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NO. 07-06-0421-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 29, 2007

______________________________

LARRY ACKERS, APPELLANT

V.

CITY OF LUBBOCK, APPELLEE

_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK
COUNTY;

NO. 2006-533,594; HONORABLE RUBEN REYES, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Appellant, Larry Ackers, appeals the
trial court's judgment granting appellee's, the City of Lubbock, Plea to
the Jurisdiction and dismissing his claims with prejudice. We reverse the
judgment and remand the case to the trial court.

Background

According to Ackers's live
pleadings,
(1) on April 23, 2005, Ackers learned that a youth basketball
game was being played in the gymnasium at his church. At that time, Ackers
was enrolled in a photography class at Texas Tech University and had a
pending assignment to photograph an entertainment event. To complete the
assignment, Ackers attended the game and took pictures of the participants
and attendees. Two of the game's attendees confronted Ackers about his
photographing the children. Ackers explained why he was taking the
pictures, but the attendees called the Lubbock Police Department to report
Ackers's activities anyway.

In response to this call, Lubbock
Police Department (LPD) Officer Scott O'Neil was dispatched to investigate
a suspicious person taking photographs of everyone's children at a
basketball game. Following his arrival at the game, O'Neil seized Ackers's
film. O'Neil completed an incident report and the incident was referred to
the Juvenile Crimes, Investigative Division.

On May 11, 2005, Ackers went to the
police station and met with Assistant Chief of the LPD, Thomas Esparza.
Esparza informed Ackers that the investigation would likely be closed, but
that the information gathered would remain in the police data system.
Lieutenant Jeremy Brewer of the Juvenile Crimes, Investigative Division,
was called into Ackers's meeting with Esparza. Brewer told Ackers that he
had to have permission before he could take pictures of the children.
Brewer's statement was made as an affirmative statement of LPD policy.

On May 17, 2005, Detective Rosanna
Langston called Ackers and notified him that the parents are finally
satisfied, that he should have obtained permission before taking the
photos, and that his name will remain on file as an involved party in this
incident and would "show up" if Ackers was stopped for a traffic violation
in the future. Ackers was never charged with a crime as a result of his
photographing the basketball game.

In response to the events described
above, Ackers filed suit against the City of Lubbock requesting 23
declarations, including a declaration that LPD's photography policy is
unconstitutional; equitable relief, including a permanent injunction; and
costs and expenses, including attorney's fees. The City filed a Plea to
the Jurisdiction asserting that it was immune from this suit based on its
governmental immunity. The trial court held a hearing on the City's plea
where it heard the arguments of both parties on the jurisdictional issue.
Following the hearing, the trial court signed a judgment sustaining the
City's plea and dismissing Ackers's claims. Ackers requested findings of
fact and conclusions of law and the trial court made findings and
conclusions.

By four issues, Ackers appeals. By his
first issue, Ackers contends that the trial court erred in sustaining the
City's plea to the jurisdiction. By his second issue, Ackers contends that
any evidence considered by the trial court was not disclosed to Ackers. By
his third issue, Ackers contends that the trial court's findings of fact
and conclusions of law are immaterial to the jurisdictional issue.
Finally, by his fourth issue, Ackers contends that there is no evidence to
support the trial court's judgment. We will address only Ackers's first
and third issues, as they are the only issues necessary to final
disposition of this appeal. See Tex. R. App. P.
47.1.

Plea to the
Jurisdiction

By his first issue, Ackers contends
that the trial court erred in sustaining the City's Plea to the
Jurisdiction as to his claims for declaratory relief, for injunctive
relief, and of a taking under article 1, section 17, of the Texas
Constitution.

Subject-matter jurisdiction is
essential to the authority of a court to decide a case. See Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 443 (Tex.1993). A challenge to whether a court
has subject matter jurisdiction may be raised by a plea to the
jurisdiction. Bland Indep. Sch.
Dist., 34 S.W.3d at 554. Whether a court has subject matter
jurisdiction over a case is a legal question and, therefore, we review a
trial court's ruling on a plea to the jurisdiction under a de
novo standard of review. Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998).

A plea to the jurisdiction is a
dilatory plea, the purpose of which is to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist., 34
S.W.3d at 554. The purpose of a dilatory plea is not to force the
plaintiff to preview their case on the merits, but to establish a reason
why the merits of the case should not be reached. Id. As such, we review a ruling
on a plea to the jurisdiction by first examining the claims in the
plaintiff's pleadings, taking the facts pled therein as true, to determine
whether those facts support the trial court's jurisdiction. Nueces County, 97 S.W.3d at 213.
However, we may also consider evidence submitted that is relevant to the
jurisdictional issue and we must consider this evidence when it is
necessary to resolve the issue of jurisdiction. Bland Indep. Sch. Dist., 34
S.W.3d at 555.

When looking at the plaintiff's
pleadings, we must construe the pleadings in the plaintiff's favor and
look to the pleader's intent. Nueces County, 97 S.W.3d at 213.
The plaintiff bears the burden to allege facts affirmatively demonstrating
the trial court's jurisdiction to hear the case. Id. If a plaintiff pleads facts
that affirmatively demonstrate the absence of jurisdiction and the defect
is incurable, then the case is properly dismissed. Id. However, if the plaintiff's
pleadings do not demonstrate the trial court's jurisdiction, but are not
affirmatively incurable, the proper remedy is to allow the plaintiff an
opportunity to amend the pleadings before dismissal. Id. See also County of Cameron v. Brown, 80
S.W.3d 549, 555 (Tex. 2002); Peek
v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989).

In the present case, the City, by its
plea to the jurisdiction, alleged that Ackers's claims were barred by the
doctrine of governmental immunity. Governmental immunity protects
governmental entities from lawsuits for damages absent legislative
consent. Nueces County, 97
S.W.3d at 216-17. There are, however, certain exceptions to governmental
immunity. Governmental immunity may be waived by express legislative
permission, such as a resolution granting permission for a person to file
suit, or by a statutory waiver. Id. at 217. Certain provisions
of the Texas Constitution are self-enacting and provide the right to bring
suit against a governmental entity for violations of the provision without
the need for legislative consent. Id. Actions that seek to settle
uncertainty and insecurity with respect to rights, status, or other legal
relations or that seek a declaration that officials acted without legal
authority or acted in accordance with an unconstitutional law do not
require consent, provided that these suits do not seek money damages.
Id. at 217-18. A plaintiff
filing suit against a governmental entity must assert claims for which
immunity has been waived and facts that fall within the scope of that
waiver. See Tex. Dep't of Crim. Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001); Nueces County, 97 S.W.3d at
217.

In the present case, Ackers asserted
claims for declaratory relief, injunctive relief, and equitable relief to
compensate him for the taking of his film. As no evidence was offered that
would be necessary to the jurisdictional issue, we will confine our review
to Ackers's pleadings, construing those pleadings in Ackers's favor and
looking to his intent. Nueces
County, 97 S.W.3d at 213. Because we conclude that the trial court
had subject matter jurisdiction over at least one claim asserted by
Ackers, we will limit our review to this claim. See Tex. R. App. P.
47.1.

Ackers's Claim for
Declaratory Relief

Ackers requested 23 declarations from
the trial court. The primary declaration sought was that any policy or
procedure of the City that was used to justify any unlawful action taken
against Ackers be found to be unconstitutional and declared void as a
matter of law. Many of Ackers's requests for declarations seek
declarations that the City committed acts that would make it liable under
a number of different causes of action. However, Ackers does not
specifically request monetary relief for any of these causes of
action.

As previously mentioned, no consent or
waiver of governmental immunity is required when a suit seeks only a
declaration or enforcement of rights. Tex. Natural Res. Conservation Comm'n
v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A suit under the
Uniform Declaratory Judgment Act or a suit alleging ultra vires
acts falls within this exception. Nueces County, 97 S.W.3d at
217-18. The reason that these suits do not require consent or waiver of
immunity is because they do not seek to subject the governmental entity to
liability. Tex. Natural Res.
Conservation Comm'n, 74 S.W.3d at 855. However, when a party brings
a suit ostensibly to determine or protect rights but seeks monetary
damages, governmental immunity bars the suit. Id. at 856; Nueces County, 97 S.W.3d at 218.

In the present case, Ackers pled that
the City, through its police department, has a policy requiring that
parental permission be obtained before photographs of minors may be
taken.
(2) As the City presented no evidence to controvert this
allegation, we must accept the existence of such a policy as true. See Bland Indep. Sch. Dist., 34
S.W.3d at 555; Nueces
County, 97 S.W.3d at 213. The Uniform Declaratory Judgment Act
provides, in part, that,

A person . . . whose rights, status,
or other legal relations are affected by a statute, municipal ordinance,
contract, or franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder.

Tex. Civ. Prac. & Rem. Code Ann. §
37.004(a) (Vernon Supp. 2007). The City contends that, because Ackers's
claim challenges the validity of a policy rather than of an instrument,
statute, ordinance, contract, or franchise, the Uniform Declaratory
Judgment Act does not remove governmental immunity for Ackers's primary
claim for declaratory relief and, therefore, it is barred by governmental
immunity.

While Ackers's challenge of the
constitutionality of the City's policy is not specifically identified in
section 37.004(a), we conclude that the failure of the section to
specifically list a city's policy as being capable of challenge by
declaratory action does not mean that such an action is barred by
governmental immunity. First, section 37.003(c) provides that the
enumerations in Section 37.004 "do not limit or restrict the exercise of
the general powers conferred by this section in any proceeding in which
declaratory relief is sought and a judgment or decree will terminate the
controversy or remove an uncertainty." Tex. Civ. Prac. & Rem. Code
Ann. § 37.003(c) (Vernon 1997). We conclude that the primary declaration
sought by Ackers in the present case will remove uncertainty regarding
rights and will resolve the controversy regarding whether the City's
policy is valid. Further, because Ackers is not requesting monetary
damages, but rather is seeking a declaration that the City's policy is
unconstitutional, he does not need an express statutory waiver of
governmental immunity to seek declaratory relief. See Tex. Natural Res. Conservation
Comm'n, 74 S.W.3d at 855. As a result, we conclude that Ackers's
request for a declaration that any policy or procedure of the City that
was used to justify any unlawful action taken against Ackers be found to
be unconstitutional and declared void as a matter of law falls within the
scope of the Uniform Declaratory Judgment Act. However, because this
request for declaratory relief does not seek to impose liability on the
City, an express statutory waiver of governmental immunity is not required
for the trial court's exercise of subject matter jurisdiction.

The City argues that Ackers's
Discovery Control Plan allegation that the suit involves a defendant who
is likely to be liable in an amount in excess of $50,000 establishes that
his claims are actually claims for monetary damages and are, therefore,
barred by the doctrine of governmental immunity. However, in his live
pleading, Ackers makes a claim that would entitle him to monetary damages.
The Texas Constitution permits a party to seek equitable relief in the
form of adequate compensation for a governmental taking of their property.
See Tex. Const. art. I,
sec. 17; City of Beaumont v.
Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). Because Ackers's live
pleading includes a taking claim, for which monetary damages may be
awarded, we do not construe his primary request for declaratory judgment
to be a veiled claim for monetary damages.

However, even were we to construe
Ackers's primary request for declaratory relief to request monetary
damages, the trial court should not have dismissed his case without first
giving Ackers an opportunity to amend his pleadings. See Fryman v. Wilbarger Gen. Hosp.,
207 S.W.3d 440, 442 (Tex.App.-Amarillo 2006, no pet. h.). The record does
not reflect that Ackers was afforded an opportunity to amend his pleadings
before the trial court dismissed his case with prejudice. Thus, even if
the construction of Ackers's pleading that is advanced by the City were
accepted, Ackers could amend his pleading to remove the assertion that the
defendant will likely be liable in excess of $50,000 from his
identification of the Discovery Control Plan.

Findings of Fact and
Conclusions of Law

By his third issue, Ackers contends
that the trial court's findings of fact and conclusions of law relate
solely to the merits of the suit and, therefore, are immaterial to a
determination of whether the trial court has subject matter jurisdiction
over Ackers's suit. The trial court made factual findings that the LPD
officers involved in this matter "were acting within the scope of their
official duties as city police officers during the investigation" and that
the actions of the officers were "proper and lawful as a response to keep
the peace." The trial court made conclusions of law that the City "is
immune from liability" in this case, the City is "immune from liability
for the actions of its peace officers" in this case, and Ackers
"demonstrated no waiver" of the City's immunity.

Based on the scope of our review of a
ruling on a plea to the jurisdiction, we conclude that the trial court's
findings of fact are not supported by evidence or Ackers's pleading and
relate to the merits of the case rather than to the trial court's
authority to hear the case. The scope of our review of a ruling on a plea
to the jurisdiction is limited to the claims in the plaintiff's pleadings,
taking the facts pled therein as true, to determine whether those facts
support the trial court's jurisdiction. Nueces County, 97 S.W.3d at 213.
Evidence submitted that is necessary to resolve the issue of jurisdiction
must also be considered. Bland
Indep. Sch. Dist., 34 S.W.3d at 555. In the present case, no
evidence necessary to resolution of the jurisdictional issue was
submitted. Thus, our review of the jurisdictional issue is limited to the
allegations made in Ackers's live pleading. Nowhere does Ackers allege
facts that would support the trial court's factual findings that the LPD
officers were acting within the scope of their official duties during the
investigation of the present matter. Further, Ackers makes no allegation
that the reason that the officers became involved in this matter was
because they received a "request to keep the peace." Consequently, we see
no support in the record before us for either of the trial court's
findings of fact. Further, we note that the trial court's findings go to
the merits of Ackers's claims and are, therefore, immaterial to a ruling
on a plea to the jurisdiction. Bland Indep. Sch. Dist., 34
S.W.3d at 554.

As to the trial court's conclusions of
law, each is subject to de novo review by this court. Mayhew, 964 S.W.2d at 928. As
addressed in regard to Ackers's first issue, Ackers may bring certain
declaratory judgment actions against a governmental entity without express
legislative consent or statutory waiver of immunity. Nueces County, 97 S.W.3d at
217-18. Because Ackers pled a claim for declaratory judgment that we
construe as not requesting monetary damages, the City is not immune from
the suit and the trial court's dismissal was in error.
(3)

Conclusion

For the foregoing reasons, we reverse
the trial court's judgment and remand for further proceedings consistent
with this opinion.

Mackey K. Hancock

Justice

1. In review of a trial court's ruling on a plea to
the jurisdiction, we must take all factual allegations pled as true,
unless jurisdictionally relevant evidence was offered that negates
jurisdiction. Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Nueces County v. Ferguson, 97
S.W.3d 205, 213 (Tex.App.-Corpus Christi 2002, no pet.). All facts recited
in this opinion are from Ackers's live pleading unless otherwise noted.

2. We note that Texas Penal Code section 21.15 makes
it an offense to photograph another without the person's consent and with
intent to arouse or gratify the sexual desire of any person. See Tex. Pen. Code Ann. §
21.15(b) (Vernon Supp. 2007). The City's policy, as alleged by Ackers,
removes the mens rea element of this offense. Thus, Ackers's
pleading is not challenging the validity of section 21.15 nor is the
City's policy authorized by this section.

3. We note that the trial court's conclusions of law
specifically reference the City's immunity from liability. For a
declaratory judgment action to avoid the bar of governmental immunity, it
may not seek monetary damages. Tex. Natural Res. Conservation
Comm'n, 74 S.W.3d at 855; Nueces County, 97 S.W.3d at 218.
As a result, our analysis of Ackers's primary declaratory judgment claim
establishes only that the City is not immune from suit and does not negate
the court's conclusion that the City is immune from liability. However,
Ackers's claim for adequate compensation for a governmental taking does
implicate the court's conclusions.