2020 Long Tail Trail Investments, LLC v. State of Texas, Attorney General Kenneth Paxton (In His Official Capacity), Acting Texas Comptroller of Public Accounts Kelly Hancock (In His Official Capacity), and the Office of the Texas Comptroller of Public Accounts

ACCEPTED
15-25-00086-Cv
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
8/15/2025 3:51 PM
No. 15-25-00086-CV CHRISTOPHER A. PRINE
IN THE COURT OF APPEALS CLERK
FOR THE FIFTEENTH DISTRICT OF TEXAS FILED IN
AT AUSTIN, TEXAS 15th COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
8/15/2025 3:51:14 PM
CITY OF GRAND PRAIRIE, CITY OF ALEDO, CITY OF ANGLETON , CITY
CHRISTOPHER
Clerk
A. PRINE
OF
AUBREY, CITY OF BULVERDE, CITY OF CLYDE, CITY OF COLLEGE STATION, CITY
OF CRANDALL, CITY OF DENISON, CITY OF DENTON, CITY OF EDCOUCH, CITY OF
ELSA, CITY OF FATE, CITY OF HUTTO, CITY OF KAUFMAN, CITY OF LA VILLA,
CITY OF LOCKHART, CITY OF MCKINNEY, CITY OF NAVASOTA, CITY OF PARKER,
CITY OF VAN ALSTYNE, AND AUBREY MUNICIPAL DEVELOPMENT DISTRICT
Appellants – Plaintiffs
CITY OF ANNA, CITY OF BONHAM, CITY OF BROWNSVILE, AND CITY OF CIBOLO
Appellants – Intervenor Plaintiffs
2020 LONG TAIL TRAIL INVESTMENTS, LLC
Appellant – Intervenor Defendant
v.
THE STATE OF TEXAS, ATTORNEY GENERAL KENNETH PAXTON, IN HIS OFFICIAL
CAPACITY, ACTING TEXAS COMPTROLLER OF PUBLIC ACCOUNTS KELLY
HANCOCK, IN HIS OFFICIAL CAPACITY, AND THE OFFICE OF THE TEXAS
COMPTROLLER OF PUBLIC ACCOUNTS
Appellees – Defendants
_______________________________________________________

BRIEF OF APPELLANT – INTERVENOR PLAINTIFF CITY OF BONHAM
_____________________________________________________________

Wolfe, Tidwell & McCoy, LLP
David Overcash
ORAL ARGUMENT David.overcash@wtmlaw.net
REQUESTED SBN 24075516
Clark McCoy
SBN 90001803
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile

i
IDENTITY OF PARTIES AND COUNSEL

Appellant: City of Bonham, Texas
Plaintiff-Intervenor in court below

Appellant’s Counsel: Wolfe, Tidwell & McCoy, LLP

David Overcash
David.overcash@wtmlaw.net
SBN 24075516
Clark McCoy
SBN 90001803
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile

Other Appellants: City of Grand Prairie, City of Aledo, City of
Angleton, City of Aubrey, City of Bulverde,
City of Clyde, City of College Station, City
of Crandall, City of Denison, City of
Denton, City of Edcouch, City of Elsa, City
of Fate, City of Hutto, City of Kaufman, City
of La Villa, City of Lockhart, City of
McKinney, City of Navasota, City of Parker,
City of Van Alstyne, Aubrey Municipal
Development District
Original Plaintiffs in court below

Other Appellants’ Counsel: Messer, Fort, PLLC

Timothy A. Dunn
William Andrew Messer
andy@txmunicipallaw.com
Bradford E. Bullock
Arturo D. Rodriguez
6371 Preston Rd Ste 200
Frisco, Texas 75034
972.668.6400 telephone
972.668.6414 facsimile
ii
Additional Appellants: City of Brownsville, City of Cibolo
Plaintiff-intervenors in court below, joined in
original plaintiff filings on appeal

Counsel: Messer, Fort, PLLC
Timothy A. Dunn
William Andrew Messer
andy@txmunicipallaw.com
Bradford E. Bullock
Arturo D. Rodriguez
6371 Preston Rd Ste 200
Frisco, Texas 75034
972.668.6400 telephone
972.668.6414 facsimile

<in court below, also appeared for Brownsville
the following attorneys>

Staff Counsel, being:
Lena Chaisson-Munoz
Jennifer Avendano
Guillermo S. “Will” Trevino

<in court below, also appeared for Cibolo the
following attorneys>

Hyde Kelley LLP
George E. Hyde
Matthew L. Weston

2020 Long Tail Trail Investments, LLC
Defendant-intervenor in court below

Counsel: Lehotsky Keller Cohn LLP

William T. Thompson
Todd Disher
Joshua P. Morrow
408 W. 11th St.
iii
Austin, TX 78701
will@lkcfirm.com
512.693.8350 telephone

City of Anna, Texas
Plaintiff-Intervenor in court below

Counsel: Wolfe, Tidwell & McCoy, LLP
Filing separately from City of Anna

David Overcash
David.overcash@wtmlaw.net
SBN 24075516
Clark McCoy
SBN 90001803
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile

Appellees: State of Texas, Attorney General Kenneth
Paxton (in his official capacity), Texas
Comptroller of Public Accounts Kelly
Hancock (in his official capacity)1, and the
Office of the Texas Comptroller of Public
Accounts

Appellees’ Counsel: Office of the Texas Attorney General

Cole P. Wilson
Cole.wilson@oag.texas.gov
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
512-936-1309 telephone
512-320-0667 facsimile

1 As replacing former Texas Comptroller Glenn Hegar.

iv
Table of Contents

IDENTITY OF PARTIES AND COUNSEL .................................................. ii
INDEX OF AUTHORITIES........................................................................ vii
STATEMENT OF THE CASE ..................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ....................................... 3
ISSUES PRESENTED ................................................................................ 5
STATEMENT OF FACTS ........................................................................... 5
1. Adoption by reference of the SB 2038 legislative history, procedural
history, and content applicable to all Texas municipalities in co-
Appellant filings. ................................................................................... 5
2. Distinctions in Bonham’s Posture as Compared to Other Appellants. .. 6
SUMMARY OF ARGUMENT ...................................................................... 8
ARGUMENT ............................................................................................. 10
Standard of Review ............................................................................... 11
Issue 1: Order On State’s Plea Was Overbroad With Respect To
Separate Pleadings Of Bonham ............................................. 12
A. Content and Substance of State’s Plea to Jurisdiction was
Limited to Pleadings of Other Plaintiffs. ................................... 14
B. Bonham’s Unique Claims Were Never Challenged by State’s
Plea. ........................................................................................ 15
C. April 14 Order Should Not Have Closed Entire Case. .............. 18
Issue 2: Remand is warranted for consideration of pending motions,
pleading amendments, and joinder of additional defendants to
forestall ongoing injuries injuring Texas municipalities via SB
2038. ...................................................................................... 19
A. Pending motions in court were implicitly denied, or deemed
overruled by passage of time. .................................................. 19
B. Bonham is entitled to amend pleadings, and potentially join
additional necessary parties, before closure of the case. ......... 20
Issue 3+: Bonham incorporates by reference the Issues Presented by co-
appellants City of Grand Prairie, et al., as to all those matters
applicable to all Texas municipalities. ..................................... 27

v
PRAYER................................................................................................... 29
CERTIFICATE OF SERVICE.................................................................... 31
CERTIFICATE OF COMPLIANCE ........................................................... 31
APPENDIX ............................................................................................... 32

vi
INDEX OF AUTHORITIES

Cases
Abbott v. City of El Paso, 677 S.W.3d 800 (Tex. 2023) ............................. 14

Ball v. Cundiff, 127 S.W.2d 502 (Tex. Civ. App.—Fort Worth 1939, writ

dism’d judgm’t cor.) ......................................................................... 21, 26

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000). .................... 12

Brown Cracker & Candy Co. v. City of Dallas, 137 S.W. 342 (Tex. 1911) . 14

City of Floresville v. Nissen, 654 S.W.3d 11 (Tex. App.—San Antonio 2022,

pet. denied) ........................................................................................... 17

City of New Braunfels v. Stop the Ordinances Please, et al., 2013 WL

692446 (Tex. App.—Austin, Feb. 21, 2023, no pet.) .............................. 15

County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002).................. 13, 26

Dohlen v. City of San Antonio, 643 S.W.3d 387 (Tex. 2022) ............... 13, 14

Elliott v. City of College Station, ___ S.W.3d ___, 2025 WL 1350002 (Tex.

May 9, 2025) ......................................................................................... 17

Gulf Coast Waste Disposal Auth. v. Four Seasons Equip., Inc., 321 S.W.3d

168 (Tex. App.—Houston [1st Dist.] 2010, no pet.)................................. 12

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012). ..... 11

Mattox v. County Comm’rs Court, 389 S.W.3d 464 (Tex. App.—Houston

[14th Dist.] 2012, pet. denied) ................................................................. 13

vii
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). .. 11,

12

Tex. Prudential Ins. Co. v. Dillard, 307 S.W.2d 242 (Tex. 1957) ............... 13

Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex. App.—Waco

2005, aff’d in part, rev’d in part by 233 S.W.3d 835) .............................. 26

Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) ...... 14, 26

Thomas v. Long, 207 S.W.3d 334 (Tex. 2006).......................................... 12

West End API Ltd. v. Rothplez, 732 S.W.2d 371, 374 (Tex. App.—Dallas,

writ ref’d n.r.e.) ...................................................................................... 12

William V. Dorsaneo III, Texas Litigation Guide § 70.03[4][f]..................... 26

Statutes
Tex. Civ. Prac. & Rem. Code § 37.006 ......................................... 20, 24, 25

Tex. Gov’t Code § 311.032(c) ................................................................... 18

Tex. Loc. Gov’t § 42.023 ........................................................................... 14

Tex. Loc. Gov’t Code § 42.105(c) ............................................................. 17

Tex. Loc. Gov’t Code § 42.105(d) ............................................................... 8

Tex. Loc. Gov’t Code § 42.155(a) ............................................................. 17

Tex. Loc. Gov’t Code § 42.155(b) ............................................................... 8

Tex. R. App. P. 33.1(b) ............................................................................. 20

Tex. R. App. P. 38.7 ................................................................................. 28

viii
Tex. R. Civ. P. 194.2(b)(12) ...................................................................... 22

Tex. R. Civ. P. 194.2(b)(2) ........................................................................ 22

Tex. R. Civ. P. 329b(c)........................................................................ 19, 20

ix
STATEMENT OF THE CASE

Nature of the case. This is an appeal from grant of a plea to the

jurisdiction by the State of Texas, and certain officials and offices thereof,

asserting immunity from suit and liability against and action for declaratory

judgment and other relief from unconstitutional statutes created by SB 2038.

Course of proceedings. The suit’s original plaintiffs, City of Grand

Prairie et al., filed their Original Petition seeking relief by declaratory

judgment against the State of Texas in the Travis County district court. 2 At

various later dates, they were joined by plaintiff-intervenors City of Anna, City

of Bonham, City of Brownsville, and City of Cibolo. 3 The State of Texas timely

answered and filed a plea to the jurisdiction on various grounds. 4 A

landowner who had submitted a petition to plaintiff City of Denton, 2020 Long

Tail Trail Investments, LLC, (“LTTI”) also intervened in the suit as a

defendant, seeking declaratory judgment that SB 2038 was constitutional

2 C.R. at 3-62 (Vol. 1, p. 3-62) (Plaintiff’s Original Petition for Declaratory Relief, filed
Oct. 25, 2023).
3 See C.R. at 2500-2523 (Vol. 13, p. 3-26)(City of Bonham’s Original Petition in
Intervention, filed May 24, 2024).
4 C.R. at 4652-4658 (Vol. 20, p. 60-66)(Defendant’s Answer and Affirmative Defenses
to City of Bonham’s Original Petition in Intervention, filed June 17, 2024) and C.R.
8624-8652 (Vol. 36, p. 67-95)(The State Defendants’ Amended Plea to the
Jurisdiction, filed Jan. 2, 2025)(herein “State’s Plea”) and C.R. 233-255 (Vol. 2, p. 59-
81)(The State of Texas’s Plea to the Jurisdiction, filed Apr. 22, 2024)(as later
amended, “State’s Plea” herein).

1
and enforceable. 5 Plaintiffs amended their pleadings to join as defendants

the Texas Attorney General and Texas Comptroller of Public Accounts (in

their official capacities only), along with their offices. 6 In addition to the

State’s Plea being amended to include those defendants, answers were filed

on behalf of those parties, and the State moved to strike the intervention of

LTTI. 7 Various parties filed motions for summary judgment, believing that the

merits of SB 2038 were ripe for decision without lengthy discovery as not

involving any disputed issues of fact. Plaintiff-intervenors City of Anna and

City of Bonham filed motions seeking to join additional parties and make

accompanying amendments to their petitions. 8

5 C.R. at 263-276 (Vol. 2, p. 89-102)(Plea in Intervention of 2020 Long Tail Trail
Investments, LLC, filed May 1, 2024).
6 See., e.g, C.R. at 6123-6186 (Vol. 24, p. 3-67)(“Plaintiffs’ Fourth Amended Original
Petition for Declaratory Relief”, filed Oct. 10, 2024, encompassing Grand Prairie and
other original plaintiffs); C.R. 8236-8332 (Vol. 33, p. 1-99)(“City of Anna’s Second
Amended Petition in Intervention”, filed December 23, 2024); and C.R. 8446-8494
(Vol. 35, p. 3-52)(“City of Bonham’s First Amended Petition in Intervention”, filed Dec.
23, 2024).
7 C.R. 6212-6218 (Vol. 25, p. 91-98)(“Defendants’ Answer and Affirmative Defenses”,
filed Nov. 15, 2024); C.R. 8624-8652 (Vol. 36, p. 67-95)(“The State Defendants’
Amended Plea to the Jurisdiction”, filed Jan. 2, 2025); and C.R. 2404-2497 (Vol. 12,
p. 101-194)(Defendant’s Verified Plea in Abatement and Motion to Strike 2020 Long
Tail Trail Investments, LLC’s Original Petition in Intervention, filed May 24, 2024).
8 C.R. 8209-8233 (Vol. 32, p. 143-167)(“Joint Motion for Leave to Amend Petition to
Join Additional Parties by City of Bonham and City of Anna”, filed Dec. 23, 2024).

2
Trial court disposition. Multiple hearings were held to consider the

merits of the State’s Plea. 9 Ultimately, the trial court granted the State’s

motion to eject LTTI from the case and granted the State’s Plea as to all

named defendant parties, denied those motions for summary judgment set

for simultaneous hearing as moot, and closed the case. 10 All parties seeking

a ruling on the merits of SB 2038 elected to pursue this appeal. 11

STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the decisional process of the Court of Appeals

will be aided by oral argument, as this appeal deals with a variety of issues

as to whether the trial court erred in finding that the State-affiliated parties-

defendant were entirely immune from suit based on a constitutionality

challenge to SB 2038. Appellant-affiliated parties contend that suits of this

nature must be permitted where the Texas Legislature adopts laws which

are in conflict with the Texas Constitution but they are ostensibly required to

9 Hearings were conducted on jurisdictional pleas at issue on Jan. 8 and Jan. 16, 2025.
See, e.g. C.R. 8653 (State’s notice of hearing for Jan. 8).
10 C.R. at 9081-9082 (Vol. 40, p. 60-61)(“Order on Pending Motions”, filed Apr. 14,
2025)(“Apr. 14 Order” herein).
11 See, e.g., C.R. 9139-9143 (Vol. 40, p. 118-122)(“Plaintiff-Intervenor City of Bonham’s
Notice of Appeal”, filed May 8, 2025). Also in the docket of the trial court was “City of
Anna’s TRCP 329b Motion to Modify Judgment and Alternative Motion for New Trial
and Other Relief.” C.R. 9153-9198 (Vol. 41, p. 3-48)(filed May 14, 2025)(“Anna 329b
Motion”). While Bonham did not join Anna in the submission of the latter filing, it is in
a similar position with respect to the scope-of-judgment matters discussed therein.

3
observe, especially where, as here, the Legislature deliberately omits any

actual assignments of power-to-enforce in favor of a magic incantation “by

operation of law.” Separate and apart from those issues, this appeal also

involves the premature closure of the case in the court below while motions

relating to joinder of necessary parties remained pending. As this appeal

involves issues central to municipal governing bodies identifying their

territory, is contributing to conflicting and confusing maps being adopted by

different agencies, and causing unjustifiable actions by Texas governmental

agencies, apparently in unfounded reliance or improper interpretation of SB

2038 provisions. Accordingly, Appellant requests oral argument.

4
ISSUES PRESENTED

Issue 1: Trial court erred by construing State’s Plea as applicable to
the entirety of Bonham’s pleadings and issued an overbroad
ruling.

Issue 2: Remand is warranted for consideration of pending motions,
pleading amendments, and joinder of additional State
defendants to forestall ongoing injuries to Texas
municipalities via SB 2038.

Issue 3(+): Bonham incorporates by reference the Issues Presented by
co-appellants City of Grand Prairie, et al., as to matters in
their brief applicable to all Texas municipalities.

STATEMENT OF FACTS
1. Adoption by reference of the SB 2038 legislative history12, procedural
history, and content applicable to all Texas municipalities in co-
Appellant filings.
In an effort to reduce repetition as between filings by municipalities, the

City of Bonham (“Bonham”) focuses its brief on the facts distinguishing its

position in this suit from other appellants. In accordance with Texas Rule of

Appellate Procedure (“TRAP”) 9.7, Bonham adopts by reference, and

incorporates herein as if set forth in full, all of that Statement of Facts

12 While this suit was pending, the 89th Legislature adopted a bill which amended various
provisions first created by SB 2038. However, it does not become effective until
September 1, 2025 (after the due date for this brief), and would not have any effect
on petitions submitted to Bonham prior to that date—those would be controlled solely
by the original statute. In addition, the new changes do not modify many of the clauses
giving rise to the instant challenges to the original statutory language, which is
challenged as being void ab initio—if Bonham or other cities prevail in this suit, there
might be nothing to amend. As such, the new legislation (HB 2512) should not affect
the handling of this appeal.

5
presented in the live brief of appellants City of Grand Prairie, et. al., save and

except for those facts which are specific to a different Texas municipality,

and except as amended or modified by the paragraphs below. 13

2. Distinctions in Bonham’s Posture as Compared to Other Appellants.
A. Bonham’s Independent Pleadings

At the time of the hearings on the State’s Plea, most of the plaintiff

municipalities were joined in one pleading led by the City of Grand Prairie;

their live pleading as of the Apr. 14 Order was their Fourth Amended Petition

(collectively, “Grand Prairie Group” or “GP Group”).14 Bonham was one of

several plaintiff-intervenors who have separate legal counsel and filed

independent pleadings from the GP Group. 15

Bonham’s live pleading featured claims with substantial overlap to

those made by the GP Group (by either replication or express incorporation),

13 See “Brief of Appellant Cities” filed by City of Grand Prairie, et al. in this cause
(submission deadline Aug. 15, 2025). Bonham does not adopt any content specific to
the Aubrey Municipal Development District and takes no position on any factual
matters specific to any other municipality.
14 C.R. 6123-6186 (Vol. 24, p. 3-66, not inclusive of exhibits); as supplemented by C.R.
8767-8772 (Vol. 37, p. 110-115).
15 See C.R. at 2500-2523 (Vol. 13, p. 3-26)(City of Bonham’s Original Petition in
Intervention, filed May 24, 2024); and C.R. 8446-8494 (Vol. 35, p. 3-52)(“City of
Bonham’s First Amended Petition in Intervention”, or “1st Am. Pet.”, filed Dec. 23,
2024). The latter was Bonham’s live pleading for purposes of this appeal.

6
but Bonham did not adopt anyone else’s pleadings as its own. 16 Further,

Bonham’s pleadings included various claims which were not advanced by

the GP Group, distinctions in authority or argument with respect to other

parties’ claims, and factual context that was not raised or addressed by the

GP Group’s live pleading. 17

B. Bonham’s Pending Matters When Case Closed Below.

Bonham attempted to forestall premature disposal of its claims—both

on the merits of the State’s Plea, and with respect to the overly broad order

of April 14—through motions which never received any ruling in the court

below. Specifically, Bonham had pending in the court’s docket:

1) “Joint Motion for Leave to Amend Petition to Join Additional Parties
by City of Bonham and City of Anna”18;

The State’s Plea limited its discussion of plaintiffs’ pleadings to the specific

contents of the GP Group’s live pleading (their Fourth Amended Petition). 19

16 See generally id; see also C.R.8455 at ¶ 24 (limiting Bonham’s incorporation to
“authority and legal argument” in Section V of the 4th Am. Petition, “with refinements
and additions noted [by Bonham’s 1st Am. Pet.]”); and C.R. 8783-84 at ¶ 2 (City of
Anna’s and City of Bonham’s Joint Response to Defendants’ Pleas to the
Jurisdiction)(again providing for limited incorporation).
17 See Issue #2 below.
18 C.R. 8209-8233 (Vol. 32, p. 143-167)(filed Dec. 23, 2024).
19 See generally C.R. 8624-8652 (Vol. 36, p. 67-95). The word “Bonham” does not appear

therein. Taking the most generous view of this filing, Bonham might be considered as
part of the undefined term “the Cities”—which would also include Brownsville, Cibolo,
and Anna, also with pleadings independent from the GP Group, but there is no
discussion of Bonham’s unique facts or claims. See id.

7
Its internal plaintiff-pleading-quotations were exclusively lifted from the GP

Group petition, and various arguments and claims raised by Bonham were

not substantively discussed or adequately briefed by the State for trial court

determination. 20 This pending motion sought, among other relief, leave to

amend its live pleading to add a petitioning property owner (in part because

the State of Texas refuses to reveal how it will enforce SB 2038). 21

SUMMARY OF ARGUMENT
Many of the arguments in this lawsuit boil down to whether the Texas

Legislature may use the clause “by operation of law” as a magic spell which

prevents any meaningful judicial review of whether a statute containing those

words conforms to the Texas Constitution.22 The State Defendants achieved

dismissal on the basis of a plea to the jurisdiction which, in essence, says

that this clause has miraculous and unlimited power to wreak havoc in the

governance of municipalities, destroy contractual exchanges of

consideration, and nullify other statutes in a manner which prevents timely

issuance of any declaratory judgment: it is the failure of the statute to provide

enforcement authority to anyone at all which, per the State, makes it

20 See generally id.; see also see Issue #2, Sec. B, infra.
21 C.R. 8221-22 (Vol. 32, p. 155-56) and C.R. 8231 (Vol. 32, p. 165)(page from State’s
“disclosures”).
22 See Tex. Loc. Gov’t Code §§ 42.105(d) and 42.155(b) (both newly created by SB 2038
and containing phrase “released by operation of law.”)

8
impossible to challenge SB 2038 in this suit. 23 The State Defendants

therefore substituted prevarication and waffling whether or not State agency

or officials had yet taken actions to enforce SB 2038, without ever denying

that per the statute, any of them can (and some have been) enforcing its

provisions.24

In addition to the grounds for appeal that are common to all of the

municipal plaintiffs and intervenors, 25 the trial court erred in issuing an

ambiguous order on the State’s Plea and closing the case without resolution

of other pending matters specific to plaintiff-intervenor City of Bonham.

First, despite a timely motion by co-plaintiff-intervenor City of Anna to

reform or modify the judgment, the trial court effectively and erroneously

disposed of claims not directly contested by the State’s Plea, without any

known grounds.

Second, presuming arguendo that the trial court’s determination

regarding jurisdiction over the State Defendants was correct on the live

23 C.R. 8231.
24 See, e.g., C.R. 9153-9198 (“City of Anna’s TRCP 329b Motion to Modify Judgment
and Alternative Motion for New Trial and Other Relief”). Within the City shows that
prior to April 14, 2025, the TCEQ had been promulgating documents, conducting
hearings, and creating new utility districts affecting territory within municipal ETJ in a
manner which could only be justified through (unspoken) reliance on SB 2038. See,
e.g., id. at 9165-66 (TCEQ order of Feb. 21, 2025, declaring land within MUD creation
order to be outside of any municipal ETJ).
25 See Issue 3+ content below.

9
pleadings, it was manifest error to close the case without first allowing

Bonham and other plaintiffs an opportunity to amend to resolve whatever

jurisdictional defect might have been identified.

Third, closure of the case was improper in light of Bonham’s pending

motions for leave to join additional parties.

Each of these reasons would independently warrant reversal or

abrogation of the Apr. 14 Order, and reversal in favor of Bonham and/or

remand to the trial court for further proceedings.

ARGUMENT

As a preliminary matter, the central issues of the instant appeal do not

require deep analysis of if the Texas Legislature has authority over how

municipality’s extraterritorial jurisdiction is determined or governed. Bonham

recognizes that since ETJ was a creation of statute in the first instance, the

Legislature enjoys great power to change the laws it has adopted. However,

all statutes are subject to constitutional limitations and requisites with respect

to how that legislative power is utilized, and ultimately it may be that the

Legislature must modify some of the particulars of legislation such as SB

2038 in order to achieve lawful objectives of the original statute. These and

other issues constitute the merits of Bonham’s claims, and this appeal is

10
intended to allow those matters to be fully developed and considered in the

trial court.

Standard of Review

The determination of whether a court has subject-matter jurisdiction

over a claim is a question of law, which is reviewed by appellate courts de

novo. 26 Governmental immunity deprives a trial court of subject matter

jurisdiction for lawsuits unless the state has consented to suit. 27 “In reviewing

a grant or denial of a plea to the jurisdiction by the trial court, the appellate

courts must determine if the plaintiff’s pleadings, construed in favor of the

plaintiff, allege sufficient facts affirmatively demonstrating the court’s

jurisdiction to hear the case. 28 Evidence submitted with a plea to the

jurisdiction is to be considered if it is central to a jurisdictional issue. 29 The

party claiming immunity may submit evidence to rebut the pleadings and

undermine any claimed waiver of immunity. 30

“In sum, a court deciding a plea to the jurisdiction is not required to look

solely to the pleadings but may consider evidence and must do so when

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

27 Id. at 224.

28 Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012).

29 Id. at 476.

30 Miranda, 133 S.W.3d at 227.

11
necessary to resolve the jurisdictional issues raised.” 31 A plaintiff bringing a

claim against a government entity bears the burden of alleging facts that the

trial court has subject matter jurisdiction over a case.32 Only where the

pleadings affirmatively negate the existence of jurisdiction may a plea to the

jurisdiction be granted without allowing the plaintiff an opportunity to

amend.33 If a petition contains multiple claims, it should not be dismissed just

because the court lacks jurisdiction over some of them. 34

Issue 1: ORDER ON STATE’S PLEA WAS OVERBROAD WITH
RESPECT TO SEPARATE PLEADINGS OF BONHAM
Nearly fifty years ago, Texas’ Fifth Court of Appeals put it quite plainly:

“What can be better established than the proposition that relief that has

not been prayed cannot be granted?” 35 Even under briefing rules which

call for liberal construction of filings under principles of doing substantial

justice, it is appropriate for courts to limit their grants of relief to the contours

31 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000), overruled on other

grounds by Tex. Dep’t of Parks Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).
32 Gulf Coast Waste Disposal Auth. v. Four Seasons Equip., Inc., 321 S.W.3d 168, 173
(Tex. App.—Houston [1st Dist.] 2010, no pet.).
33 See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
34 See generally Thomas v. Long, 207 S.W.3d 334 (Tex. 2006).
35 West End API Ltd. v. Rothplez, 732 S.W.2d 371, 374 (Tex. App.—Dallas, writ ref’d
n.r.e.).

12
of what the litigants actually seek by their pleadings. 36 Each plaintiff’s claims

must be assessed by reference to their own live pleadings, not through

arguments or dispositive motions targeting those of another party. 37

Also, under the applicable standards of review discussed supra,

Bonham must only allege facts which demonstrate jurisdiction—e.g., that it

has suffered concrete injuries that are redressable by relief against a named

defendant—in order to remain in the proceeding and to engage in further

litigation. The merits of the plaintiff’s claims—matters such as whether the

events described by pleadings actually occurred, or whether they justify the

relief requested as to particular defendants—are not before any court

considering something like the State’s Plea. “In deciding a plea to the

jurisdiction, a court may not weigh the claims’ merits but must consider only

the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional

inquiry.”38

36 Id. (citing Tex. Prudential Ins. Co. v. Dillard, 307 S.W.2d 242 (Tex. 1957)); see also
Mattox v. County Comm’rs Court, 389 S.W.3d 464 (Tex. App.—Houston [14th Dist.]
2012, pet. denied)(finding error where trial court granted relief not requested by any
party or supported by any summary-judgment ground).
37 Dohlen v. City of San Antonio, 643 S.W.3d 387, 398 (Tex. 2022)(not addressing
standing issues in light of immunity defense requiring plaintiff be given opportunity to
replead).
38 County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Bonham believes it
has raised multiple meritorious challenges to the constitutionality of SB 2038, but as
this appeal arises from a ruling on a plea to the jurisdiction (rather than summary
judgment), it appears untimely to brief them in detail. This includes, but is not limited

13
Recent Texas Supreme Court decisions have emphasized that “Texas

law does not favor striking defective pleadings without providing plaintiffs an

opportunity to replead.”39 In order for a plea to be granted without providing

an opportunity for the plaintiff to amend as some jurisdictional deficiency

which was found, a defendant must provide evidence demonstrating that it

is “incurably” defective. 40

A. Content and Substance of State’s Plea to Jurisdiction was Limited
to Pleadings of Other Plaintiffs.

The only dispositive motion before the trial court which presented by

the State Defendants was their Amended Plea to the Jurisdiction. 41 The

prayer for relief within that filing was quite simple: “[State Defendants]

respectfully reques[t] that this Court grant their Plea to the Jurisdiction and

to, the unconstitutional delegation of authority to suspend Tex. Loc. Gov’t § 42.023 to
private parties. See generally Abbott v. City of El Paso, 677 S.W.3d 800 (Tex. 2023)
vacated on other grounds by 677 S.W.3d 914 (Tex. 2023)(finding appeal moot as
executive order at issue had expired); Brown Cracker & Candy Co. v. City of Dallas,
137 S.W. 342 (Tex. 1911). Bonham is willing to provide whatever additional briefing
this court might find warranted, but concurs with the Grand Prairie Group that it would
likely necessitate additional time for drafting and suitable motions for leave to exceed
word count limitations if all constitutional challenges are to be argued in detail.
39 Dohlen v. City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022).
40 See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-840 (Tex. 2007). A
notable exception was discussed where pleadings alone demonstrate that a claim
incurably falls outside any waiver of sovereign immunity. Id. at 840.
41 C.R. at 9081-9082 (Vol. 40, p. 60-61) (Apr. 14 Order, listing matters before the court)
herein); C.R. 8624-8652 (Vol. 36, p. 67-95)(amended plea to jurisdiction filed Jan. 2,
2025); see also C.R. 8653 (notice of hearing for same, filed Jan. 2, 2025).

14
dismiss the Cities’ claims in their entirety with prejudice.” 42 The term “the

Cities” utilizes a capitalization format which is well understood to reference

a specially defined term, but the State’s Plea provides no definition or

explanation. 43 Other than the case style, and one passing comment that “the

Cities do not allege that the Attorney General has enforced or threatened to

enforce SB 2038 against any Plaintiff City, Intervenor, or any other Texas

municipality”, there is no mention of Bonham or any other plaintiff who were

in the suit on pleadings independent of the Grand Prairie Group. 44 Bonham

made direct efforts to ensure the trial court was mindful of its separate

pleadings prior to the issuance of the Apr. 14 Order by its filings.45

B. Bonham’s Unique Claims Were Never Challenged by State’s Plea.

There are numerous material differences in the live pleadings of

Bonham as compared to the Grand Prairie Group; it is not merely a matter

of the same issues and arguments being presented by different counsel in

42 C.R. 8647 (Vol. 36, p. 90)(italics added).
43 See generally State’s Plea.
44 Id.; see also C.R. 8626 (quoted passage, italics added).
45 See, e.g., C.R. 8786 at ¶ 6 and n. 11 (p. 5 of “City of Anna’s and City of Bonham’s
Response to Defendants’ Pleas to the Jurisdiction”). “When evaluating the State’s
Plea, its merits must be considered with respect to each live pleading separately, as
it should not be presumed that any pleading deficiencies (especially incurable defects)
would be applicable to different documents.” Id., citing City of New Braunfels v. Stop
the Ordinances Please, et al., 2013 WL 692446 (Tex. App.—Austin, Feb. 21, 2023,
no pet.).

15
alternative sequences or differing levels of detail. 46 While there is substantial

overlap and various commonalities between these two pleadings—

particularly where, as here, Bonham directly adopted certain arguments and

authority presented by its co-plaintiff cities—entirely distinct and unique

grounds for suit were also in Bonham’s live pleading. 47

The State’s Plea is replete with references to other parties’ live

pleadings, including a number of direct quotations. 48 But it contains zero

references to Bonham’s live pleading or any quotations from Bonham’s

filings, which inherently clouded the issues before the trial court by conflating

the various parties’ true positions. 49 The following claims and issues

presented in Bonham’s live pleading but not within the 4th Am. Petition should

have been outside the scope of the State’s Plea, for lack of any appropriate

request for relief or actual argument to the trial court when the matters were

being heard:

46 Compare Bonham’s First Amended Petition in Intervention, C.R. 8446-8494 (Vol. 35,
p. 3-51) with [Grand Prairie Group’s] Fourth Amended Original Petition for Declaratory
Relief, C.R. 6123-6186 (Vol. 24, p. 3-66).
47 See generally id.; C.R. 8455 (at ¶ 24, Bonham’s limited incorporation of material from
Fourth Amended Petition by reference)
48 See, e.g., C.R. 8625 (two citations to 4th Am. Pet.); C.R. 8625 (three citations to same).

49 See generally State’s Plea.

16
• SB 2038 cannot be “self-executing” in the manner the State suggests
(Sec. A);50
• SB 2038 is void for vagueness of clause “by operation of law” (Sec. C(i));51
• SB 2038 impermissibly intrudes on home rule authority (Section C(iii)); 52
• SB 2038 election provisions are void local and special laws due to cost-
shifting provisions (Section C(iv))53;
• SB 2038 cost-shifting provisions are void as improper private gifts of
public funds (Sec. D)54;

As is noted extensively throughout the plaintiffs’ filings throughout this case,

SB 2038 was adopted without any savings/severability clauses. 55 As such, if

any single component of the law is found to be unconstitutional, the entire

50 C.R. 8256-8258. Bonham recognizes that since the briefing in this case was submitted
to the trial court, an opinion was issued in by the Texas Supreme Court in a different
suit related to SB 2038. See generally Elliott v. City of College Station, ___ S.W.3d
___, 2025 WL 1350002 (Tex. May 9, 2025). While that opinion discusses the clause
“by operation of law” as part of its reasoning, the question of whether such clauses
function as magic spells which prevent judicial review for constitutionality was not
before the Elliott court, and any implicit support for that conclusion should be
considered merely dicta. Id. Bonham also notes that the opinion conflates declarative
statutory statements regarding an action by a “municipality” (Tex. Loc. Gov’t Code §
42.105(c) and § 42.155(a)), with “impos[ing] a mandatory duty on City officials”—
despite there being no reference in those statutes to any municipal officials. Bonham
would dispute that SB 2038 attempts to dictate the votes of individual members of its
City Council, or that the Texas Legislature has the power to do so. See generally SB
2038; City of Floresville v. Nissen, 654 S.W.3d 11 (Tex. App.—San Antonio 2022, pet.
denied)(intent to limit power of home rule cities must “appear with unmistakable
clarity”). Voting by municipal officials is a form of speech and would be subject to First
Amendment protections, even if there might be consequences for their municipality if
they failed to accomplish some result called for by statute.
51 C.R. 8460, ¶ 32 at bullet 3.
52 C.R. 8462.
53 C.R. 8462-8464.
54 C.R. 8464-8465.
55 See, e.g, C.R. 8465-8466 (Sec. E and F of Bonham’s live pleading); see generally SB
2038.

17
statute should be declared unenforceable as void ab initio. 56 Whether or not

the State’s jurisdictional challenges are valid with respect to some of them,

so long as one ground survives, its merits must be considered by the trial

court in the first instance.

C. April 14 Order Should Not Have Closed Entire Case.

In keeping with its filings in the court below seeking modification of the

Apr. 14 Order, Bonham does not contend that no part of the State’s Plea

addressed matters raised in its First Amended Petition, and recognizes that

it was reasonable for the trial court to issue rulings on those claims common

between the parties-plaintiff. 57 As such, Bonham does not argue it was error

for some portions of its pleadings to be addressed through a trial court ruling

on the State’s Plea, but it was error to grant relief beyond the scope of the

defendant’s actual requests for relief or arguments. 58

Bonham had claims within its live pleading that were not effectively

challenged by the State’s Plea, making the clause of the Apr. 14 Order

56 See generally Tex. Gov’t Code § 311.032(c). All of the adopted SB 2038 provisions
are interdependent and part of the same statutory framework; even if a court should
find the statute to be constitutional and enforceable in some respects, a constitutional
infirmity in any part is fatal to the entire scheme.
57 C.R. 9154-9155 (TRCP 329b Motion at p. 2-3).
58 Co-plaintiff-intervenor Anna had proposed this error be corrected by specifying that
the State’s Plea targeted the 4th Am. Pet., as supplemented, and that the claims by
intervenor-plaintiffs (including Bonham) as “asserted therein” were the matters subject
to dismissal. C.R. 9154-9155.

18
reading “[t]his order resolves and pending claims and closes the case”

premature. 59 This is particularly important where, as here, the order

purporting to dispose of the case on a plea to the jurisdiction did not

simultaneously deny all pending motions, and parties-plaintiff have motions

for leave to amend pleadings and join additional parties awaiting decision in

the court’s docket. Accordingly, the Apr. 14 Order should be reversed in

whole or in part and this case remanded for further proceedings. 60

Issue 2: Remand is warranted for consideration of pending motions,
pleading amendments, and joinder of additional defendants to
forestall ongoing injuries injuring Texas municipalities via SB 2038.

A. Pending motions in court were implicitly denied, or deemed
overruled by passage of time.

Bonham timely submitted a motion for leave to amend its pleadings

and join additional parties in the trial court, and allied co-plaintiff-intervenor

City of Anna had sought related relief (collectively “Pending Motions”):

• Joint Motion for Leave to Amend Petition to Join Additional Parties by
City of Bonham and City of Anna; 61
• [City of Anna’s] Motion to Modify, Correct, or Reform Judgment 62;

59 See C.R. 9082 (conclusion of Apr. 14 Order).
60 City of Anna’s timely motion to modify the judgment to address this issue (see C.R.
9156 at ¶ 6) was subject to deemed denial by TRCP 329b(c).
61 C.R. 8209-8233 (Vol. 32, p. 143-167). While it is represented in this appeal by common

legal counsel, issues unique the City of Bonham are beyond the scope of this brief.
62 C.R. 9153-9156 (Vol. 41, p. 3-6) (filed May 14, 2025).

19
• [City of Anna’s] Alternative Motion for New Trial 63

These Pending Motions stated the grounds for the ruling sought with

sufficient specificity to make the trial court aware of the appellants’

complaints.64 The trial court has implicitly denied the Pending Motions

requests by failing to provide any of the relief requested prior to these

appellate proceedings. The Pending Motions included a motion for a new

trial which was not determined by written order signed within 75 days from

the Apr. 14 Order, as such, it is deemed overruled, and error has been

properly preserved. 65

B. Bonham is entitled to amend pleadings, and potentially join
additional necessary parties, before closure of the case.

Bonham cannot concede that the trial court was correct in finding that

it lacked jurisdiction over the claims before it in the live pleadings, whether

they were raised in the Grand Prairie Group’s Fourth Amended Petition or

63 C.R. 9156-57 (Vol. 41, p. 6-7)(filed May 14, 2025).
64 Namely, that the Apr. 14 Order was overly broad in finding no jurisdiction existed over
any of Anna’s claims, and that no additional proceedings were warranted to join
necessary parties before closing the case. See generally Pending Motions; Tex. Civ.
Prac. & Rem. Code 37.006 (mandating joinder of all interested parties in declaratory
judgment cases).
65 C.R. 9156-57 (Vol. 41, p. 6-7). The 75th day after the signing of the Apr. 14 Order was
June 28, 2025. See TRAP 33.1(b) (civil case preservation of error for both motions for
new trial and motions to modify judgment if overruled) and TRCP 329b(c) (providing
that motions for new trial are overruled unless “determined by written order signed
within 75 days after the judgment is signed”).

20
were within Bonham’s alone. 66 In part, it is unavoidable due to the lack of

detail in the Apr. 14 Order. 67

But even presuming arguendo that jurisdictional defects existed as to

each and every claim raised by Bonham, all Texas plaintiffs are entitled to

amend their pleadings prior to a final dismissal. If the absence of a necessary

party—such various subordinate agencies and officials within the State of

Texas who are enforcing, or threatening to enforce, SB 2038 in a manner

more direct than the instant appellees—it is long-established that a trial court

“may and will” by its own motion stay proceedings until such parties are

brought in “to properly adjust equities and prevent multiplicity of suits.” 68

Bonham anticipates that the State of Texas and other defendants will

contend that remand for further proceedings is a waste of resources, since

none of them are expressly named as enforcement agents in SB 2038.

66 As noted infra, Bonham adopts and incorporates the authorities and legal reasoning
set forth in the Grand Prairie Group’s brief in this appeal with respect to the claims
common between the Fourth Amended Petition and Bonham’s independent pleading.
In the interests of judicial economy, it does not repeat them here.
67 The trial court used the single word “GRANTED” as the decision, followed by the
direction that “all claims by Plaintiffs and Intervenor-Plaintiffs against [named
defendants] are DISMISSED without prejudice.” C.R. 9081 (Vol. 40, p. 60). The Grand
Prairie Group’s motion for summary judgment was denied “as moot because the court
lacks jurisdiction”, but it is impossible to determine what aspect of the various plaintiffs’
separate pleadings was lacking. See generally C.R. 9081-82.
68 Ball v. Cundiff, 127 S.W.2d 502 (Tex. Civ. App.—Fort Worth 1939, writ dism’d judgm’t
cor.).

21
Bonham would have preferred to have all necessary parties before the trial

court to resolve the merits of SB 2038’s validity last year. However, the State

refuses to either plainly state that none of its constituent agencies or officials

are empowered enforce SB 2038, or identify which parties would be suitable

for inclusion in this suit—instead, Bonham and other plaintiff cities are met

at every turn with prevarication and temporal obfuscation regarding how SB

2038 has affected the activities of state agents.

It has been extremely disappointing that thousands of pages of legal

briefing is preferable to the State over providing substantive and non-evasive

responses to matters as simple as initial disclosures. Co-plaintiff Grand

Prairie obtained an order from the trial court to compel the State of Texas to

provide jurisdictional discovery. 69 But rather than disclose information

certainly known to the State with respect to who has power to enforce SB

2038 (if anyone does), only the following was provided70:

69 C.R. 4742-43 (“Order Granting Plaintiffs’ Motion to Compel Discovery”, signed June
25, 2024). This order imposed a deadline of August 5, 2024 for the State of Texas to
provide overdue mandatory disclosures, but only as to TRCP 194.2(b)(2) and
194.2(b)(12). Id.
70 C.R. 8231 (Vol. 32, p. 165)(served Aug. 7, 2024). The content which follows between

section divider lines appears as set forth therein.

22
DEFENDANT'S INITIAL DISCLOSURES

(2) The name, address, and telephone number of any potential parties.

RESPONSE:

The State of Texas is currently unaware of any potential parties
because the Court lacks subject-matter jurisdiction over this suit.
Notwithstanding the foregoing, other petitioners identified by
Plaintiffs as submitting ETJ release petitions could be potential
parties in the proper venue. At this time, the State of Texas is not
aware of any state governmental entity or state official that has
enforced or threatened enforcement of S.B. 2038 against any
Plaintiff and is, thereby, a potential proper party.

(12) The name, address, and telephone number of any person who may be
designated as a responsible third party.

RESPONSE:

The State of Texas is currently unaware of any potential
responsible third parties.

Rather than meet the call of the trial court’s order, the State has elected

to extend this litigation by providing only a circular, absurdist, non-

substantive legal conclusions: it will not reveal its subordinate agency

activities relating to SB 2038 because the State prefers to believe that there

23
is not jurisdiction. 71 Instead, it suggests that the necessary defendants are

those “submitting ETJ release petitions” in reliance on an unconstitutional

and incomplete statutory scheme adopted by the State of Texas.72 This is

antithetical to the objectives and requirements of the TDJA provisions stating

“all persons who have or claim any interest that would be affected by the

declaration must be made parties.”73

Bonham, similar to the many other plaintiff-municipalities in this suit,

had been hoping to forestall the necessity of dragging more landowners into

prolonged constitutional litigation over SB 2038. 74 It does not seem to serve

justice (or the interests of any Texans) for the Texas Legislature to adopt

71 See id. at (2). Taken in the context of the instant case and Texas jurisprudence
regarding third party responsibility, the response provided for (12) above is not
surprising.
72 See id.
73 Tex. Civ. Prac. & Rem. Code § 37.006 (a) This statute does not describe a specific
person who is responsible for taking actions to ensure the appropriate persons are
“made parties.” But the statute is mandatory in nature and the State—has knowledge
of which of its constituent (and in many cases, legally identical) officials and
departments “have or claim any interest” in the SB 2038 declarations sought by
Bonham and others, and certainly could figure that out with little effort. While there
may be reasonable basis to believe that the State is not obligated to submit its own
filings to join these necessary parties in the instant suit, it should not be sufficient for
the State to conceal mandatory disclosure information on the basis of a unilateral
conclusion that jurisdiction doesn’t exist.
74 Defendant-intervenor LTTI is a landowner and ETJ-release petitioner as to the City of
Denton (part of the GP Group). The State’s desperate efforts to prevent timely
evaluation of the merits of SB 2038 included striking the pleadings of LTTI, despite it
being exactly the type of “potential party” they describe in their disclosures. See C.R.
8231.

24
incomplete laws without enforcement mechanisms or provisions assigning

responsibility for necessary component tasks, thus baiting private parties into

submitting ineffective petitions under an unconstitutional and incoherent

scheme. Per the State, municipalities must drag petitioners into court to

resolve what are essentially pure questions of law (with respect to

constitutional limitations of Legislative authority), in service to some

Legislative experiment in evading judicial review by creating statutes that are

enforceable by no one at all. This seems to be especially absurd result

where the Texas Attorney General must be served with all such suits,

is entitled to be heard, and has never disclaimed defense of the

constitutionality of SB 2038.75 There is also no assurance that the State’s

preferred party-joinder approach would actually resolve the merits of the

statute, as the landowner-petitioner might concede to a municipal suit prior

to any published decision on the constitutionality of SB 2038. It would further

contribute to a multiplicity of suits, with dozens of district judges hearing

claims from cities all across Texas, and potentially require repetition in every

75 See Tex. Civ. Prac. & Rem. Code § 37.006 (TDJA provision requiring AG service when

statute is constitutionally challenged); see also Tex. Gov’t Code § 402.021 (AG must
prosecute and defend all actions “in which the state is interested” in appellate courts).
This seems to compel the intervention of the State in any SB 2038-related case
between a municipality and petitioner which involves constitutional issues (at the first
appellate stage if not earlier).

25
individual Texas Court of Appeals to reach a single, statewide ruling on the

validity of the statute. Bonham suggests that this court pay heed to what was

said in Ball v. Cundiff:

When in the development of the case it is found that additional parties
are necessary in order to properly adjust equities and prevent
multiplicity of suits, the court of its own motion may and will stay
proceedings until such parties are brought in. Indeed it has been
decided that the court commits fundamental error in proceeding
to a final judgment without the presence of essential parties.76

It has been long established by the Texas Supreme Court that unless

the pleadings “affirmatively demonstrate an incurable jurisdictional defect” it

is appropriate to reverse and remand the case to provide an opportunity to

amend pleadings. 77 Plaintiffs are entitled to amend after a court rules on

a plea to the jurisdiction.78 If the issue is merely a pleading deficiency, an

opportunity to amend is described as “a matter of right.” 79 As such, the Apr.

76 Ball, 127 S.W.2d 502, 504 (Tex. Civ. App.—Fort Worth 1939, writ dism’d judgm’t
cor.)(italics and bold added); citing 32 Tex. Jur., par. 67, p. 105 (this statement is
“sustained by numerous decisions cited”).
77 County of Cameron v. Brown, 80 S.W.3d 549, 558-59 (Tex. 2002).
78 Texas A&M Univ. Sys. V. Koseoglu, 233 S.W.3d 835, 839-840 (Tex. 2007)(agreeing
with court of appeals that “a plaintiff may stand on his pleadings in the face of a plea
to the jurisdiction unless and until a court determines that the plea is
meritorious.”)(emphasis added); see also 167 S.W.3d 374 (Tex. App.—Waco 2005,
aff’d in part, rev’d in part by 233 S.W.3d 835) (remanding case to trial court for further
proceedings).
79 County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)(everything except
demonstration of incurable defects in jurisdiction is “an issue of pleading sufficiency”);
see also Brown at 558-59. (citing 7 William V. Dorsaneo III, Texas Litigation Guide §
70.03[4][f]).

26
14 Order should be reversed in whole or in part and the case remanded for

further proceedings.

Issue 3+: Bonham incorporates by reference the Issues Presented by
co-appellants City of Grand Prairie, et al., as to all those matters
applicable to all Texas municipalities.

Contemporaneously with Bonham’s submission of this brief, the Grand

Prairie Group is filing its appellant brief in this case, which discusses at length

the facts and authority relating to the jurisdictional (standing) arguments of

the State’s Plea which were granted in the Apr. 14 Order. Rather than restate

those matters herein (and in hopes of reducing the length of filings in a case

which already features a quite voluminous record), Bonham adopts by

reference, in accordance with TRAP 9.7, the following aspects of the Grand

Prairie Group filings:

A. All factual allegations common to all Texas municipalities (i.e., to the

exclusion of factual allegations specific to certain municipalities joined

in the GP Group brief);

B. Arguments and legal authorities relating to all issues of standing and

sovereign immunity, including without limitation the “one-party

standing” rule, but excluding those matters specific to the Aubrey

Municipal Development District (“AMDD”).

27
Should it appear necessary to avoid confusion of party positions and issues

as the appellate proceedings continue, Bonham would file an amendment or

supplement to this brief which provides greater specificity regarding the

content it adopts herein once the referenced filing has been submitted by its

co-plaintiff-appellants.80

To those incorporated arguments, Bonham would add or clarify the

following particulars which relate to the standing and immunity issues

implicated by this appeal:

1. Bonham does not claim status identical to the “Contract Cities” within

the GP Group (Burleson, Aledo, and Hutto)81, but likely is party to a

variety of delayed-annexation agreements with local property owners.

2. Bonham does not adopt the arguments specific to the AMDD.

3. Bonham emphasizes that with respect to the applicable standards of

review for Article III standing and the Ex parte Young immunity

analysis, discussed in detail in the GP Group brief, that the standing

threshold applicable to this appeal is least demanding of them. As

80 See generally TRAP 38.7 (brief may be amended or supplemented whenever justice
requires, on whatever terms the court may prescribe). Bonham respectfully requests
that the court specify appropriate terms for additional briefing if further detail regarding
its incorporation of other party’s arguments is desired.
81 In particular, Bonham does not believe that to date it has received an ETJ release
petition which would affect a property currently subject to a delayed annexation
agreement, which may set it apart from the GP Group “Contract Cities” in that sense.

28
such, the prevarications of the Texas Attorney General and artful

temporal phrasing in their filings should not be sufficient to eliminate

standing.

4. Bonham would emphasize that the posture of this case requires

allegations in plaintiffs’ pleadings to be taken as true, which it believes

should include the allegations that constitutional injuries have

occurred. Unless evidence is supplied by a defendant to that would

negate the existence of jurisdiction, the Court need only look to the

plaintiffs’ pleadings. Stated another way: determinations of the

constitutionality of SB 2038 are the merits of this case, which have yet

to be considered by the trial court. 82

5. Bonham substitutes its own Prayer for relief, provided infra.

PRAYER
Bonham respectfully requests that this Court reverse the judgment of

the trial court embodied by the Apr. 14 Order, and either render judgment

denying the State’s Plea in its entirety or in part, and/or remand the case to

the court below for further proceedings regarding the claims outside of the

82 See generally “Standard of Review”, supra. By analogy, a defendant should not be
able to negate jurisdiction in a Fourth Amendment excessive force case merely by
arguing that the plaintiff’s pleadings do not conclusively prove that the acts of
violence alleged actually occurred and resulted in plaintiffs’ injury, or failing to carry
some burden of persuasion regarding the merits of their claims.

29
State’s Plea, resolution of the Pending Motions, and to provide Bonham and

other plaintiffs with their right to amend their pleadings, and ultimately for

determination of the enforceability of SB 2038.

Respectfully Submitted,

/s/ David Overcash
David Overcash

30
CERTIFICATE OF SERVICE

The undersigned hereby certifies that counsel of record who are

deemed to have consented to electronic service are being served with a copy

of Appellant’s Brief, via the Court’s CM/ECF system on August 15, 2025.

/s/ David Overcash
David Overcash

CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using

Microsoft Word and contains less than 6,500 words, as determined by the

computer software’s word-count function, excluding the sections of the

documents listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ David Overcash
David Overcash

31
APPENDIX
SB 2038 ............................................................................. 1

Order on Pending Motions (Apr. 14, 2025) ........................ 2

32
Appendix 1

Eighty-Eighth Texas Legislature, 2023 Regular Session
S.B. No. 2038
RELEASE OF AN AREA FROM A MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION BY PETITION OR
ELECTION

AN ACT
relating to release of an area from a municipality's extraterritorial jurisdiction by petition or election.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 42, Local Government Code, is amended by adding Subchapters D and E to read as follows:

SUBCHAPTER D. RELEASE OF AREA BY PETITION OF LANDOWNER OR RESIDENT FROM
EXTRATERRITORIAL JURISDICTION

[Note: TX LOCAL GOVT § 42.101]

Sec. 42.101. APPLICABILITY. This subchapter does not apply to an area located:

(1) within five miles of the boundary of a military base, as defined by Section 43.0117, at which an active training program is
conducted;

(2) in an area that was voluntarily annexed into the extraterritorial jurisdiction that is located in a county:

(A) in which the population grew by more than 50 percent from the previous federal decennial census in the federal
decennial census conducted in 2020; and

(B) that has a population greater than 240,000;

(3) within the portion of the extraterritorial jurisdiction of a municipality with a population of more than 1.4 million that is:

(A) within 15 miles of the boundary of a military base, as defined by Section 43.0117, at which an active training
program is conducted; and

(B) in a county with a population of more than two million;

(4) in an area designated as an industrial district under Section 42.044; or

(5) in an area subject to a strategic partnership agreement entered into under Section 43.0751.

[Note: TX LOCAL GOVT § 42.102]

Sec. 42.102. AUTHORITY TO FILE PETITION FOR RELEASE. (a) A resident of an area in a municipality's extraterritorial
jurisdiction may file a petition with the municipality in accordance with this subchapter for the area to be released from the
extraterritorial jurisdiction.

(b) The owner or owners of the majority in value of an area consisting of one or more parcels of land in a municipality's
extraterritorial jurisdiction may file a petition with the municipality in accordance with this subchapter for the area to be
released from the extraterritorial jurisdiction.

[Note: TX LOCAL GOVT § 42.103]

SB 2038 – 88th Texas Legislature – Effective 9/1/23 - Page 1 of 4
Sec. 42.103. APPLICABILITY OF OTHER LAW. Chapter 277, Election Code, applies to a petition requesting removal
under this subchapter.

[Note: TX LOCAL GOVT § 42.104]

Sec. 42.104. PETITION REQUIREMENTS. (a) A petition requesting release under this subchapter must be signed by:

(1) more than 50 percent of the registered voters of the area described by the petition as of the date of the preceding
uniform election date; or

(2) a majority in value of the holders of title of land in the area described by the petition, as indicated by the tax
rolls of the applicable central appraisal district.

(b) A person filing a petition under this subchapter must satisfy the signature requirement described by Subsection (a) not
later than the 180th day after the date the first signature for the petition is obtained.

(c) A signature collected under this section must be in writing.

(d) The petition must include a map of the land to be released and describe the boundaries of the land to be released by:

(1) metes and bounds; or

(2) lot and block number, if there is a recorded map or plat.

[Note: TX LOCAL GOVT § 42.105]

Sec. 42.105. RESULTS OF PETITION. (a) A petition requesting removal under this subchapter shall be verified by the
municipal secretary or other person responsible for verifying signatures.

(b) The municipality shall notify the residents and landowners of the area described by the petition of the results of the
petition. The municipality may satisfy this requirement by notifying the person who filed the petition under Section 42.102.

(c) If a resident or landowner obtains the number of signatures on the petition required under Section 42.104 to release the
area from the municipality's extraterritorial jurisdiction, the municipality shall immediately release the area from the
municipality's extraterritorial jurisdiction.

(d) If a municipality fails to take action to release the area under Subsection (c) by the later of the 45th day after the date the
municipality receives the petition or the next meeting of the municipality's governing body that occurs after the 30th day after
the date the municipality receives the petition, the area is released by operation of law.

(e) Notwithstanding any other law, an area released from a municipality's extraterritorial jurisdiction under this section may
not be included in the extraterritorial jurisdiction or the corporate boundaries of a municipality, unless the owner or owners of
the area subsequently request that the area be included in the municipality's extraterritorial jurisdiction or corporate
boundaries.

SUBCHAPTER E. RELEASE OF AREA BY ELECTION FROM EXTRATERRITORIAL JURISDICTION

[Note: TX LOCAL GOVT § 42.151]

Sec. 42.151. APPLICABILITY. This subchapter does not apply to an area located:

(1) within five miles of the boundary of a military base, as defined by Section 43.0117, at which an active training
program is conducted;

(2) in an area that was voluntarily annexed into the extraterritorial jurisdiction that is located in a county:

(A) in which the population grew by more than 50 percent from the previous federal decennial census in
the federal decennial census conducted in 2020; and

SB 2038 – 88th Texas Legislature – Effective 9/1/23 - Page 2 of 4
(B) that has a population greater than 240,000;

(3) within the portion of the extraterritorial jurisdiction of a municipality with a population of more than 1.4 million
that is:

(A) within 15 miles of the boundary of a military base, as defined by Section 43.0117, at which an active
training program is conducted; and

(B) in a county with a population of more than two million;

(4) in an area designated as an industrial district under Section 42.044; or

(5) in an area subject to a strategic partnership agreement entered into under Section 43.0751.

[Note: TX LOCAL GOVT § 42.152]

Sec. 42.152. AUTHORITY TO REQUEST ELECTION FOR RELEASE. (a) A resident of an area in a municipality's
extraterritorial jurisdiction may request the municipality to hold an election in accordance with this subchapter to vote on the
question of whether to release the area from the municipality's extraterritorial jurisdiction by filing with the municipality a
petition that includes the signatures of at least five percent of the registered voters residing in the area as of the date of the
preceding uniform election date.

(b) A resident may not request another election on the question of releasing the same or substantially same area from the
municipality's extraterritorial jurisdiction before the second anniversary of the date the municipality receives a petition filed
under Subsection (a).

(c) The petition must include a map of the land to be released and describe the boundaries of the land to be released by:
(1) metes and bounds; or

(2) lot and block number, if there is a recorded map or plat.

[Note: TX LOCAL GOVT § 42.153]

Sec. 42.153. ELECTION. (a) Except as provided by Section 42.156, a municipality shall order an election on the question of
whether to release an area from the municipality's extraterritorial jurisdiction to be held on the first uniform election date that
falls on or after the 90th day after the date the municipality receives a petition that complies with Section 42.152.

(b) The municipality shall hold the election ordered under this section in the area described by the petition at which the
qualified voters of the area described by the petition may vote on the question of the release.

(c) An election ordered under this section must be held in the same manner as general elections of the municipality. The
municipality shall pay for the costs of holding the election.

[Note: TX LOCAL GOVT § 42.154]

Sec. 42.154. RESULTS OF ELECTION. (a) The governing body of a municipality shall canvass the election returns for an
election held under this subchapter in accordance with Chapter 67, Election Code.

(b) Not later than 48 hours after the canvass of an election held under this subchapter, the municipality shall notify the
residents of the area proposed to be released from the municipality's extraterritorial jurisdiction of the results of the election.
The municipality may satisfy this requirement by notifying the person who filed the petition under Section 42.152.

[Note: TX LOCAL GOVT § 42.155]

Sec. 42.155. RELEASE OF AREA AS RESULT OF ELECTION. (a) If at the election held under this subchapter a majority
of qualified voters of the area to be released approve the proposed release, the municipality shall immediately release the area
from the municipality's extraterritorial jurisdiction.

SB 2038 – 88th Texas Legislature – Effective 9/1/23 - Page 3 of 4
(b) If the municipality fails to take action to release the area under Subsection (a) by the later of the next meeting of the
municipality's governing body or the 15th day after the canvass date for the election, the area is released by operation of law.

(c) Notwithstanding any other law, an area released from a municipality's extraterritorial jurisdiction under this section may
not be included in the extraterritorial jurisdiction or the corporate boundaries of a municipality, unless the owner or owners of
the area subsequently request that the area be included in the municipality's extraterritorial jurisdiction or corporate
boundaries.

[Note: TX LOCAL GOVT § 42.156 ]

Sec. 42.156. VOLUNTARY RELEASE. Instead of holding an election under Section 42.153, the municipality may
voluntarily release the area for which the election is to be held from the municipality's extraterritorial jurisdiction before the
date on which the election would have been held under Section 42.153(a).

SECTION 2. Section 42.021, Local Government Code, is amended by adding Subsection (e) to read as follows:

[ Note: TX LOCAL GOVT § 42.021]

(e) An annexation commenced after January 1, 2023, does not expand the extraterritorial jurisdiction of a municipality unless
contemporaneously with the annexation the owner or owners of the area that would be included in the municipality's
extraterritorial jurisdiction as a result of the annexation request that the area be included in the municipality's extraterritorial
jurisdiction.

SECTION 3. Section 242.001, Local Government Code, is amended by adding Subsection (j) to read as follows:
(j) If an area subject to an agreement under Subsection (c) is removed from a municipality's extraterritorial jurisdiction, the
agreement is terminated as to the area and the county is the political subdivision authorized to regulate subdivisions in the
removed area.

[Note: TX LOCAL GOVT § 42.021]

SECTION 4. A municipality shall release extraterritorial jurisdiction acquired from an annexation commenced after January 1,
2023, as necessary to comply with Section 42.021(e), Local Government Code, as added by this Act.

SECTION 5. This Act takes effect September 1, 2023.

Passed the Senate on April 27, 2023: Yeas 20, Nays 11; the Senate concurred in House amendments on May 8, 2023: Yeas 20,
Nays 11; passed the House, with amendments, on May 3, 2023: Yeas 127, Nays 18, one present not voting.

Approved May 19, 2023.
Effective September 1, 2023.

SB 2038 – 88th Texas Legislature – Effective 9/1/23 - Page 4 of 4
04/14/2025 09:33:24 AM
Appendix 2 Velva L. Price
District Clerk
Travis County
D-1-GN-23-007785
CAUSE NO. D-1-GN-23-007785

CITY OF GRAND PRAIRIE et al., § IN THE DISTRICT COURT
§
Plaintiffs, §
§ TRAVIS COUNTY, TEXAS
and CITY OF BROWNSVILLE, et al., §
Intervenor-Plaintiffs, §
§
v. § 261ST JUDICIAL DISTRICT
§
The STATE OF TEXAS, et al., §
§
Defendants, §
§
and 2020 Long Tail Trail Investments, §
LLC, §
Intervenor-Defendant. §

ORDER ON PENDING MOTIONS

Before the Court is State Defendants’ Amended Plea to the Jurisdiction, the State’s

Motion to Strike 2020 Long Tail Trail Investments, LLC’s Original Petition in Intervention,

Plaintiffs’ Motion for Leave to File Supplemental Petition, Plaintiffs’ Amended Motion for

Summary Judgment, and Long Tail’s Amended Motion for Summary Judgment. Upon

consideration of the Motions, the Court has determined each the following:

IT IS HEREBY ORDERED that:

• Plaintiffs’ Motion for Leave to File Supplemental Petition is GRANTED;

• The State’s Motion to Strike 2020 Long Tail Trail Investments, LLC’s Original
Petition in Intervention is GRANTED;

• State Defendants’ Amended Plea to the Jurisdiction is GRANTED and all claims by
Plaintiffs and Intervenor-Plaintiffs against the State of Texas, Attorney General
Ken Paxton, Comptroller Glenn Hegar, and the Office of Comptroller of Public
Accounts are DISMISSED without prejudice.
IT IS FURTHER ORDERED that:

• Plaintiffs’ Amended Motion for Summary Judgment is DENIED as moot because
the court lacks jurisdiction.

• Long Tail Trail’s Amended Motion for Summary Judgment is DENIED as moot
because the Court grants the State’s Motion to Strike the Intervention.

This order resolves all pending claims and closes the case.

14th day of ___________,
SIGNED on this the ____ April 2025.

______________________________
JUDGE MARIA CANTÚ HEXSEL
AGREED AS TO FORM AND SUBSTANCE:

/s/ Allison Collin by permission_________________
Allison Collins
Assistant Attorney General
State Bar No. 24127467
Counsel for State of Texas
Defendant

AGREED AS TO FORM (ONLY):

/s/ Timothy A. Dunn__________________
Timothy A. Dunn
Attorney
State Bar No. 24050542
Counsel for Plaintiff Cities

/s/ William Thompson by permission________
William Thompson
Attorney
State Bar No. 24088531
Counsel for Intervenor 2020 Long Tail Trail Investments, LLC

_________________________
David Overcash
Attorney
State Bar No. 24075516
Counsel for Intervenors City of Anna and City of Bonham

________________________________
Matthew L. Weston
Attorney
State Bar No. 24037698
Counsel for Intervenor City of Cibolo
/s/ Lena Chaisson-Munoz by permission_______
Lena Chaisson-Munoz
Attorney
State Bar No. 24044743
Counsel for Intervenor City of Brownsville
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Crystal Adams on behalf of David Overcash
Bar No. 24075516
cadams@wtmlaw.net
Envelope ID: 104452265
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellant - Intervenor Plaintiff City of Bonham
Status as of 8/15/2025 4:22 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Allison Collins 24127467 Acollins@fosterswift.com 8/15/2025 3:51:14 PM SENT

Lena Chaisson-Munoz lena.munoz@brownsvilletx.gov 8/15/2025 3:51:14 PM SENT

Raymond Abarca Raymond.Abarca@oag.texas.gov 8/15/2025 3:51:14 PM SENT

Cole Wilson Cole.Wilson@oag.texas.gov 8/15/2025 3:51:14 PM SENT

Will S.Trevino will.trevino@brownsvilletx.gov 8/15/2025 3:51:14 PM SENT

Sherry Brown sherry@txmunicipallaw.com 8/15/2025 3:51:14 PM SENT

Andy Messer andy@txmunicipallaw.com 8/15/2025 3:51:14 PM SENT

Brad Bullock brad@txmunicipallaw.com 8/15/2025 3:51:14 PM SENT

Timothy Dunn Taddunn@txmunicipallaw.com 8/15/2025 3:51:14 PM SENT

Todd Disher todd@lehotskykeller.com 8/15/2025 3:51:14 PM SENT

William Thompson will@lkcfirm.com 8/15/2025 3:51:14 PM SENT

Cole Wilson cole.wilson@oag.texas.gov 8/15/2025 3:51:14 PM SENT

Guillermo Trevino will.trevino@brownsvilletx.gov 8/15/2025 3:51:14 PM SENT

Lena Chaisson-Munoz lena.munoz@brownsvilletx.gov 8/15/2025 3:51:14 PM SENT

George Hyde ghyde@txlocalgovlaw.com 8/15/2025 3:51:14 PM SENT

Matthew Weston mweston@txlocalgovlaw.com 8/15/2025 3:51:14 PM SENT

David Overcash david.overcash@wtmlaw.net 8/15/2025 3:51:14 PM SENT

Clark McCoy cmccoy@wtmlaw.net 8/15/2025 3:51:14 PM SENT