In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             ___________________

                              NO. 09-15-00459-CV
                             ___________________


          TERRY PORTER AND JENNIFER PORTER, Appellants

                                        V.

                MONTGOMERY COUNTY, TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 410th District Court
                     Montgomery County, Texas
                   Trial Cause No. 15-05-05306-CV
__________________________________________________________________

                         MEMORANDUM OPINION

      In this appeal, we consider whether the trial court properly exercised

jurisdiction over a Uniform Declaratory Judgments Act claim in which the plaintiffs

sought to have the trial court decide whether the order rendered by Montgomery

County Commissioners Court prohibiting the discharge of firearms in an

unincorporated subdivision applied to the lots they owned in an unincorporated


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subdivision in Montgomery County. See Tex. Civ. Prac. & Rem. Code Ann. §§

37.001-.011 (West 2015) (Declaratory Judgments Act). We conclude that because

no claim was made asserting that the order rendered by the Commissioners Court

was invalid, the trial court did not have subject-matter jurisdiction over the

controversy to allow it to provide the parties with its interpretation of the order. We

hold the trial court erred by failing to grant Montgomery County’s plea to the

jurisdiction, and we order the suit dismissed for want of jurisdiction.

                                     Background

      In 2005, the Commissioners Court of Montgomery County passed an order

regulating the discharge of firearms in subdivisions within the unincorporated areas

of the county. See Tex. Loc. Gov’t Code Ann. § 235.022 (West 2016) (authorizing

commissioners courts to regulate the discharge of firearms and air guns). In relevant

part, the order states that “[t]he discharge of firearms is hereby prohibited in

Montgomery County on lots of ten acres or smaller in a subdivision which is located

in the unincorporated area of the County.” Another section of the order provides that

“[a] person commits an offense if the person intentionally or knowingly discharges

a firearm on a subdivision lot in a subdivision in the unincorporated area of

Montgomery County.”



                                          2
      In 2008, Terry and Jennifer Porter purchased four contiguous lots covering

21.883 acres in an unincorporated subdivision in Montgomery County. Shortly after

the Porters purchased the four lots, they placed a fence around them and opened a

shooting range.

      In 2012, the Porters received a letter from the County Attorney advising that

the discharge of firearms on their lots was prohibited. In the same letter, the County

Attorney advised the Porters that a violation of the order regulating the discharge of

firearms was a class C misdemeanor and punishable by a fine not to exceed $500.

      After receiving the County Attorney’s letter, the Porters asked Commissioners

Court to remove their four lots from the subdivision. See Tex. Loc. Gov’t Code Ann.

§ 232.008 (West 2016) (allowing a property owner to apply to commissioners court

to cancel all or part of the subdivision to reestablish the property acreage as it existed

prior to the subdivision). Following a public hearing in February 2013, the

Commissioners Court denied the Porters’ request.

      In 2015, the Porters filed a suit against the County seeking a declaratory

judgment that the order regulating the discharge of firearms did not apply to their

lots. In their petition, the Porters alleged that sovereign immunity did not apply to

their suit because the Declaratory Judgments Act authorized courts to construe

ordinances and to determine whether the ordinance at issue applied. See Tex. Civ.

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Prac. & Rem. Code Ann. § 37.004(a). The Porters’ suit asked the trial court to

declare that the order did not apply to their lots because they were contiguous and

because they are adjoining lots, the regulation did not apply.

      In its answer to the Porters’ suit, the County asserted that governmental

immunity deprived the trial court of jurisdiction over the Porters’ claims.

Subsequently, the County filed a plea to the jurisdiction, arguing that the Declaratory

Judgments Act did not operate as a waiver with respect to its right to governmental

immunity from a suit because the Porters had not claimed that the order they were

challenging was invalid. In its plea, Montgomery County alleged that the Porters’

“declaratory judgment action does NOT seek a declaration that the Ordinance is

invalid[.]”

      After Montgomery County filed its plea to the jurisdiction, the Porters and the

County filed motions for summary judgment. The trial court considered both the

plea to the jurisdiction and the motions for summary judgment without conducting

an oral hearing. When the court ruled on the pending motions and the plea to the

jurisdiction, it denied the County’s plea to the jurisdiction, denied the Porters’

motion for summary judgment, and granted the County’s motion for summary

judgment.



                                          4
      Both the County and the Porters appealed from the trial court’s judgment. In

their appeal, the Porters argue that the trial court did not err by denying the County’s

plea. They also argue that the trial court erred by adopting a construction of the order

regulating the discharge of firearms that allowed the order to be applied to

contiguous lots that collectively cover an area exceeding ten acres.

      In its appeal, the County argues that the trial court erred by denying its plea to

the jurisdiction. According to the County, the Declaratory Judgments Act does not

waive a county’s right to governmental immunity when the claim merely seeks to

have a trial court interpret an order whose validity is not otherwise being challenged.

The County also contends that if the trial court had jurisdiction to interpret the order,

the trial court properly ruled that the order applies to contiguous lots even if the

acreage covered by such lots exceeds ten acres.

                                Plea to the Jurisdiction

      First, we are required to address whether the trial court possessed jurisdiction

over the dispute before we may reach the merits of the disagreement the parties have

regarding the interpretation of the order at issue in the appeal. See Rusk State Hosp.

v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a court does not have

jurisdiction, its opinion addressing any issues other than jurisdiction is advisory). By

filing a plea to the jurisdiction, the County challenged the trial court’s power to

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exercise subject-matter jurisdiction over the Porters’ case. A plea to the jurisdiction

is a dilatory plea, which is used to defeat a plaintiff’s cause of action without regard

to whether the plaintiff’s claims have merit. See Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). Generally, absent a statute where the Legislature

expressly waived a governmental entity’s immunity from suit, trial courts lack

subject-matter jurisdiction over suits against governmental entities, which includes

the State’s counties. See Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The

question of whether a trial court properly exercised subject-matter jurisdiction over

a case is reviewed as a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). We apply a de novo standard when reviewing trial

court rulings on pleas to the jurisdiction. Id.; Tex. Nat. Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

      On appeal, in reviewing the trial court’s ruling on a plea to the jurisdiction,

the appeals court “may not weigh the claims’ merits but must consider only the

plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry.” Cty. of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In this case, Montgomery

County’s plea asserted that the Declaratory Judgments Act did not waive its

immunity regarding the Porters’ declaratory judgment claims where the claims

presented no challenge to the validity of the order issued by a Commissioners Court.

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When the plea to the jurisdiction presents a challenge to the sufficiency of the

plaintiff’s pleadings, we are required to determine whether the plaintiff’s pleadings

allege “facts that affirmatively demonstrate the court’s jurisdiction to hear the

cause.” Miranda, 133 S.W.3d at 226. To do so, we construe the pleadings in the

plaintiff’s favor and look to the plaintiff’s intent. See Brown, 80 S.W.3d at 555.

When the plaintiff’s pleadings affirmatively negate the existence of jurisdiction,

“then a plea to the jurisdiction may be granted without allowing the plaintiffs an

opportunity to amend.” Miranda, 133 S.W.3d at 227. Stated another way, when a

court determines that the plaintiff’s pleadings are deficient but also determines that

the deficiency in the pleadings can be cured, the plaintiff “deserves ‘a reasonable

opportunity to amend’ unless the pleadings affirmatively negate the existence of

jurisdiction.” Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007)

(quoting Sykes, 136 S.W.3d at 639); Miranda, 133 S.W.3d at 226-27; Brown, 80
S.W.3d at 555.

      The Porters argue that the Legislature waived governmental immunity with

respect to declaratory judgment actions seeking a trial court’s construction of an

ordinance. Generally, the Declaratory Judgments Act permits persons whose rights,

status, or other legal relations are affected by a municipal ordinance to obtain a

declaration of their rights under the ordinance. Tex. Civ. Prac. & Rem. Code Ann. §

                                          7
37.004(a). Nonetheless, while the Supreme Court has indicated the Declaratory

Judgments Act waives immunity with respect to claims where a party is seeking to

have a statutory provision declared invalid, the Act does not generally waive

governmental immunity regarding all claims that are otherwise encompassed by the

Act. See City of McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 111 (Tex.

App.―Dallas 2013, no pet.). For instance, with respect to claims challenging the

validity or constitutionality of an ordinance or a statute, the Texas Supreme Court

has recognized that the Declaratory Judgments Act waives immunity and requires

that the relevant municipality or the state be named as a party to the suit. Tex. Dep’t

of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011); see also Tex. Civ. Prac. &

Rem. Code Ann. § 37.006(b) (addressing necessary parties to suit challenging a

statute). However, in this case, the Porters never challenged the validity or

constitutionality of the order issued by the Commissioners Court. Instead, their suit

asked the trial court for its interpretation of whether the order applied to contiguous

lots, and they asked the trial court to declare their rights based on its interpretation

of the order.

      Where no claim is made that the regulation being challenged is invalid, the

Declaratory Judgments Act does not waive governmental immunity to allow a party

to obtain a trial court’s interpretation of otherwise valid statutes or ordinances. See

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City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (concluding that

governmental agencies, as opposed to their officers who can be sued in their official

capacity for ultra vires acts, remain immune from suit except when the suit

challenges the validity of the ordinance or statute); Sefzik, 355 S.W.3d at 621 (stating

that the Declaratory Judgments Act does not waive immunity “when the plaintiff

seeks a declaration of his or her rights under a statute or other law[]”). While the

Porters suggest that the Texas Supreme Court allowed a party to obtain an

interpretation of a statute in Texas Education Agency v. Leeper, 893 S.W.2d 432,

446 (Tex. 1994), after deciding Leeper, the Texas Supreme Court subsequently

clarified that the Declaratory Judgments Act does not operate as a waiver for claims

seeking a court’s interpretation of a statute unless the plaintiff has challenged the

validity of the statute. Sefzik, 355 S.W.3d at 622. Since the Porters never challenged

the validity of the order regulating the discharge of firearms, the Declaratory

Judgments Act cannot be used as the source of the waiver the law required to vest

the trial court with the subject-matter jurisdiction it needs to hear the Porters’ claims.

We hold that the Porters’ pleadings failed to demonstrate that the Declaratory

Judgments Act operated to waive Montgomery County’s immunity from suit. See

id. at 621 (concluding that the Act does not waive immunity when a plaintiff seeks

a declaration of their rights); Hank’s Rest. Grp., L.P., 412 S.W.3d at 112 (explaining

                                            9
that the Declaratory Judgments Act does not waive immunity regarding claims

seeking a declaration of a plaintiff’s statutory rights or an interpretation of an

ordinance when there is not a claim that the provision is invalid). In other words, the

Porters’ pleadings fail to allege facts that, if true, affirmatively demonstrated that the

Legislature waived Montgomery County’s governmental immunity from the

Porters’ suit seeking an interpretation of the order prohibiting the discharge of

firearms. See Miranda, 133 S.W.3d at 227. We sustain Montgomery County’s

jurisdictional challenge to the trial court’s authority to resolve the Porters’ claims.

Consequently, we reverse the trial court’s order denying the County’s plea.

      Next, we consider whether the Porters had an adequate opportunity to amend

their pleadings to raise a viable challenge to the validity of the Commissioners

Court’s order while the case was pending before the trial court. In their reply brief,

the Porters suggest that if their pleadings are insufficient, they should be permitted

to amend and replead. According to the Porters, their failure to allege a valid

statutory waiver as to the County’s immunity could be cured if they are allowed to

replead and challenge the validity of the order regulating the discharge of firearms.

      However, the Porters were on notice before the trial court decided the case

that they had not challenged the validity of the order at issue. Thus, they were

notified of the defect that has proven dispositive of their appeal when their pleadings

                                           10
could have been amended. Moreover, we are not persuaded that the Porters can

present a valid challenge to the validity of the Commissioners Court’s order. The

Legislature gave county commissioners the authority to regulate the discharge of

firearms, regardless of whether the order the commissioners chose to use utilized the

singular or plural version of the word “lot.” See Tex. Loc. Gov’t Code Ann. §

235.022 (authorizing county commissioners to regulate the discharge of firearms in

unincorporated subdivisions); Tex. Gov’t Code Ann. § 311.012(b) (West 2013)

(“The singular includes the plural and the plural includes the singular.”). Given a

statutory provision granting county commissioners the authority to regulate the

discharge of firearms on both a lot and on lots, we hold the Porters have not

demonstrated that the defect in their pleadings is capable of being cured by amending

them to assert the Legislature did not give county commissioners the authority to

regulate the discharge of firearms on contiguous lots. See Sykes, 136 S.W.3d at 639

(noting that dismissal with prejudice is appropriate when a trial court lacks subject-

matter jurisdiction due to governmental immunity bar).

      Given our conclusion that the trial court lacked subject-matter jurisdiction

over the dispute, we do not address the Porters’ issue that argues the trial court erred

by granting Montgomery County’s motion for summary judgment. See Tex. R. App.

P. 47.1. Under the circumstances presented in this record, we hold that the Porters’

                                          11
case must be dismissed with prejudice. See Sykes, 136 S.W.3d at 639. We reverse

the trial court’s order denying Montgomery County’s plea, and we order the Porters’

case against Montgomery County dismissed, with prejudice. See Tex. R. App. P.

43.2(c).

      REVERSED AND RENDERED.



                                             ______________________________
                                                    HOLLIS HORTON
                                                         Justice


Submitted on September 15, 2016
Opinion Delivered February 16, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.




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