Ackers v. Lubbock
In Ackers v. Lubbock, 253 S.W.3d 770, 774-76 (Tex. App.--Amarillo 2007, pet. denied), the Amarillo Court of Appeals considered the interplay between section 37.004(a) and section 37.003(c)
In that case, Ackers sued the City of Lubbock, requesting twenty-three declarations, including one that the Lubbock Police Department's policy requiring that parental permission be obtained before photographs of minors may be taken was unconstitutional. Id. at 774-75.
The trial court sustained Lubbock's plea to the jurisdiction on governmental immunity grounds, but the court of appeals reversed, concluding that Lubbock's immunity had not been waived even though Ackers's request for declaratory relief did not fall squarely within the enumerations of civil practice and remedies code section 37.004. Id. at 775.
The court of appeals reasoned in relevant part as follows:
"While Ackers's challenge of the constitutionality of the City's policy is not specifically identified in section 37.004(a), we conclude that the failure of the section to specifically list a city's policy as being capable of challenge by declaratory action does not mean that such an action is barred by governmental immunity. . . . We conclude that the primary declaration sought by Ackers in the present case will remove uncertainty regarding rights and will resolve the controversy regarding whether the City's policy is valid." Id.