Cnty. of El Paso v. Navar

• Decision Date: 07 August 2015
• Docket Number: No. 08–14–00250–CV,08–14–00250–CV
• Citation: 511 S.W.3d 624
• Parties: COUNTY OF EL PASO, Appellant, v. Joel NAVAR, Appellee.
• Court: Texas Court of Appeals

511 S.W.3d 624

COUNTY OF EL PASO, Appellant,

v.Joel NAVAR, Appellee.

No. 08–14–00250–CV

Court of Appeals of Texas, El Paso.

August 7, 2015

Ruben Duarte, for County of El Paso.

Paul F. Grajeda, for Joel Navar.

Before Rodriguez, J., Hughes, J., and Barajas, Senior Judge (Sitting by Assignment)

OPINION

YVONNE T. RODRIGUEZ, Justice

Joel Navar sued the County of El Paso for money damages resulting from the County's failure to issue certificates of compliance for mobile home lots owned by him and for a declaration that he is entitled to those certificates. Claiming governmental immunity from suit and from liability, the County filed a plea to the jurisdiction seeking dismissal of Navar's claims against it. After holding a hearing on the County's plea, the trial court denied it without explanation. The County now brings this interlocutory appeal. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(8) (West 2015). We affirm, in part, and vacate and render, in part.

FACTUAL AND PROCEDURAL BACKGROUND

Navar owns mobile home lots located in Fabens, TX. Section 232.023 of the Texas Local Government Code requires an owner of land situated within 50 miles of an international border to file a plat with the County Clerk if subdividing a parcel of land into lots for sale or lease. See TEX.LOC.GOV'T CODE ANN. § 232.021(14), TEX.LOC.GOV'T CODE ANN. § 232.023 (West Supp.2014). The plat must, among other requirements, include certifications that utility services to the lots meet or will meet minimum state standards. TEX.LOC.GOV'T CODE ANN. § 232.023(b)(12).

Each plat must be approved by the commissioners' court. TEX.LOC.GOV'T CODE ANN. § 232.024(a). If the commissioners' court approves a plat, it is required to "issue to the person applying for the approval a certificate stating that the plat has been reviewed and approved by the commissioners court." TEX.LOC.GOV'T CODE ANN. § 232.028(a). This person may also petition the commissioners' court for a written certification determining:

(1) whether a plat has been prepared and whether it has been reviewed and approved by the commissioners court;

(2) whether water service facilities have been constructed or installed to service the lot or subdivision under Section 232.023 and are fully operable;

(3) whether sewer service facilities have been constructed or installed to service the lot or subdivision under Section 232.023 and are fully operable, or if septic systems are used, whether the lot is served by a permitted on-site sewage facility or lots in the subdivision can be adequately and legally served by septic systems under Section 232.023 ; and(4) whether electrical and gas facilities, if available, have been constructed or installed to service the lot or subdivision under Section 232.023.

See Id. at § 232.028(b), (d). By law, the commissioners' court must "make its determinations within 20 days after the date it receives the request under Subsection (b) and shall issue the certificate, if appropriate, within 10 days after the date the determinations are made." Id. at § 232.028(e).

On or about April 1, 2008, Navar sought certificates of compliance for four parcels of land owned by him. "The certificates ... are necessary to secure utility services for tenants and prospective tenants of various mobile homes located on or about the properties." In his handwritten letter to the El Paso County Commissioner's Court and the Roads & Bridges Department requesting the issuance of the certificates, Navar stated:

Addecuate [sic] water & sewer is available to these subdivisions as required by law. Note that I have gotten certificates of compliance before. I hereby request you honor them or reissue new one without objection. Please respond in writing if any request is denied. [sic] and reason for denial.

...

As property owner, I own several lots and I like to help my tenants and prospective tenants have their household and residency stablished [sic] the eseast [sic] posible [sic] way and in compliance. [sic] by having the certificate ready for their utilities conection [sic] to their new home upon request.

As I have done in the past, prior to the 2005 Law/Enforcement. According to Code, I have been in compliance as permited [sic] by law. Needless to mention, I should not be forced or required to get 30 supply contracts/or paid deposits.

Luis Rodriguez, "the Lead Planner of [El Paso County's] Road & Bridge Department/Public Works Department[,]" denied the issuance of the certificates because "[t]he residences situated on Plaintiff's parcels of land were not in compliance with statutory authority." Rodriguez did not identify the statutory authority on which he relied.

Navar sued the County on May 11, 2010 for failing to issue the certificates and to make the determinations he requested. Sometime thereafter, the County issued the certificates of compliance and made the determinations requested by Navar. According to Luis Rodriguez, the certificates of compliance were issued to Navar because "the number of parcels of land was greater than the number of residences situated therein." Despite receiving the documents he requested, Navar proceeded with his lawsuit against the County. In his amended petition filed April 17, 2014, Navar alleged that the County was liable for engaging in the following conduct:

Employees, agents and/or representatives of the County acting within the course and scope of that relationship notified Plaintiff that he would be required to re-construct, at Plaintiff's expense the water and sewage facilities for the parcels of property even though the parcels already contained fully operable water and sewage facilities for the mobile homes as they were situated. Plaintiff was told by the County agent that he would be issued a certificate of compliance only after such re-construction was complete. Plaintiff was also notified that he would be required to re-position mobile homes that were located on the parcels of property even though the mobile homes had existed in their current location for decades before, even though existing water, electrical, gas and sewage facilities had been constructed to service the mobile homes in their current position and even though the County had issued certificates of compliance based on the current mobile home location and current water, sewage, gas and electrical facilities. The County refused without any legitimate basis to issue the certificates or make the determinations required by law, and the County insisted on the mobile home re-location and facility re-construction without any legitimate basis. After this litigation had been pending for many years, the County finally issued the certificates. However, during the time prior to the certificates being issued, Plaintiff was unable to secure utility service and suffered damages as a result of his inability to lease the mobile homes located on the parcels of property because of the County's intentional failure to issue the certificates within the time limits required by law. [Emphasis added].

Navar brought causes of action for wrongful taking of personal property, for violation of the constitutional prohibition against retroactive laws, and for declaratory relief. As mentioned above, the County responded by filing a plea to the jurisdiction, which the trial court denied.

STANDARD OF REVIEW

A plea to the jurisdiction based on governmental immunity challenges a trial court's subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review on appeal. Id. at 226, 228. In determining whether the plaintiff has carried his burden to allege facts sufficient to establish subject-matter jurisdiction, we review the allegations in the pleadings—accepting them as true and construing them in the plaintiff's favor—and any evidence relevant to the inquiry. Id. at 226–27. If the evidence raises a fact question on jurisdiction, the plea must be denied. Miranda, 133 S.W.3d at 227–28. But if the pleadings affirmatively negate jurisdiction, the plea must be granted. Id. at 226–27.

GOVERNMENTAL IMMUNITY

The County, as a political subdivision of the state, is entitled to governmental immunity from a suit for money damages unless its immunity has been waived. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex.2014). Without this waiver, courts have no jurisdiction to adjudicate any claim against the County. Id. It is Navar's burden to establish the County's consent to be sued through a waiver of immunity. Id.

REGULATORY TAKING

In its first issue, the County concedes governmental immunity from suit does not shield it from an action for compensation under the takings clause. See Gen. Servs. Comm'n v. Little–Tex Insulation Co., Inc., 39 S.W.3d 591, 598–99 (Tex.2001) (noting that governmental immunity "does not shield the State from an action for compensation under the takings clause"); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) ("The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use."). But the County argues Navar failed to allege a viable takings claim under Article I, Section 17 of the Texas Constitution, which provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made ..." Tex. Const. art. I, § 17. We disagree.

Applicable Law

Navar pled that the County's "conduct constitutes a regulatory taking." "A regulatory taking is a condition of use ‘so onerous that its effect is tantamount to a direct appropriation or ouster.’ " City of Houston, 451 S.W.3d at 831 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 2081, 161 L.Ed.2d 876 (2005) ). On appeal, Navar contends that his taking theory is viable under either the Penn Central...