NUMBER 13-08-00582-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CITY OF ALTON,                                                                         Appellant,

v.

CITY OF MISSION,                                                                       Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Garza, and Benavides

Memorandum Opinion by Justice YañezBy a single issue, appellant, the City of Alton (“Alton”), contends the trial court erred in issuing a writ of mandamus directing it to satisfy a $60,000 judgment in favor of appellee, the City of Mission (“Mission”). We affirm.

I. Background

          In 2003, in a declaratory judgment action between Mission and Alton concerning extra-territorial jurisdiction, the trial court granted summary judgment and awarded attorneys’ fees in favor of Mission. In 2005, this Court affirmed the judgment, and the supreme court denied review.

          On June 8, 2008, Mission filed a petition for writ of mandamus with the trial court requesting that the court direct Alton to pay the $60,000 judgment awarding attorneys’ fees to Mission. Alton filed a response to Mission’s petition; the parties filed several more “replies” and “responses.” On August 11, 2008, the trial court held a hearing on Mission’s petition. On August 18, 2008, the trial court issued an order granting Mission’s petition for writ of mandamus and issuing the writ. The writ, directed to the Mayor and City Commissioners of Alton, stated:

          WHEREAS, on May 1, 2003, in the 206th District Court of Hidalgo County, in Cause No. C-1131-01-D, City of Mission v. City of Alton, the Court rendered judgment in favor of Mission against Alton which included an award of $60,000 (hereinafter the “Judgment”);

          WHEREAS, Alton has the legal duty to satisfy the Judgment, Mission has made written demand on Alton to satisfy the Judgment, and Alton has neglected or refused to satisfy the Judgment;

          WHEREAS, the Judgment amount is fixed and certain; and Mission has no adequate remedy at law in collecting the Judgment;

          THEREFORE, the City of Alton and its officers, Salvador Vela, Ricardo Garza, Richard Alevalo, Emilio Cantu, Jr., Arturo Galvan and Hilario Rincones, are HEREBY MANDATED to raise revenue to satisfy the Judgment, including but not limited to, (1) using any current and future tax year surplus revenue or revenue allocated for miscellaneous or contingency expenses to satisfy the Judgment and (2) levying and collecting additional taxes in future tax years, to the full extent of Alton’s taxing power in order to satisfy the Judgment.

          This appeal followed.

II. Applicable Law

          Mandamus is the proper remedy by which a judgment can be enforced against a political subdivision of the state. Through mandamus, a political subdivision can be directed to levy and to collect sufficient taxes to satisfy judgments outstanding against the entity when there are not sufficient funds on hand.

III. Discussion

          Alton argues that it did not agree to pay attorneys’ fees in the underlying action and “therefore, there was no implicit waiver of governmental immunity for involuntary payment of attorney’s fees arising out of the Declaratory Judgment action.” We find Alton’s argument unpersuasive. As the supreme court has stated,

Sovereign immunity refers to the State’s immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.[ ]

“Governmental immunity, like the doctrine of sovereign immunity to which it is appurtenant, involves two issues: whether the State has consented to suit and whether the State has accepted liability.” “Immunity from suit is jurisdictional and bars suit; immunity from liability is not jurisdictional and protects from judgments.”

          In the present case, Alton appears to argue that it is immune from suit. Alton argues that this case is similar to City of Galveston v. State of Texas, in which the supreme court held that cities are immune from suits filed on behalf of the State by the Attorney General to recover money damages. We find City of Galveston to be inapposite; here, the underlying suit does not involve the recovery of money damages.

          The Texas Supreme Court has noted that certain declaratory judgment actions do not implicate the doctrine of governmental immunity. An action for declaratory judgment seeking only a clarification of rights, attorney’s fees, and costs—as here, in the underlying action—is not a suit for damages against the State and is not barred by governmental immunity.

          We do not construe Alton’s argument as asserting immunity to liability. Insofar as Alton attempted to raise such an issue, we conclude that the issue was inadequately briefed and was therefore waived.

IV. Conclusion

          We overrule Alton’s issue and affirm the trial court’s judgment.

                                                                                         LINDA REYNA YAÑEZ,

                                                                                         Justice

Delivered and filed the

14th day of October, 2010.