Opinion
NUMBER 13-19-00304-CV
02-11-2021
THE PORT OF CORPUS CHRISTI, LP AND 361 HOLDINGS, LLC, Appellants, v. PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS AND SEAN STRAWBRIDGE, IN HIS CAPACITY AS CHIEF EXECUTIVE OFFICER, Appellees.
On appeal from the 156th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellants Port of Corpus Christi, LP and 361 Holdings, LLC (collectively, 361 Holdings) appeal from a plea to the jurisdiction granted in favor of appellees Port of Corpus Christi Authority of Nueces County, Texas (Port Authority) and Sean Strawbridge in his official capacity as the Port Authority's chief executive officer. By what we construe as three issues, appellants argue that dismissal was improper because: (1) evidence submitted by appellees to rebut the existence of jurisdictional facts was inadmissible; (2) even if that evidence was admissible, appellants raised a genuine issue of material fact on each element of their takings claim; and (3) appellants raised viable ultra vires claims. We affirm in part and reverse and remand in part.
I. BACKGROUND
The Port Authority is a political subdivision of the State of Texas operating as a navigation district. In 1989, the Port Authority conveyed to the United States Navy a 336-acre tract in San Patricio County near the La Quinta Ship Channel in Corpus Christi Bay. The Navy acquired the property to support its dredging activities in the area and, after obtaining the necessary permit from the United States Army Corps of Engineers (USACE), used the site as an upland dredge material placement area (DMPA). A DMPA is a federally authorized disposal site for dredged material.
In 2008, after the closure of Naval Station Ingleside, the property reverted to the Port Authority and is now commonly known as the Good Hope DMPA. 361 Holdings subsequently acquired an interest in two adjacent tracts of land formerly used by ExxonMobil for oil and gas refining and related storage operations (the Exxon Tracts). The North Exxon Tract is east of Cell J and the South Exxon Tract is east of Cell I in this satellite image:
Image materials not available for display.
On June 19, 2018, the Port Authority engaged an engineering firm to design "improvements to the Good Hope DMPA to create approximately 1,000,000 to 2,000,000 cubic yards of additional dredge material capacity." The necessary design features included "increasing the levee height of Good Hope DMPA, Cell I, and Cell J, and any required training levee, spillway, and effluent pipe improvements to ensure Good Hope DMPA is in condition to receive dredge material."
Soon after public notice of the improvement project, 361 Holdings filed suit against the Port Authority alleging that prior use of the Good Hope DMPA had caused contamination on their property. 361 Holdings alleged that the Port Authority's conduct and the resulting damage constituted a nonnegligent nuisance rising to the level of a constitutional taking. They also brought ultra vires claims against Strawbridge in his official capacity for alleged violations of environmental regulations and sought to enjoin the improvement project and future use of the Good Hope DMPA.
The Port Authority and Strawbridge filed a plea to the jurisdiction asserting governmental immunity and challenging the existence of jurisdictional facts. The trial court granted the plea and dismissed the claims with prejudice. This appeal ensued.
II. STANDARD OF REVIEW & APPLICABLE LAW
Unless waived, governmental immunity protects the political subdivisions of the State from lawsuits for money damages. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). Immunity from suit deprives a trial court of subject matter jurisdiction. Id. (citing Tex. Dep't & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)).
A plea to the jurisdiction is a procedural vehicle to challenge the trial court's subject matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The existence of subject matter jurisdiction is a question of law that we review de novo. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When a plea to the jurisdiction "'challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,' even where those facts may implicate the merits of the cause of action." City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (quoting Miranda, 133 S.W.3d at 227). If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder; however, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228.
Under Article 1, section 17 of the Texas Constitution, the government may not intentionally damage a person's property for public use without adequate compensation. TEX. CONST. art. I, § 7. A governmental entity "may be held liable for a nuisance that rises to the level of a constitutional taking." City of Dallas v. Jennings, 142 S.W.3d 310, 316 (Tex. 2004) (citing City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex. 1963)).
The negligent destruction of property does not constitute a taking. City of San Antonio v. Pollock, 284 S.W.3d 809, 820 (Tex. 2009); Jennings, 142 S.W.3d at 313. Instead, the governmental entity must act intentionally. Pollock, 284 S.W.3d at 820. A governmental entity acts intentionally if it knows either (1) that a specific act was causing identifiable harm, or (2) that the specific damage was substantially certain to result from the act. Id. at 821 (citing Jennings, 142 S.W.3d at 314). "A governmental entity is substantially certain that its actions will damage property only when the damage is 'necessarily an incident to, or necessarily a consequential result of the [entity's] action.'" Id. (quoting Jennings, 142 S.W.3d at 314) (alteration in original). We determine the government's knowledge at the time it acted. Id. (citing Jennings, 142 S.W.3d at 315).
"[I]n certain narrow instances, a suit against a [government] official can proceed even in the absence of a waiver of immunity if the official's actions are ultra vires." Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017). "To fall within this ultra vires exception, a suit must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). An ultra vires claim should be brought against the government actors in their official capacity. Id. at 373.
III. EVIDENTIARY OBJECTIONS
To rebut the intent element of 361 Holdings' takings claim, the Port Authority offered the affidavits of Strawbridge and its director of engineering, David L. Krams. By their first issue, 361 Holdings contend that these affidavits (1) contain hearsay, (2) constitute unqualified expert opinion testimony that is conclusory in nature, and (3) are legally insufficient because they are based on the affiants' "beliefs" rather than personal knowledge. 361 Holdings characterize these affidavits as the Port Authority's only evidence and argue that without their admission, the Port Authority failed to place the existence of jurisdictional facts at issue. The Port Authority responds that 361 Holdings did not preserve this issue because they failed to obtain a ruling from the trial court on their objections or object to the trial court's failure to rule. See TEX. R. APP. P. 33.1. 361 Holdings reply that their objections go to the substance of the affidavits and therefore may be raised for the first time on appeal.
Objections to the form of an affidavit must be preserved in the trial court; objections to the substance of an affidavit may be raised for the first time on appeal. Grace Int., LLC v. Wallis State Bank, 431 S.W.3d 110, 124-25 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex. App.—Corpus Christi-Edinburg 1990, no writ). A hearsay objection is an objection to the form of the affidavit. Hicks v. Group & Pension Adm'rs, Inc., 473 S.W.3d 518, 535 (Tex. App.—Corpus Christi-Edinburg 2015, no pet.) (citing Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.)). As 361 Holdings implicitly acknowledge, there is no record of the trial court ruling on their objections. Accordingly, they waived their hearsay objection, and we overrule this sub-issue. See id. (citing Stone, 334 S.W.3d at 374).
An objection that an expert's affidavit is conclusory goes to the substance of the affidavit and therefore may be raised for the first time on appeal. Frank v. Roades, 310 S.W.3d 615, 623 (Tex. App.—Corpus Christi-Edinburg 2010, no pet.). 361 Holdings argue that even though "Krams and Strawbridge only testified as fact witnesses in their respective affidavits[,] . . . they purported to offer opinions regarding the migration of dredge waste onto other properties." 361 Holdings contend the affiants were unqualified to offer these opinions and failed to provide the basis for such opinions, citing to paragraphs five through nine of Krams's affidavit to support their contention (paragraph four is included for context):
We focus on Krams's affidavit because the two affidavits are repetitive.
4. As Director of Engineering, I am familiar with the dredge material placement actions that have occurred at the Good Hope DMPA since the [Port Authority] reacquired the Good Hope DMPA property from the Navy in 2008. Since [the Port Authority] reacquired the property, there have only been four dredge material placement actions at the Good Hope DMPA which occurred between late 2014 and early 2018. Two of the dredge material placement actions were conducted by Kiewit Offshore Services (Kiewit), one dredge material placement action was conducted by Oxy Ingleside Energy Center (OIEC), and one was conducted by Occidental Chemical Company (Occidental Chemical).
5. Prior to each of the dredge material placement actions at the Good Hope DMPA referenced in paragraph 4 above, [the Port Authority] followed its standard process for allowing placement of dredge materials within the Good Hope DMPA. As part of the [Port Authority's] standard process, [the Port Authority] required Kiewit, OIEC and Occidental Chemical to possess current permits issued by the U.S. Army Corps of Engineers (USACE) for dredging material and placing their dredge material at the Good Hope DMPA, provide engineered drawings, and provide sediment quality analyses of the dredge material being proposed to be placed within the Good Hope DMPA.
6. At the time of the four dredge material placement actions referenced in paragraph 4 above, I believed that the placement of the dredge material posed no threat of contamination to the Good Hope DMPA property, or negative impacts on any of the properties adjacent to the Good Hope DMPA property, or to Corpus Christi Bay.
7. Since and during the time of each of the four dredge material placement actions referenced in paragraph 4 above until the filing of this lawsuit on January 15, 2019, I received no information from USACE, Texas Commission on Environmental Quality (TCEQ), any other governmental authority, or third-party stating that the placement of additional dredge material posed a threat of contamination to the Good Hope DMPA property, any of the properties adjacent to the Good Hope DMPA, or to Corpus Christi Bay.
8. At the time of the four dredge material placement actions referenced in paragraph 4 above, dredge material was placed into the intended DMPA and, as allowed by the USACE permits, water and suspended solids were transported through the DMPA outfall structures and drainage ditches to the shoreline of Corpus Christi Bay. I have no personal knowledge of migration of dredge materials from the Good Hope DMPA property to any other adjacent properties. I am not aware of any other [Port Authority] employee having received information about the alleged migration of dredge materials, other than what I described earlier in this paragraph, from the Good Hope DMPA to other adjacent properties prior to this suit being filed.
9. Since and during the time of each of the four dredge material placement actions referenced in paragraph 4 above, I received no information from USACE, TCEQ, or any other governmental authority stating that there has been migration of dredge materials from the Good Hope DMPA property to any adjacent properties.
We cannot find an opinion in this testimony, and 361 Holdings have not pointed us to any specific statement or explained how such statement constitutes an expert opinion. Krams's testimony can be summarized by one sentence: "I have no personal knowledge of migration of dredge materials from the Good Hope DMPA property to any other adjacent property." This evidence was offered to rebut 361 Holdings' allegation that the Port Authority was substantially certain that placing dredge spoils at the Good Hope DMPA would damage the Exxon Tracts. See Pollock, 284 S.W.3d at 821. A witness's testimony about his own intention or state of mind, as opposed to another's state of mind, is not opinion testimony. Arnold v. State, 853 S.W.2d 543, 547 (Tex. Crim. App. 1993). We overrule this sub-issue.
361 Holdings also complain that Krams's statement that he "believed that the placement of the dredge material posed no threat of contamination" was legally insufficient because it was not based on personal knowledge. Seizing on the word "believed," appellants cite Kerlin v. Aria for the proposition that "[a]n affiant's belief about the facts is legally insufficient." 274 S.W.3d 666, 668 (Tex. 2008) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)). Again, we disagree with 361 Holdings' characterization of Krams's testimony. The affiant in Kerlin was testifying about events that occurred in 1847 and therefore could not satisfy the personal knowledge requirement of Texas Rule of Civil Procedure 166a(f). Id. ("An affidavit showing no basis for personal knowledge is legally insufficient."). Because Krams had personal knowledge about his own subjective beliefs, we overrule 361 Holdings' sub-issue.
Even if some of the affiants' statements were inadmissible, it would not change our disposition. The trial court considered the evidence submitted by both parties. See Miranda, 133 S.W.3d at 227; see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) ("[A] trial court's review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion."). In response to the plea, 361 Holdings submitted, among other evidence, the reporter's record from a temporary injunction hearing that spanned hundreds of pages, including numerous exhibits and testimony from appellants' expert, Wade Wheatley, and 361 Holdings' principal, Kenneth Berry. 361 Holdings' own evidence contradicts allegations made in their petition and, as further explained below, Berry made an admission that affirmatively negates the intent element of appellants' takings claim. See Douglas v. Hardy, 600 S.W.3d 358, 374 (Tex. App.—Tyler 2019, no pet.) (recognizing that when a movant's evidence failed to facially establish its right to judgment as a matter of law and therefore the burden never shifted to the nonmovant to a raise a genuine issue of material fact, an appellate court may nonetheless affirm the summary judgment if the nonmovant's evidence established the movant's right to summary judgment); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, L.L.P., 499 S.W.3d 169, 176-77 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (same). 361 Holdings' first issue is overruled.
IV. TAKINGS CLAIM
By their second issue, 361 Holdings contend that they raised a genuine issue of fact on each element of their takings claim, and if we conclude they did not, we should grant them an opportunity to develop the record and replead. We disagree.
To begin, 361 Holdings' allegations of damages are speculative. Despite alleging in their petition that contaminants migrated from the Good Hope DMPA to their property through the water table, 361 Holdings acknowledged during the temporary injunction hearing that they have no evidence to support their allegation:
[ATTORNEY]: Okay, fair enough. And, again, as to the expertise piece, sir, have you, Mr. Berry, done any scientific testing or analyses to determine whether the Exxon property has been damaged by prior depositing of dredged material on the Good Hope site yourself?
[BERRY]: No. We haven't had time to do that. We were not aware of these four dredging activities. They'd been kept secret. We just immediately found out about them and we've got Mr. Wheatley looking at that very issue.
During closing arguments at the same hearing, 361 Holdings' counsel acknowledged several times that their allegation of harm is speculative, saying things like:
• "[O]nce we figure out what's really going on";
• "[There is nothing to] justify not letting the experts dig down into this case and find out what's happening, if they're going to really start dumping in the uplands, what's going to happen to the water table, what's going to happen to the high school and the residential areas"; and
• "Maybe the Port will wait six more months and let us find out what's really happening here because that is the issue. If we are right, and they don't have to agree with us, but what if we're right?"
Speculation is not evidence; it does not create a fact issue. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 165 (Tex. 2004). 361 Holdings filed their response to the plea approximately three months later, and there is nothing in the response that indicates 361 Holdings conducted any tests in the interim to prove their theory of damages. Even if 361 Holdings could, in time, prove that the Exxon Tracts had been damaged from prior use of the Good Hope DMPA, they cannot prove the Port Authority acted with the requisite intent.
361 Holdings allege that four dredge material placement actions at the Good Hope DMPA that occurred between 2014 and 2018 caused the migration of pollutants to the adjacent Exxon Tracts. Specifically, 361 Holdings allege that, although the Good Hope DMPA is designed to return decanted seawater to the Corpus Christi Bay through a series of pipes and drainage ditches, it is also designed to allow some of the seawater to percolate into the groundwater, which flows towards their property. Because the Good Hope DMPA is allegedly operating as designed, 361 Holdings contend the Port Authority was substantially certain that placing dredge spoils at the Good Hope DMPA would damage the Exxon Tracts.
When we piece together the testimony of Wheatley and Berry, it appears that Wheatley's conclusion that the Good Hope DMPA was designed to allow seawater to percolate into the groundwater is based on the fact that the Good Hope DMPA does not contain an impermeable rubber liner along the bottom. That is, without a rubber liner, some seawater will necessarily percolate through the soil and into the water table. As Berry put it, "generally, [the seawater is] either going out the weir or going into the ground, and it just—that's the only two places it can go, other than atmospheric evaporation."
Berry explained that the rate of percolation depends on the content of the soil. For example, "[i]f there's fat clay, really greasy clay, water goes through it slower. To the extent it has more sand or gravel products in it, water goes through it faster." Both Wheatley and Berry acknowledged that they had not yet tested the soil composition from the Good Hope DMPA to determine the percolation rate. However, Berry did say that whatever the soil's content, excavating the cells to build higher berms "causes the clay lenses and sand lenses to all be cut open and exposed which lets the water leave the cell."
However, it is undisputed that the Navy, not the Port Authority, designed the Good Hope DMPA and that the USACE approved the facility's use as an upland DMPA. Therefore, to the extent the Good Hope DMPA was designed to allow seawater and effluent to migrate to adjacent properties, the Port Authority was not part of that decision-making process and any intent that may be inferred from the DMPA's initial design cannot be attributed to the Port Authority.
Moreover, 361 Holdings do not allege, and there is no evidence to indicate, that the Port Authority itself has ever placed dredge spoils at the Good Hope DMPA. Instead, the evidence conclusively establishes that four customers contracted with the Port Authority to deposit their dredge spoils at the Good Hope DMPA. Each agreement grants the customer a permit to use the Good Hope DMPA for a fixed period and contains the following provision or one that is substantially similar:
The Good Hope Dredge Material Placement Area, Cell I and Cell J, is provided to Company "As Is, Where Is" and Company shall, by whatever method it alone chooses, determine the condition of the Good Hope Dredge Material Placement Area, Cell I and Cell J, and related levees and spillways, and shall make such repair or modification of the same as are necessary to accommodate the material and effluent from Company's dredging. The [Port] Authority does not make any warranty, express or implied, that the
Good Hope Dredge Material Placement Area, Cell I and Cell J[,] is in condition to receive or accept the material to be deposited by Company.We fail to see how the Port Authority could be substantially certain that its customers' actions would cause damage to the Exxon Tracts when each customer contractually assumed the obligation to ensure the Good Hope DMPA was fit for its intended purpose.
Nevertheless, prior to each dredge material placement action, the Port Authority also required each customer to: (1) warrant that its dredge spoils were nonhazardous; (2) agree to defend and indemnify the Port Authority from any claim arising from its use of the Good Hope DMPA; (3) provide the Port Authority with copies of the required permits issued by the USACE to place their dredge materials at the Good Hope DMPA; (4) provide engineered drawings that demonstrate that the proposed dredging action is in compliance with the USACE permit; and (5) provide sediment quality analysis of dredge material to ensure it was acceptable to be placed in the Good Hope DMPA. This evidence shows that the Port Authority was aware that its customers' use of the Good Hope DMPA may result in some form of damage, but "awareness of the mere possibility of damage is no evidence of intent." Pollock, 284 S.W.3d at 821. This evidence also shows, contrary to 361 Holdings' claim, that the Port Authority took affirmative steps to prevent any damage from occurring. See id. (finding evidence of remedial actions taken by governmental entity was "contrary" to intentional conduct element of plaintiff's takings claim claim).
Most importantly, though, Berry admitted that the complained-of damage was preventable:
[ATTORNEY]: Now, if whoever is responsible for Cell J and I wanted to fix this issue so there would be no risk in the future to anyone on Exxon or anyone beyond Exxon, is there a fix to this problem?
[BERRY]: Yes, there is.
[ATTORNEY]: And what is that?
[BERRY]: That's to do what they do with all saltwater cells in the inner part of Texas is put a rubber liner, impermeable rubber liner through the bottom of the cell and up the side slopes.
[ATTORNEY]: And so if they wanted to have any assurances that—that the water going into the water table in Cell I or Cell J, there is a fix?
[BERRY]: For all future contamination, there's a fix. Put a liner in it and return your water back to the ship channel in a pipe or line the ditch.
In a similar case, the Supreme Court of Texas held that the migration of methane and benzene gasses from a city's landfill was not "necessarily incident to or a consequential result of the operation of a landfill" because the migration could have been prevented. Pollock, 284 S.W.3d at 821; see also San Antonio Water System v. Overby, 429 S.W.3d 716, 721 (Tex. App.—San Antonio 2014, no pet.) (concluding governmental immunity not waived on takings claim because migration of rainwater and effluent from city-maintained alley was preventable). In such cases, the governmental entity may have been negligent in failing to prevent the damage, but negligence does not rise to the level of an intentional taking. Pollock, 284 S.W.3d at 821; Jennings, 142 S.W.3d at 313.
Here, Berry's admission conclusively established that leaching is not necessarily incident to or a consequential result of operating an upland DMPA. See Pollock, 284 S.W.3d at 821; Overby, 429 S.W.3d at 721. Because the record conclusively negates the trial court's jurisdiction over 361 Holdings' takings claim, it was appropriate for the trial court to grant the Port Authority's plea and dismiss the claim with prejudice. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 10 (Tex. 2012); see also Tex. Parks & Wildlife Dept. v. Garland, 313 S.W.3d 920, 926 (Tex. App.—Tyler 2010, no pet.) ("Generally, the proper remedy when a court lacks subject matter jurisdiction is to dismiss the case without prejudice, but when a dispositive defect cannot be remedied, dismissal with prejudice is proper."). We overrule 361 Holdings' second issue.
V. ULTRA VIRES CLAIMS
By their third issue, 361 Holdings contend that they alleged two viable ultra vires claims. First, appellants allege that the Port Authority failed to obtain the necessary regulatory approvals from the USACE and TCEQ for previous dredge material placement actions that occurred at the Good Hope DMPA, and based on this "pattern and practice of violations," Strawbridge should be enjoined from allowing the Port Authority to proceed with future dredge placement actions without obtaining the necessary permits and approvals.
This claim was affirmatively negated by the jurisdictional evidence. As Berry acknowledged, it is the customer conducting the dredging activity, not the landowner, that is required to obtain the necessary permits:
[ATTORNEY]: Yes, sir. Now, sir, we've talked—you've talked with Opposing Counsel about Berry Island. You have used that in the past as a dredge material placement site, is that correct?
[BERRY]: Permit holders have used it as a dredge material placement area with my consent.
[ATTORNEY]: All right. So customers who want to place dredge material on your site, get the required permits, pay you a certain figure and then place dredged material on Berry Island, is that correct?
[BERRY]: That is a simplified version of what happens, but essentially it's accurate, yes.
Like Berry's customers, the record conclusively establishes that each of the Port Authority's customers acquired the necessary permits and approvals from the USACE and TCEQ to conduct its dredging activity, place the spoils at the Good Hope DMPA, and return the water to the Corpus Christi Bay. This includes use of the USACE's Nationwide Permit 16 for return water from an upland contained dredged material disposal area after each customer agreed to TCEQ's water quality certification requirements under § 401 of the Clean Water Act. See 33 U.S.C. §§ 1341, 1344. In short, 361 Holdings' allegation of prior "illegal" conduct is unfounded and cannot serve as the basis for their ultra vires claim. See Heinrich, 284 S.W.3d at 372 ("To fall within this ultra vires exception, a suit must . . . allege, and ultimately prove, that the officer acted without legal authority . . . ."). We overrule this sub-issue.
Appellants also alleged that the Port Authority cannot undertake the proposed improvements at the Good Hope DMPA without prior approval from the USACE. This allegation was also supported by the testimony of 361 Holdings' expert:
[ATTORNEY]: So your criticism as the expert for [361 Holdings] is that there's been no permit for modification of the Good Hope DMPA under the original permit, is that it?
[WHEATLEY]: Yes, sir.
We find nothing in the record or the legal arguments presented by Strawbridge that conclusively establishes that either: (1) the Port Authority is not required to obtain prior approval from the USACE before it constructs improvements at the Good Hope DMPA that will significantly increase the operational capacity of the facility; or (2) the Port Authority has received such approval.
Strawbridge also argues that he is not the proper official to enjoin because, although he is the apex official, regulatory compliance is outside his sphere of authority. See McRaven, 508 S.W.3d at 240 ("[A]n ultra vires suit must lie against the 'allegedly responsible government actor in his official capacity,' not a nominal, apex representative who has nothing to do with the allegedly ultra vires actions." (quoting Patel v. Tex. Dep't of Licensing & Regul., 469 S.W.3d 69, 76 (Tex. 2015))). Specifically, Strawbridge states in his affidavit that his "duties as CEO of the Port Authority do not directly include obtaining permits or environmental authorizations for dredge placement activities."
However, the Port Authority has never identified who it believes to be the proper official. We note that 361 Holdings were not permitted to conduct any jurisdictional discovery, and identifying the appropriate official, whomever that may be, can be easily ascertained through discovery. See, e.g., TEX. R. CIV. P. 194.2(b) (requiring disclosure of "any potential parties"). Because this alleged pleading defect is curable, 361 Holdings should be afforded the opportunity to amend once appellees identify the correct official. See Miranda, 133 S.W.3d at 227. Having pleaded a viable ultra vires claim, we sustain 361 Holdings' sub-issue. See Patel, 469 S.W.3d at 77. Accordingly, we reverse the dismissal of this single ultra vires claim and remand it to the trial court for further proceedings consistent with this memorandum opinion.
VI. CONCLUSION
The judgment is affirmed in part and reversed and remanded in part.
GINA M. BENAVIDES
Justice Delivered and filed on the 11th day of February, 2021.