Texas Case Law

SCHECTER v. WILDWOOD DEV., 08-05-00398-CV (Tex.App. [8th
Dist.] 12-21-2006) RICHARD SCHECTER, Appellant, v. WILDWOOD
08-05-00398-CV. Court of Appeals of Texas, Eighth District,
El Paso. December 21, 2006.

Appeal from the 327th District Court of El Paso County,
Texas, (TC# 2005-7309).

Before MCCLURE, J., BARAJAS, C.J., (Ret.), and ABLES, J.

Barajas, C.J. (Ret.), sitting by assignment.

Ables, J., sitting by assignment.



Richard Schecter appeals an order granting pleas to the
jurisdiction filed by Wildwood Developers, L.L.C.
(Wildwood), the City of El Paso (the City), and the City
Plan Commission and its Commissioners (the Commission). We


Schecter’s home is located in west El Paso within 300 feet
of Wildwood Arroyo which is owned by Wildwood Developers.
In November 2004, the Commission approved the subdivision
plat filed by Wildwood for development of the arroyo and
the city engineer approved the subdivision improvement
plans. Before development began, Schecter filed suit
against the City and the Commission in an effort to halt
the project. He specifically sought a declaratory judgment
that (1) the Commission’s approval of the subdivision
violates Section 19.16.050 of the Municipal Code (requiring
that arroyos be preserved in their natural state); (2) the
subdivision application is void because it does not meet the
City’s design criteria; and (3) the Commission’s approval
of the subdivision application is void because it was based
on Wildwood’s fraudulent and false statements. Schecter
also sought mandamus and injunctive relief.[fn1]

Wildwood intervened and filed a plea to the jurisdiction,
complaining that Schecter lacked standing to maintain his
suit. The City and the Commission filed a plea to the
jurisdiction based upon the same argument. They also
claimed sovereign immunity. Following a hearing, the trial
court specifically found that Schecter lacked standing and
granted the pleas. Schecter timely filed a notice of
appeal. We granted emergency relief to prohibit any grading
or alteration of the arroyo, but we lifted the stay when
Schecter failed to post the required security. Development
of the arroyo began shortly after the stay was lifted.


In Issue One, Schecter challenges the trial court’s
conclusion that he lacks standing to seek a declaratory
judgment. He has not raised any issue regarding the trial
court’s determination that he lacks standing to seek
injunctive or mandamus relief. Consequently, those aspects
of the trial court’s ruling are not before us.


The City, the Commission, and Wildwood all contend that the
appeal is moot because development of the Arroyo has been
proceeding since the stay order was lifted. For a plaintiff
to have standing, a controversy must exist between the
parties at every stage of the legal proceedings, including
the appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
2000). If a controversy ceases to exist because the issues
presented are no longer live or because the parties lack a
legally cognizable interest in the outcome, the case
becomes moot. Id. If a case becomes moot, the parties lose
standing to maintain their claims. Id. When a request for
injunctive relief becomes moot because the action sought to
be enjoined has been accomplished, a request for
declaratory relief also becomes moot. Speer v. Presbyterian
Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex.

By his suit, Schecter sought to halt the planned alteration
of the arroyo’s natural condition because he it would
purportedly cause his property value to decrease. Although
he could have maintained the status quo by posting the
required security, he failed to do so and the development
has progressed during the pendency of his appeal. While the
parties disagree as to the extent of the development, it is
undisputed that the natural condition of the arroyo has
been significantly altered through grading and removal of
all vegetation. A judicial declaration that the
Commission’s approval of the subdivision violated the
Municipal Code would not resolve the controversy between
the parties because the arroyo has already been altered
from its natural state.

Schecter nevertheless maintains that the appeal is not moot
because his suit is not limited to preventing changes to
the arroyo’s natural state. In support of this argument, he
reminds us that he also sought a judicial declaration that
Wildwood’s subdivision application is void because it does
not meet the City’s design criteria and that the
Commission’s approval of the application is void because it
was based on fraudulent and false statements. Because there
is nothing in the record to indicate that the subdivision
has been completed to the point that these two issues are
moot, we will address the merits of the trial court’s
ruling as it pertains to these issues.

Standard of Review

A plea to the jurisdiction contests a trial court’s subject
matter jurisdiction. Bland Independent School District v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the trial
court’s ruling de novo. Texas Department of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The
plaintiff bears the burden of pleading facts demonstrating
subject matter jurisdiction. We examine a plaintiff’s good
faith factual allegations to determine whether the trial
court has jurisdiction. Texas Department of Criminal
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The
issues raised in a plea determine the scope of our focus.
We may look beyond the pleadings and may be required to do
so when necessary to resolve the jurisdictional issues
raised. Bland, 34 S.W.3d at 555; Hardin County Community
Supervision and Corrections Dept. v. Sullivan, 106 S.W.3d
186, 189 (Tex.App.-Austin 2003, pet. denied). Unless there
is fraudulent pleading to confer jurisdiction or the
petition on its face affirmatively demonstrates a lack of
jurisdiction, the trial court must liberally construe the
plaintiff’s allegations in favor of jurisdiction. Sullivan,
106 S.W.3d at 189.


Standing is a component of subject matter jurisdiction and
is properly raised by a plea to the jurisdiction. Texas
Association of Business v. Texas Air Control Board, 852
S.W.2d 440, 443 (Tex. 1993). As a general rule, standing
consists of some interest peculiar to the plaintiff
individually rather than as a member of the public. Hunt v.
Bass, 664 S.W.2d 323, 324 (Tex. 1984). To establish common
law standing, a plaintiff must show a distinct injury to
the plaintiff and a real controversy between the parties,
which will be actually determined by the judicial
declaration sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.
2001). This general rule applies unless standing has been
statutorily conferred upon the plaintiff. Williams, 52
S.W.3d at 178; El Paso County Hosp. Dist. v. Gilbert, 64
S.W.3d 200, 202 (Tex.App.-El Paso 2001, pet. denied). When
standing has been statutorily conferred, the statute itself
serves as the proper framework for analysis.
DaimlerChrysler Corp. v. Inman, 121 S.W.3d 862, 869
(Tex.App.-Corpus Christi 2003, pet. granted). If a statute
provides that any citizen or taxpayer may bring an action,
the plaintiff need only establish that he or she falls
within one of these categories to establish standing; it is
not necessary to establish an interest peculiar to the
plaintiff. Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56-57
(Tex. 1966).

The purpose of the Uniform Declaratory Judgment Act is to
settle and afford relief from uncertainty and insecurity
with respect to rights, status, and other legal relations.
TEX.CIV.PRAC. & REM. CODE ANN. § 37.002 (Vernon
1997). The Act does not confer jurisdiction on the trial
court; it offers the remedy of a declaratory judgment for a
cause of action already within the court’s jurisdiction.
State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994). A
declaratory judgment is appropriate only if a justiciable
controversy exists as to the rights and status of the
parties and the controversy will be resolved by the
declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d
465, 467 (Tex. 1995). Texas courts do not have the
authority to render judgments that merely constitute
advisory opinions. Patterson v. Planned Parenthood of
Houston and Southeast Texas, Inc., 971 S.W.2d 439, 443
(Tex. 1998). An opinion is advisory when the judgment
sought would not constitute specific relief to a litigant
or affect legal relations. Brinkley v. Texas Lottery
Comm’n, 986 S.W.2d 764, 767 (Tex.App.-Austin 1999, no
pet.). Section 37.004 of the Declaratory Judgment Act
provides that:

A person interested under a deed, will, written contract,
or other writings constituting a contract or 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).

Schechter sought a declaratory judgment that (1) the
subdivision application is void because it does not meet
the City’s design criteria; and (2) the Commission’s
approval of the subdivision application is void because it
was based on Wildwood Developers’ fraudulent and false
statements. Neither of these claims is based upon or related
to Schecter’s rights, status, or legal relationship under a
statute, municipal ordinance, contract or franchise.
Consequently, he lacks standing to seek these declarations.
We overrule Issue One. Because the trial court correctly
granted the pleas on that basis, we need not address his
second issue pertaining to sovereign immunity. We affirm
the trial court’s order dismissing Schecter’s suit.

[fn1] With respect to his request for mandamus relief,
Schecter asked that the trial court order the City and
City-Plan Commission to revoke the approval of the
subdivision application. Schecter also sought to enjoin the
City and City-Plan Commission from approving subdivision
plats or detailed site development plans and from issuing
grading permits for any arroyo located in El Paso because
such actions would “cause the natural state of arroyos to
be wrongly and irreparably altered”.