Kendall County v. Waring Land Investments, LLC

NUMBER 13-23-00328-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KENDALL COUNTY, ET AL., Appellants,

v.

WARING LAND INVESTMENTS, LLC, Appellee.

ON APPEAL FROM THE 451ST DISTRICT COURT
OF KENDALL COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Chief Justice Tijerina

Appellants Kendall County, et al. appeal the trial court’s denial of their plea to the

jurisdiction. By eleven issues, appellants argue the trial court erred in denying their plea

to the jurisdiction.1 We affirm.

1 Specifically, appellants argue: (1) there was no plat; (2) appellee’s claims are not ripe; (3) Kendall

County’s 2006 on-site sewage facility order applies to appellee’s permit applications; (4) appellee is not
I. BACKGROUND2

In 1887, R.P.M. Waring created a new town named Waringsford (Waring) near the

Guadalupe River in Kendall County. R.P.M. filed documents similar to a plat3 (the plat) in

the official public records in Kendall County on October 5, 1887. The town was later

renamed Waring. In July 2020, appellee Waring Land Investments, LLC acquired forty-

nine undeveloped lots (the property) in Waring to develop homes. To start this project,

appellee sought to build twelve houses within Block 19 of the property. Appellee planned

for each house to have its own on-site sewage facility (OSSF), also known as a septic

tank, and for every two lots to share a water well.

In November 2021, appellee applied for an OSSF permit application with Kendall

County for Block 19. Kendall County denied the application, stating that the lots “do not

meet basic health and safety standards for well spacing and septic placement.” Appellee

appealed Kendall County’s decision to the Kendall County’s Commissioners Court (the

Commissioners Court). The Commissioners Court upheld Kendall County’s decision due

to “health and safety” reasons and, according to appellee, suggested disapproval of the

entire Waring project—not just Block 19.

exempt from Kendall County’s 2010 development rules; (5) Kendall County’s restrictions do not violate
§ 231.101 of the Texas Government Code; (6) the requirement of a development permit does not conflict
with § 233.153 of the Texas Government Code; (7) appellee was not entitled to permits due to the small
size of its lots; (8) appellee is not entitled to declaratory or injunctive relief related to criminal statutes;
(9) appellants properly denied the permits, and appellee did not demonstrate an abuse of discretion; (10)
appellee’s equal protection claim is not ripe; and (11) appellee should not be granted leave to amend.

2 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.

3 The parties dispute whether an official “plat” was recorded.

2
On February 10, 2023, appellee filed its original petition and application for

permanent injunction in the trial court claiming appellants4 acted ultra vires. Appellee

claimed the trial court had jurisdiction over its claims pursuant to Article V, § 8 of the

Texas Constitution. See TEX. CONST. art. V, § 8. Appellee further sought an injunction

“compelling [appellants] to issue permits” for Block 19.

Appellants filed a general denial, motion to stay discovery, special exceptions, plea

to the jurisdiction, and a Rule 91a motion to dismiss. Appellants generally asserted that

appellee failed to plead facts establishing a waiver of appellants’ governmental immunity

to suit. More specifically, they claimed that appellee failed to assert a valid ultra vires

claim because the 1887 property division of Waring was never included in an application

for development to Kendall County and thus is not a recognized plat. They also argued

that appellee cited no legal authority that it had a legally designated plat. Appellants

requested that the trial court require that appellee plead sufficient facts and a legal basis

for a waiver of immunity. Appellants further asserted that appellee failed to demonstrate

that the Commissioners Court had any authority to approve or deny applications or that it

improperly used whatever authority it did hold.

After a non-evidentiary hearing, the trial court denied appellants’ plea to the

jurisdiction on June 22, 2023. Appellants filed this accelerated interlocutory appeal. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

4 In addition to Kendall County, appellants include Christina Bergmann, Richard J. Tobolka, Chad

Carpenter, Andra M. Wisian, Richard Chapman, Shane Stolarczyk, and Mary Ellen Schulle in their official
capacities.
3
II. STANDARD OF REVIEW AND APPLICABLE LAW

“Whether governmental immunity has been waived in a given case implicates

subject-matter jurisdiction.” San Jacinto River Auth. v. City of Conroe, 688 S.W.3d 124,

130 (Tex. 2024). “[I]mmunity from suit defeats a trial court’s subject matter jurisdiction and

thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Transp. v. Jones, 8

S.W.3d 636, 639 (Tex. 1999). “A jurisdictional plea may challenge the pleadings, the

existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544

S.W.3d 755, 770 (Tex. 2018).

When a plea to the jurisdiction challenges the plaintiff’s pleadings, as is the case

here, the trial court is required to review the pleadings, construe the pleadings liberally in

favor of the plaintiff, look to the pleader’s intent, and determine whether the plaintiff “has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the plaintiff has

pleaded facts that affirmatively negate jurisdiction, the trial court may grant the

governmental unit’s plea to the jurisdiction without allowing the plaintiff an opportunity to

amend. Id. at 227. However, if the pleadings merely fail to allege facts sufficient to

affirmatively demonstrate jurisdiction, “the issue is one of pleading sufficiency and the

plaintiffs should be afforded the opportunity to amend.” Id.; see also Tex. Tech. Univ. Sys.

v. Martinez, 691 S.W.3d 415 (Tex. 2024).

In its original petition and in response to appellants’ plea to the jurisdiction,

appellee claimed the district court had jurisdiction under Article V, § 8 of the Texas

Constitution, which provides: “[T]he District Court shall have appellate jurisdiction and

general supervisory control over the County Commissioners court, with such exceptions

4
and under such regulations as may be prescribed by law.” TEX. CONST. art. V, § 8. The

enabling legislation repeats this language, see TEX. GOV’T CODE ANN. § 24.020 (“The

district court has appellate jurisdiction and general supervisory control over the

commissioners court, with the exceptions and regulations prescribed by law.”), but with a

few exceptions inapplicable here, the legislature has not specified how this jurisdiction

may be exercised or even invoked. Henry v. Sullivan, 499 S.W.3d 545, 551 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied). Consequently, “the scope of the district court’s

supervisory jurisdiction generally has been defined by case law.” Henry, 499 S.W.3d at

551.

To determine whether the trial court erred in denying appellants’ plea to the

jurisdiction, we will begin by identifying appellee’s allegations and then determine whether

the allegations are sufficient to invoke the district court’s jurisdiction over the suit as

pleaded. See Miranda, 133 S.W.3d at 226; Henry, 499 S.W.3d at 551.

III. APPELLEE’S PLEADINGS

As context for its claims, appellee stated that Waring has been a recognized town

since 1887 and had established public county roads, a volunteer fire department, a one-

room schoolhouse, and a general store. Appellee represented that Kendall County

recognized the plat because the tax assessor identifies properties in Waring pursuant to

the plat and “even identifies [Waring] as a unique subdivision.” Appellee claimed that the

Commissioners Court adopted twenty amendments to the plat thereby recognizing,

approving, and affirming its “continued existence.”

According to appellee’s petition, it submitted to Kendall County a development

application to Kendall County and sought OSSF permits for Block 19 in 2021. Originally,

5
Kendall County issued permits for half of the lots in Block 19, but appellee claimed that

Kendall County “reversed course” without citing any relevant rules, regulation,

ordinances, or law. Specifically, Kendall County informed appellee that it “would not

approve or issue any Development Permits or OSSF Permits” for Block 19 because the

lots “do not meet basic health and safety standards for well spacing and septic

placement.” As a result, appellee claimed it is now precluded from building any structures

on the property.

Appellee represented that it appealed this decision to the Commissioners Court,

requesting that it issue the requested permits for Block 19. Appellee claims to have

presented a plan showing the proposed development would meet all applicable health

and safety requirements applicable to OSSFs under the Texas Administrative Code

(TAC), which Kendall County adopted in an order in 2006 (2006 OSSF Order).5 Appellee

further claimed that Kendall County was refusing to adhere to its 2010 Development

Rules, which appellee claims exempt Waring from complying with Kendall County’s

regulations for platting and the subdivision of land. The Commissioners Court affirmed

Kendall County’s denial of the permits.

Appellee re-urged these arguments to the trial court. Appellee claimed that Rules

101.1400 and 101.15006 of the 2010 Development Rules expressly exempt “platted lots

5 The 2006 OSSF Order states:

Rules, Title 30 Texas Administrative Code . . . Chapter 285 and Chapter
30 . . . promulgated by the Texas Commission on Environmental Quality for [OSSF] are
hereby adopted, and all officials . . . of Kendall County, Texas having duties under said
Rules are authorized to perform such duties as are required of them under said Rules.

6 Kendall County’s 2010 Development Rules 101.1400 and 101.1500 provide:

101.1400 The Rules and Regulations to which a particular development must
6
in subdivisions recorded and in existence prior to” 2010, such as Waring, from complying

with development rules relating to lot size, minimum road footage, and lot setbacks. Yet,

according to appellee, appellants denied its request for permits based 2010 Development

Rules—the very same rules. Appellee further attached the 2006 OSSF Order, claiming

that Kendall County’s more stringent OSSF rules only apply to subdivisions of land

created on or after March 13, 2006.

Appellee sought a permanent injunction against appellants enjoining them from

requiring appellee to obtain a permit for development on the property, applying or

enforcing the 2010 Development Rules against appellee for construction, and enforcing

2010 Development Rule 300.1100 against appellee. Appellee requested that appellants

be compelled to issue permits for Block 19.

IV. TRIAL COURT’S JURISDICTION OVER COMMISSIONERS COURT

“The district court may exercise general supervisory control when the

commissioners court (1) fails to perform a mandatory act; (2) performs an unauthorized

act; or (3) abuses its discretion while undertaking an act it is authorized to perform.”

Henry, 499 S.W.3d at 543. First, if a commissioners court fails to perform a clear statutory

duty, the district court may mandate that it do so. See Vondy v. Comm’rs Ct. of Uvalde

comply are those in effect on the date the preliminary plat application for
the development is submitted to the County, provided the application
timely submits required documents and information in accordance with
section 206.

101.1500 The limitations and restrictions prescribed in these Rules and Regulations
concerning lot size, minimum road frontage and building set back lines
shall not apply to platted lots in subdivisions recorded and in existence
prior to the effective date of these Rules and Regulations. However, any
future alterations of the boundaries of such lots, whether through division
or combination, shall be subject to the procedures set out in these Rules
and Regulations.

7
Cnty., 620 S.W.2d 104, 108–09 (Tex. 1981) (holding that where the commissioners court

failed to comply with a state constitutional provision mandating that it compensate

constables on a salary basis, the district court should have exercised its general

supervisory jurisdiction to grant the constable’s request for mandamus relief). Second,

the district court has jurisdiction over claims alleging that a commissioners court acted

illegally or exceed its authority. Henry, 499 S.W.3d at 553; Wichita County v. Bonnin, 182

S.W.3d 415, 421 (Tex. App.—Fort Worth 2005, pet. denied) (finding the trial court had

jurisdiction over a complaint that the commissioners court failed to comply with a

mandatory duty imposed by law or committed an illegal act by refusing to implement a

petition). Third, the district court has discretion to determine whether a commissioners

court abused the discretion entrusted to it. Ector County v. Stringer, 843 S.W.2d 477, 479

(Tex. 1992) (“Once the commissioners court acts, the district court may review the

commissioners’ orders to determine if they are arbitrary, or otherwise constitute an abuse

of discretion.”). “This basis for jurisdiction can be invoked by allegations that the

commissioners court’s decision is arbitrary, capricious, or unsupported by substantial

evidence.” Henry, 499 S.W.3d at 553.

V. DISCUSSION

In its petition, appellee asserted that appellants acted ultra vires, failed to perform

a purely ministerial act, acted without authority, and exceeded the bounds of their

authority by: (1) denying appellee a development permit, (2) requiring appellee to comply

with requirements in the 2010 Development Rules when the 2010 Development Rules

and the 2006 OSSF Order exempt Waring from compliance; (3) enforcing 2010

Development Rule 300.1100.9 in contravention of Texas Local Government Code

8
§ 232.101 7 ; (4) enforcing Section 10 of the 2006 OSSF Order in contravention of

§ 232.101; (5) enforcing Kendall County rules and regulations that regulate residential

density in unincorporated areas when § 232.101 prohibits such action; and (6) requiring

a development permit when Texas Local Government Code § 233.153 8 prohibits a

county from requiring a building permit.

Appellee further alleged that the Commissioners Court failed to perform a clear

statutory duty by not adhering to the exemptions in 2010 Development Rules and 2006

OSSF Order; that appellants’ refusal to recognize the town of Waring and deny appellee

development and OSSF permits were “illegal, unreasonable, or arbitrary” actions; and

that appellants abused their discretion by attempting to enforce restrictions that the Texas

Legislature has expressly prohibited. See Comm’rs Ct. of Grayson Cnty. v. Albin, 992

S.W.2d 597, 605 (Tex. App.—Texarkana 1999, pet. denied) (“The statute does not give

the county commissioners the option of not filing the plat if the requirements of the statute

are met.).

Accepting these allegations as true, as we must, we conclude appellee’s

allegations vest supervisory jurisdiction in the trial court to review the Commissioners

Court’s decision. See Henry v. Cox, 520 S.W.3d 28, 36 (Tex. 2017). Alternatively,

appellee has raised claims alleging ultra vires actions, to which governmental immunity

does not apply. See City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566,

7 “Unless otherwise authorized by state law, a commissioners court shall not regulate under this

section . . . the number of residential units that can be built per acre of land.” TEX. LOC. GOV’T CODE ANN.
§ 232.101(4).

8 “This subchapter may not be construed to . . . require prior approval by the county before the

beginning of new residential construction.” Id. § 232.101(4).

9
576 (Tex. 2018) (“Even if a governmental entity’s immunity has not been waived by the

Legislature, a claim may be brought against a governmental official if the official engages

in ultra vires conduct [;] Plaintiffs in an ultra vires suit must allege, and ultimately prove,

that the officer acted without legal authority or failed to perform a purely ministerial act.”

(internal citations omitted)); Vondy v. Comm’rs Ct. of Uvalde Cnty., 714 S.W.2d 417, 420

(Tex. App.—San Antonio 1986, writ ref’d n.r.e.) (holding the district court’s jurisdiction

was invoked by allegations that the commissioners’ order is “arbitrary, capricious,

unsupported by substantial evidence or that the court has acted beyond its jurisdiction”).

“[I]f the commissioners court of [Kendall] County acted arbitrarily without the exercise of

any discretion or clearly abused its discretion, the district court in the exercise of powers

above enumerated could have abrogated such action.” Bomer v. Ector Cnty. Commn’rs

Ct., 676 S.W.2d 662, 665 (Tex. App.—El Paso 1984, writ ref’d n.r.e.).

In the trial court, appellants did not cite any authority divesting the trial court of its

supervisory jurisdiction pursuant to Article V, § 8. More importantly, appellants do not

address Article V, § 8 on appeal. “To obtain a reversal of a trial court’s judgment or order,

an appellant must challenge all independent bases or grounds that fully support a

judgment or appealable order.” Trevino v. City of San Antonio, 685 S.W.3d 863, 867 (Tex.

App.—San Antonio 2023, no pet.) (cleaned up). Nowhere in appellants’ brief is there any

mention of Article V, § 8 or any attempt to demonstrate why that constitutional provision

does not independently support the trial court’s order. See id. (“In the absence of a

challenge to all asserted grounds, ‘we must accept the validity of the unchallenged

independent grounds and affirm the adverse ruling.’”) (quoting In re Elamex, S.A. de C.V.,

367 S.W.3d 879, 888 (Tex. App.—El Paso 2012, orig. proceeding)).

10
Instead, appellants attempt to rebut the merits of appellee’s claims by referring to

numerous pieces of evidence they have now attached as appendices to their appellate

brief but did not present to the trial court. Appellants ask us to take judicial notice of the

documents attached as exhibits to their brief. We decline to do so. See Greystar, LLC v.

Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) (“It is well-established an

appellate court may not consider matters outside the record, which includes documents

attached to a brief as an exhibit or an appendix that were not before the trial court.”).

Whether appellee can ultimately prove appellants acted arbitrarily is irrelevant at this

stage of litigation where appellants merely challenged the sufficiency of the pleadings to

establish jurisdiction. See Miranda, 133 S.W.3d at 226; see also Hensley v. State Comm’n

on Jud. Conduct, No. 03-21-00305-CV, 2025 WL 1535272, at *8 (Tex. App.—Austin May

30, 2025, no pet. h.) (“In reviewing a plea to the jurisdiction, as we do here, we cannot

examine the merits of the case . . . . but must consider only the plaintiff’s pleadings and

evidence pertinent to the jurisdictional inquiry.”).

Construing the pleadings liberally in appellee’s favor, we conclude that appellee

affirmatively demonstrated the trial court’s subject matter jurisdiction over its claims. See

Miranda, 133 S.W.3d at 226 (providing that we need only “determine if [appellee] has

alleged facts that affirmatively demonstrate [the trial court’s] jurisdiction to hear [the merits

of] the cause”); see also Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023)

(“The rigor of proof required to satisfy a court that jurisdiction is present increases at each

stage of litigation, as with disputes over traditional subject-matter jurisdiction.”).

Accordingly, the trial court did not err when it denied appellants’ plea to the jurisdiction.

We overrule appellants’ issues.

11
VI. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA
Chief Justice

Delivered and filed on the
3rd day of July, 2025.

12