under section 211.011. We overrule the 

Board’s second issue. 

B. Damages 

In its prayer for relief, PDT requested, in the alternative, an award of damages 

for complying with the RPS ordinance. PDT did not specify what cause of action 

entitled it to recover damages or cite express authority waiving governmental 

immunity for recovery of damages. 

The plain language of section 211.011(f) does not authorize an award of 

damages. LOC. GOV’T § 211.011(f) (authorizing court to reverse or affirm, in whole 

or in part, or modify the board’s decision).
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Further, PDT is not entitled to damages on its due-course-of-law claim. There 

is no implied right of action to recover money damages for violation of the duecourse-of-law provision of the Texas Bill of Rights. Sims, 621 S.W.3d at 330; City 

of Houston v. Downstream Envtl., L.L.C., 444 S.W.3d 24, 40 (Tex. App.—Houston 

[1st Dist.] 2014, pet. denied); see also City of Beaumont v. Bouillion, 896 S.W.2d 

143, 148–49 (Tex. 1995) (holding there is no cause of action for damages against 

governmental entities for violations of free speech and assembly clauses of Texas 

Constitution). 

PDT has not shown an express waiver of immunity to recover damages for 

equitable estoppel, waiver, or laches. Indeed, equitable estoppel is not an 

independent cause of action. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 

156 n.1 (Tex. 2004); Southland Life Ins. Co. v. Vela, 217 S.W.2d 660, 663 (Tex. 

1949). Waiver and laches, like equitable estoppel, are defensive in nature and do not 

create independent causes of action. Hruska v. First State Bank of Deanville, 747 

S.W.2d 783, 785 (Tex. 1988); Jim Rutherford Investments, Inc. v. Terramar Beach 

Cmty. Ass’n, 25 S.W.3d 845, 852–53 (Tex. App.—Houston [14th Dist.] 2000, pet. 

denied). PDT has not shown it is entitled to damages under these defenses, much 

less an express waiver of immunity allowing recovery of such damages. 

PDT argues Maguire Oil Co. v. City of Houston, 69 S.W.3d 350 (Tex. App.—

Texarkana 2002, pet. denied) supports a claim for damages. In Maguire Oil, the 

court of appeals reversed a summary judgment for the city on Maguire’s claims for 
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inverse condemnation and promissory estoppel but affirmed summary judgment on 

negligent misrepresentation. Id. at 364, 372. Maguire Oil is not applicable here 

because PDT did not allege any of these causes of action. 

We conclude PDT failed to affirmatively demonstrate a waiver of immunity 

allowing damages for any of its claims. The trial court erred by denying the plea to 

the jurisdiction as to any claim for money damages. We sustain the Board’s fourth 

issue.

C. Due Course of Law

PDT alleged the Board’s denial of a variance violated its right to due course 

of law under the Texas Constitution. See TEX. CONST. art. I, § 19. PDT argued the 

Board was arbitrary and capricious in refusing to grant the variance. The Board 

argues PDT does not have a viable constitutional claim because it does not have a 

property interest in the granting of a variance. 

The Texas Constitution authorizes suits for equitable or injunctive relief for 

violations of the Texas Bill of Rights. Bouillion, 896 S.W.2d at 148–49 (citing Tex. 

Const. art. I § 29). “But this limited waiver of immunity exists only to the extent the 

plaintiff has pleaded a viable constitutional claim.” Downstream Envtl., L.L.C., 444 

S.W.3d at 38. Immunity is not waived for constitutional claims “if the constitutional 

claims are facially invalid.” Klumb v. Houston Mun. Employees Pension Sys., 458 

S.W.3d 1, 13 (Tex. 2015); see also Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 
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(Tex. 2011) (noting secretary of state retains immunity from suit unless plaintiffs 

alleged a viable equal protection claim).

To state a valid due-course-of-law claim, a plaintiff must have a liberty or 

property interest that is entitled to constitutional protection. Klumb, 458 S.W.3d at 

15. A constitutionally protected right must be a vested right, which is “something 

more than a mere expectancy based upon an anticipated continuance of an existing 

law.” Id. (quoting City of Dallas v. Trammell, 101 S.W.2d 1009, 1014 (Tex. 1937)

(citation omitted)).

We agree with the Board that PDT has not stated a valid due-course-of-law 

claim because it does not have a vested property right in obtaining a variance from 

the RPS ordinance. A right is vested when it “has some definitive, rather than merely 

potential existence.” Tex. S. Univ. v. State Street Bank & Trust Co., 212 S.W.3d 893, 

903 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). A variance from the terms 

of a zoning ordinance may be granted in specific cases if it is not contrary to the 

public interest and “due to special conditions, a literal enforcement of the ordinance 

would result in unnecessary hardship, and so that the spirit of the ordinance is 

observed and substantial justice is done . . .” LOC. GOV’T § 211.009(a)(3); see 

Vanesko, 189 S.W.3d at 772. However, the City of Dallas has adopted standards for 

granting a variance, which “impose significant barriers to obtaining a variance and 

sharply curtail the Board’s discretion in issuing one.” Vanesko, 189 S.W.3d at 772.

“The mere issuance of a building permit does not render a city’s zoning ordinances 
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unenforceable, nor does the fact that a permit was issued in error entitle the property 

owner to a variance in every case.” Id. at 774. Thus, PDT has no right to obtain a 

variance.

PDT urges that the City issued a permit for the building, and it relied on that 

permit in continuing the construction. However, a person does not acquire a vested 

right in a building permit issued in violation of an ordinance. City of Amarillo v. 

Stapf, 101 S.W.2d 229, 232 (Tex. 1937). In Stapf, a building inspector issued a 

permit for construction of a foundry in a manufacturing district that did not allow

such use. Id. Because the ordinance did not allow a foundry at the location, “the 

action of the building inspector in granting the permit was unauthorized, and the 

permit was void. Under such permit appellee could acquire no rights, and no estoppel 

would be created.” Id.; see also Swain v. Bd. of Adjustment of City of University 

Park, 433 S.W.2d 727, 733 (Tex. Civ. App.—Dallas 1968, writ ref’d n.r.e.) (holding 

permit issued in violation of ordinance is void ab initio and no rights were acquired 

by permit holder); Davis v. City of Abilene, 250 S.W.2d 685, 687 (Tex. Civ. App.—

Eastland 1952, writ ref’d) (holding permit issued in violation of ordinance was void 

and vested no rights in permit holder). Put simply, the “building inspector had no 

power, by the issuance of a permit, to amend or repeal the ordinance.” Stapf, 101 

S.W.2d at 232 (quoting City of Maplewood v. Provost, 25 S.W.2d 142, 143 (Mo. 

App. 1930)). 
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Moreover, the Dallas City Code provides that issuance of a permit or approval 

of plans “shall not be construed to be a permit for, or an approval of, any violation 

of any provision of the codes or of any other city ordinance.” Dallas, Tex., Code ch. 

52, § 302.4. Any permit presuming to give authority to violate a code provision or 

other city ordinance “shall not be valid.” Id. Issuance of a permit does not prevent 

the building official “from preventing building operations being carried on when in 

violation of the codes or of any other city ordinance.” Id. The building official has 

the duty to suspend or revoke a permit issued in error or “in violation of any city 

ordinance or regulation or any provision of this chapter or the codes.” Id. § 302.6.1. 

We conclude PDT failed to raise a viable due-course-of-law claim. Therefore, 

governmental immunity is not waived for PDT’s constitutional claim. We sustain 

the Board’s sixth issue. 

D. Defensive Theories

PDT alleged equitable estoppel, laches, and waiver stemming from the City’s 

delay in raising the RPS ordinance and PDT’s reliance on the approved plans and 

permits. PDT contends the City is estopped from enforcing the RPS ordinance 

against its property and the Board is required to grant a variance. The Board argues 

these theories are defensive and cannot create jurisdiction or operate as a waiver of 

governmental immunity. 

The supreme court has long held that a city cannot be estopped from 

exercising its governmental functions and that the unauthorized act of a government 
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official cannot estop a city’s enforcement of a zoning ordinance. See City of White 

Settlement v. Super Wash, Inc., 198 S.W.3d 770, 773–74 (Tex. 2006); City of 

Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970) (city not estopped from 

enforcing zoning restrictions); Stapf, 101 S.W.2d at 232. There is, however,

authority for a limited exception to this rule in cases where justice requires its 

application and there is no interference with the exercise of the city’s governmental 

functions. Super Wash, 198 S.W.3d at 774; Prasifka, 450 S.W.2d at 836 (citing City 

of Dallas v. Rosenthal, 239 S.W.2d 636 (Tex. Civ. App.—Dallas 1951, writ ref’d 

n.r.e.)). But this exception is available “only in exceptional cases where the 

circumstances clearly demand its application to prevent manifest injustice.” 

Prasifka, 450 S.W.2d at 836. In Super Wash, the supreme court further clarified the 

exception and “reiterat[ed] its limited applicability.” Super Wash, 198 S.W.3d at 774

(noting court has applied exception in only one circumstance where city officials 

made misleading statements regarding compliance with notice of claim 

requirement).

The merits of whether the limited exception applies to prevent the City from 

enforcing the RPS ordinance are not before us. Super Wash and the cases discussing 

the exception addressed the issue of whether and under what exceptional 

circumstances a city may be estopped from enforcing an ordinance, not whether the 

city’s conduct could create jurisdiction where it did not otherwise exist. See Super 

Wash, 198 S.W.3d at 775–76 (holding that mistaken approval of building permit did 
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not estop city’s enforcement of zoning ordinance); Prasifka, 450 S.W.2d at 883–84 

(holding unauthorized alteration of zoning map did not estop city from enforcing 

zoning ordinance); Stapf, 101 S.W.2d at 232 (holding permit issued in violation of 

ordinance did not create estoppel). Estoppel does not create subject matter 

jurisdiction: “[A] court cannot acquire subject-matter jurisdiction by estoppel.” 

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001). “A 

party cannot by its own conduct confer jurisdiction on a court when none exists.” Id.

at 294–95; see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) 

(“[S]ubject-matter jurisdiction is a power that ‘exists by operation of law only, and 

cannot be conferred upon any court by consent or waiver’ . . .” (quoting Federal 

Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943))).

Here, jurisdiction exists for judicial review of the Board’s decision under 

section 211.011. Within that jurisdiction, the trial court may or may not decide that 

the exception applies, but that decision is for the trial court in the first instance. We 

conclude equitable estoppel, laches, and waiver are defensive theories that may be 

considered in the context of judicial review of the Board’s decision pursuant to 

section 211.011, subject to the principles set out in Vanesko. See LOC. GOV’T §

211.011; Vanesko, 189 S.W.3d at 771. We express no opinion on the merits of these 

theories. See Vanesko, 189 S.W.3d at 774 (concluding Board not required to consider 

erroneous issuance of permit). Accordingly, the trial court did not err by denying the 

plea to the jurisdiction as to these defensive theories. We overrule the Board’s third 
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issue and do not address its fifth issue, which argues this is not an exceptional case 

where estoppel applies. See TEX. R. APP. P. 47.1.

Conclusion

PDT has not shown a waiver of governmental immunity for the recovery of

money damages. It has also failed to plead a viable due-course-of-law claim for the 

denial of a variance from the RPS ordinance. We conclude the trial court erred by 

denying the Board’s plea to the jurisdiction as to any claim for damages and as to 

the due-course-of-law claim. However, PDT’s equitable defensive theories are 

within the trial court’s jurisdiction to review the Board’s decision under section 

211.011. We sustain the Board’s first issue in part and overrule it in part.

We reverse the trial court’s order in part and render judgment dismissing 

PDT’s claims for money damages and due-course-of-law violations for want of 

jurisdiction. In all other respects, we affirm the trial court’s order and remand for 

further proceedings consistent with this opinion. 

/Erin A. Nowell//

ERIN A. NOWELL

JUSTICE

210018f.p05

Pedersen, III, J., concurring
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CITY OF DALLAS AND BOARD 

OF ADJUSTMENT OF THE CITY 

OF DALLAS, Appellants

No. 05-21-00018-CV V.

PDT HOLDINGS, INC. AND 

PHILLIP THOMPSON HOMES, 

INC, D/B/A PHILLIP THOMPSON 

CUSTOM HOMES, Appellees

On Appeal from the 14th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-18-08484.

Opinion delivered by Justice Nowell. 

Justices Osborne and Pedersen, III 

participating.

In accordance with this Court’s opinion of this date, the trial court’s 

December 21, 2020 order denying defendants’ plea to the jurisdiction is 

AFFIRMED in part and REVERSED in part. We REVERSE that portion of the 

trial court’s order denying appellants’ plea to the jurisdiction as to appellees’ 

claims for money damages and for violation of the due course of law. We 

RENDER judgment dismissing appellees’ claims for money damages and for 

violation of the due course of law for want of jurisdiction. In all other respects, the 

trial court’s order is AFFIRMED. We REMAND this cause to the trial court for 

further proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 24th day of August, 2021.