Jump To

Top Caption Concurrence Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Jan. 23, 2026 Get Citation Alerts Download PDF Add Note

Gardens of Connemara Ltd. and Emerson Farm Company, Ltd. v. Longhorn Creek Ltd.

Texas Supreme Court

• Citations: None known

• Docket Number: 24-0271

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.3K)

• PDF

Concurrence Opinion

Supreme Court of Texas
══════════
No. 24-0271
══════════

Gardens of Connemara Ltd. and Emerson Farm Company, Ltd.,
Petitioners,

v.

Longhorn Creek Ltd.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE YOUNG, concurring in the denial of the petition for review.

This case raises the important question of when a trial court must
consider pleading exhibits appended to a petition in ruling on a Rule 91a
motion to dismiss. The answer depends on yet another question: whether
the pleading exhibits constitute, “in whole or in part, the claim sued on.”
Texas courts should carefully analyze these questions, and this Court will
likely need to resolve them in a future case—but not this one. I write
separately to address why the Rule 91a issue is important, why I have
some doubts about how the court of appeals resolved it here, and why
other issues in the case nonetheless would sufficiently complicate our
review as to warrant denial of this petition.
I

First, the facts. Longhorn Creek filed a declaratory-judgment suit
against Gardens of Connemara and Emerson Farm Company (together,
Connemara) seeking to avoid a private transfer fee. A private transfer
fee is “an amount of money . . . that is payable on the transfer of an
interest in real property or payable for a right to make or accept a
transfer.” Tex. Prop. Code § 5.201(4). The basis for the private transfer
fee here arose in 2005 when, ostensibly for the rest of time, Connemara
burdened every subsequent purchaser of hundreds of acres of land with
the obligation to pay Connemara “a fee equal to 1% of the Value of the
Conveyed Land.” A $100,000 house subject to the fee, for example,
would generate $1,000 for Connemara every time the house sold, no
matter how frequently or rarely.
Private transfer fees sound rather like the toll demanded by the
troll under the bridge in children’s fairy tales. The theory underlying
them is more benign: that imposing private transfer fees on future resales
of affected land may give real-estate developers an opportunity to
“spread[] the purchase price of property over time” and to “allocat[e] risk
and shar[e] profit from property development.” See Restatement (Third)
of Prop. (Servitudes): Indirect Restraints on Alienation and Irrational
Servitudes § 3.5 cmt. a (2000). Notwithstanding these commercial
benefits, critics of private transfer fees have argued that the covenants
“constitut[e] unsound public policy” because, among other reasons, they
impose “unwarranted transaction costs” that “com[e] at the expense of
the public.” E.g., R. Wilson Freyermuth, Putting the Brakes on Private
Transfer Fee Covenants, 24 Prob. & Prop. 20, 23–24 (2010).

2
The legislature has come down more on the side of the critics. In
2011, it passed, and the governor signed, a bill “relating to prohibiting
certain private transfer fees and the preservation of private real property
rights.” Act of May 24, 2011, 82d Leg., R.S., ch. 211, 2011 Tex. Gen. Laws
780, 780 (codified at Tex. Prop. Code §§ 5.201–.207). Through the new
statute, Texas law now “in large part prohibit[s] the use of private
transfer fees associated with real property transactions.” Tex. Att’y
Gen. Op. No. KP-0195, at 1 (2018). With certain exceptions, it ensures
that “a private transfer fee obligation created on or after [June 17, 2011] is
not binding or enforceable against a subsequent owner or subsequent
purchaser of an interest in real property and is void.” Tex. Prop. Code
§ 5.202(a).
The statute, however, affords a measure of protection to preexisting
private-transfer-fee obligations like the one that Connemara claims. See
generally id. § 5.203(a), (c)–(d), (f ). For Connemara to maintain its right
to the payments, beginning in 2012 and every three years thereafter, see
id. § 5.203(d)(1), it must file a “Notice of Private Transfer Fee
Obligation . . . in the real property records of [the] county in which the
[encumbered] property is located,” see id. § 5.203(a). Among other
things, the notice must (1) “be printed in at least 14-point boldface type”
and (2) “state the legal description of the property subject to the private
transfer fee obligation.” Id. § 5.203(c)(1), (8). To that end, Connemara
filed notices in Collin County’s real-property records in 2012, 2015, 2018,
and 2021.
Longhorn Creek purchased acreage that Connemara maintains is
subject to the private transfer fee. To escape its obligation, Longhorn

3
Creek seeks a declaration that the fee is void. Its primary allegation is
that the notices Connemara filed in the real-property records did not
strictly comply with § 5.203(c)—specifically, that they were not printed
in at least 14-point boldface type and failed to state the legal description
of the property subject to the obligation. Longhorn Creek’s amended
petition—and this is key—attached as exhibits the notices that
Connemara filed in 2012, 2015, 2018, and 2021.
Connemara filed a Rule 91a motion to dismiss, arguing that this and
Longhorn Creek’s other theories “ha[ve] no basis in law.” Tex. R. Civ. P.
91a.1. The trial court granted the motion, but the court of appeals
reversed. 686 S.W.3d 418, 430 (Tex. App.—Dallas 2024). Significantly, the
court of appeals reached this result while refusing to consider the actual
notices, which Longhorn Creek itself had appended and which are available
in the real-property records. The court instead “consider[ed] only Longhorn
Creek’s [amended petition].” Id. at 428–29 (emphasis added).
Connemara argues that this approach to Rule 91a was error.
According to Connemara, Longhorn Creek’s pleading exhibits “establish
that [Connemara] complied with the statutory notice requirements for
private transfer fees,” thus disposing of Longhorn Creek’s lead theory
for declaratory judgment. In other words, Connemara asserts, the court
of appeals should have decided the Rule 91a motion based on Longhorn
Creek’s amended petition “together with” the notices, see Tex. R. Civ. P.
91a.6, which “constitut[e], in whole or in part, the claim sued on,” id. R.
59 (emphasis added).
Longhorn Creek also advanced two entirely distinct theories that,
if meritorious, would (allegedly) defeat its obligation: (1) Connemara

4
waived the private-transfer-fee obligation by releasing third parties from
it in exchange for an increased transfer fee upon the sale of certain property;
and (2) the fee does not “touch and concern the land.” The court of appeals
ruled for Longhorn Creek on both of those issues, too. 686 S.W.3d at
429–30.

II

If the Rule 91a issue were the only one presented by the petition,
and if the issue had been fully aired in other courts of appeals,* this Court

• Connemara helpfully observes that courts of appeals have “consider[ed] pleading exhibits that are the subject of a declaratory judgment action” when ruling on a Rule 91a motion to dismiss. Pet. 8 (first citing Raider Ranch, LP v. Lugano, Ltd., 579 S.W.3d 131 (Tex. App.—Amarillo 2019, no pet.); then citing Parsley Mins., LLC v. Flat Creek Res., LLC, No. 03-21-00337-CV, 2023 WL 2052315 (Tex. App.—Austin Feb. 17, 2023, no pet.); and then citing Farr v. Barnes, No. 04-19-00895-CV, 2020 WL 6048770 (Tex. App.—San Antonio Oct. 14, 2020, no pet.)). Clearly, courts are enforcing Rule 91a.6 and excluding evidence from consideration when they deem it appropriate. E.g., City of Houston v. De La Cruz, No. 01-24-00797-CV, 2025 WL 3672311, at *5 (Tex. App.—Houston [1st Dist.] Dec. 18, 2025, no pet. h.); Brady v. Progressive Ins., No. 01-24-00446-CV, 2025 WL 3672309, at *1 n.1, *3 & n.2 (Tex. App.—Houston [1st Dist.] Dec. 18, 2025, no pet. h.); Neely v. Midland Cmty. Theater Bd. of Trs., No. 11-23-00152- CV, 2025 WL 284919, at *5–6 (Tex. App.—Eastland Jan. 24, 2025, no pet.); PBAC 507 Holdings, LLC v. Broadview Props., LLC, No. 03-23-00411-CV, 2024 WL 3974793, at *4 (Tex. App.—Austin Aug. 29, 2024, no pet.); cf. C.V.P.G. Fam. Tr. v. PlainsCapital Bank, No. 08-23-00320-CV, 2024 WL 2445793, at *5 n.5 (Tex. App.—El Paso May 23, 2024, no pet.) (noting that the parties did “not dispute that consideration of the exhibits attached to [the] petition . . . was proper” and agreeing with that conclusion); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 67 (Tex. App.—Texarkana 2004, pet. dism’d) (concluding, outside the Rule 91a context, that the contested pleading exhibit “form[ed] part of the [plaintiff’s] claim” and so was “incorporated into the pleadings”). But despite this broad awareness of Rule 91a.6, few if any opinions tackle the discrete issue of how to decide whether a particular pleading exhibit

5
may have had an attractive opportunity to clarify what Rule 91a requires
courts to consider when ruling on such a motion to dismiss. The question
matters because it affects the judiciary’s ability “to dismiss meritless
cases before the parties engage in costly discovery.” Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex.
2020). We could (and not infrequently do) grant review despite a
comparative lack of scrutiny from other courts. But here, even if we
conclude that the court below erred as to the Rule 91a issue, that
conclusion by itself would not affect the judgment, which is independently
supported by each of the three grounds reached by the court of appeals.
Of course, while we also frequently review cases with multiple
indispensable issues, a petition bets against itself in a court of discretionary
review with each additional issue that it presents. When this Court grants
review in multi-issue cases, it is often when, as here, the petitioner has no
choice. Connemara had to challenge each ground that could independently
sustain the judgment below. If it did not, it would not have actually
challenged the judgment at all. And for petitions that properly target the
lower court’s judgment while raising multiple issues, the indispensable
minimum is that at least one issue be important to the jurisprudence of
the State, which is what brings a case within our jurisdiction. See Tex.
Gov’t Code § 22.001(a). Sometimes several issues may independently
warrant the Court’s review under that standard. In other cases, the key
issue may be sufficiently important to merit taking a case that requires

“constitut[es], in whole or in part, the claim sued on,” Tex. R. Civ. P. 59, in the
Rule 91a context. Before this Court lays out the procedure that courts should
use when making that determination, we would benefit from further
consideration of that specific question by the courts of appeals.

6
us to resolve issues that, if raised by themselves, would not warrant
plenary review—but only if doing so would not clearly impede our ability
to resolve the lead issue that matters to the larger jurisprudence.
Sometimes satellite issues pose no problem at all, such as when their
resolution may be sufficiently obvious that we could affirm or reverse on
those grounds without much, or even any, discussion.
In my judgment, the Rule 91a question present in this case is the
one that independently warrants our review. The other issues would not
stop us from doing so, but at least one of them would benefit from more
percolation in the courts of appeals (just as the lead issue itself would).
Those additional questions, moreover, are not self-evidently simple; if we
could be sure that we could affirm or reverse on those issues without
comment, and thus focus exclusively on the lead issue, whether to grant
review would be a closer call. But as it stands, and after detailed
consideration over a lengthy period, I concur in the denial of the petition,
with these additional comments to emphasize my expectation that the
Court will, in time, properly take a case that implicates the lead issue here.

A

Connemara argues that the court of appeals should have considered
Longhorn Creek’s pleading exhibits, which show that its notices strictly
complied with § 5.203(c)—namely, that the notices provide the legal
description of the property in 14-point boldface type. The rule states that,
in deciding whether to grant a motion to dismiss, the trial court
may not consider evidence . . . and must decide the motion
based solely on the pleading of the cause of action, together
with any pleading exhibits permitted by Rule 59.
Tex. R. Civ. P. 91a.6 (emphasis added). Rule 59, in turn, provides that

7
[n]otes, accounts, bonds, mortgages, records, and all other
written instruments, constituting, in whole or in part, the
claim sued on, or the matter set up in defense, may be made
a part of the pleadings . . . and shall be deemed a part thereof
for all purposes. . . . No other instrument of writing shall
be made an exhibit in the pleading.
Id. R. 59 (emphasis added).
Thus, the trial court “must” consider pleading exhibits, id. R. 91a.6,
that “constitut[e], in whole or in part, the claim sued on,” id. R. 59. If the
exhibits satisfy this requirement, they “shall be deemed a part [of the
pleadings] for all purposes,” id. (emphasis added), and if they are not, they
should not “be made an exhibit in the pleading” in the first place, id.
Connemara argues that the notices that Longhorn Creek attached
to its amended petition constitute, at least “in part, the claim sued on.”
See id. As Longhorn Creek repeatedly recognizes, its “claim is that it is not
obligated to pay the Private Transfer Fee.” And Connemara emphasizes
that part of that claim—indeed, Longhorn Creek’s lead theory—is that the
private transfer fee is void because Connemara’s notices failed to strictly
comply with § 5.203(c)’s typographical and legal-description requirements.
Accordingly, Connemara says, Rule 91a required the trial court (and thus
the court of appeals) to decide Connemara’s motion to dismiss based on
the amended petition, treating its appended notices as part of that pleading.
The court of appeals disagreed. It “consider[ed] only Longhorn
Creek’s [amended petition],” 686 S.W.3d at 429 (emphasis added), to the
exclusion of the exhibits, reasoning that the notices “may be important
future evidence for some of Longhorn Creek’s allegations” but “cannot
be said to constitute the claim sued on,” id. at 428. Pleading exhibits,
the court said, are “dispositive of nothing without more.” Id. at 427

8
(quoting Davis v. Homeowners of Am. Ins. Co., No. 05-21-00092-CV,
2023 WL 3735115, at *5 n.6 (Tex. App.—Dallas May 31, 2023, no pet.)).
And because the notices apparently did not “imbue or augment the
allegations” within Longhorn Creek’s amended petition, the notices were
not pleading exhibits that the court could consider in ruling on the Rule
91a motion to dismiss. See id. at 427–28 (quoting Davis, 2023 WL 3735115,
at *5 n.6).
The court of appeals’ brief discussion relied on a 111-year-old
precedent of this Court. See id. at 428–29 (citing City of Paris v. Bray,
175 S.W. 432, 433 (Tex. 1915)). This Court has never once cited that case.
But it remains a precedent and, when applicable, binds the lower courts.
(Notably, from 1943 until this case, none of the courts of appeals has
cited City of Paris, either.) Even so, I doubt that City of Paris is helpful
to the conclusion reached by the court of appeals here.
In City of Paris, the Court held that a particular notice attached as
an exhibit to a petition did not “constitute, in whole or in part, the cause
of action sued on.” 175 S.W. at 433. There, the City had sued the Brays
“to recover the amount of a paving assessment,” but the paving
assessment itself was valid only if the City gave “notice.” Id. at 432. A
related ordinance permitted the City to publish the notice in the city
paper so long as it recited the name of each affected property owner—i.e.,
Mr. and Mrs. Bray. Id. at 432–33. Though the City alleged in its petition
that it “duly” published the notice, the notice that it attached as an exhibit
did not recite Mrs. Bray as a property owner. Id. at 433. The court of civil
appeals held that it “affirmatively appeared from the petition that Mrs.
Bray had no notice of the assessment,” so it was “void as to her.” Id. This

9
Court reversed, holding that the pleading exhibit was simply “evidence in
support of [the] allegations” that the notice “was duly given [to Mrs.
Bray].” Id. (emphasis added). The “cause of action,” we said, was
“constituted by the debt”—not the validity of the publication itself. See id.
Thus, the notice “could not be considered in testing the sufficiency of the
pleading,” and “the petition itself was sufficient on general demurrer.” Id.
To be clear, I agree that, despite its antiquity and apparent
desuetude, City of Paris is on point. Key to our decision was what Rule
59 now focuses on: whether the City’s pleading exhibit “constitute[d], in
whole or in part, the cause of action sued on.” Id. And key to the court
of appeals’ decision in the present case was whether Longhorn Creek’s
pleading exhibits “constitut[e], in whole or in part, the claim sued on.”
686 S.W.3d at 427 (citing Tex. R. Civ. P. 59, 91a.6). So I can see why the
court of appeals found it persuasive despite no party’s having discussed
or cited it in the briefing.
But it seems highly likely to me that the court of appeals
misunderstood City of Paris’s import. For example, Longhorn Creek’s
“claim sued on” is at least arguably “constitut[ed]” by the validity of the
private transfer fee, which under § 5.203(c) hinges (in part) on the validity
of the notices. Whether Connemara complied with the statute’s demands
to the letter is the whole ball game. With this understanding, the court
of appeals was obligated to determine whether the notices Longhorn
Creek attached to its amended petition complied with the statutory
requirements. If it could not resolve the matter based on the notices, that
would be one thing. But ignoring the pleading exhibits, which could
potentially refute the pleading’s allegations (indeed, its primary theory of

10
the case) as a matter of law, would be impermissible on this understanding
of the rules.
I do not see City of Paris as posing an obvious obstacle to that
understanding. In a case like that, a plaintiff seeks to recover the amount
of an assessment—to enforce the debt allegedly owed by the defendant.
The plaintiff’s cause of action, therefore, “has its origin in the provisions of
law governing the levy of the assessment.” City of Paris, 175 S.W. at 433.
True, as this Court put it in 1915, the particular assessment would be
“invalid” under the law “unless the owner of the property affected by it is
given notice . . . before it is imposed against him.” Id. But, we continued,
any document used [to provide the affected property owner
notice] was no more a written instrument constituting a
foundation for the cause of action than were the charter
provisions and ordinances of the city relating to such
assessments, and which embodied that requirement as a
part of the procedure essential to a valid levy.
Id. In other words, whether (or not) Mrs. Bray received the requisite notice
did not rise or fall with the City’s botched publication. See id. The Court
was clearly loath then, as I probably would be now, to let Mrs. Bray escape
the debts she incurred for “paving done in front of [her] property” by reason
that the City did not comply with every jot and tittle of just one mechanism
for providing the requisite notice. See id. at 432–33 (emphasis added).
Let us imagine instead that Mrs. Bray’s suit arose as an action
seeking a declaration (a procedural device available now, if not to the
Mrs. Bray of 1915) that the assessment was invalid. Suppose that the
sole basis for the demanded declaration is that the notice failed to recite
the plaintiff’s name as an affected property owner. And suppose further
that a law provides that the only possible way for the City to provide an

11
affected property owner with notice is via a newspaper publication that
lists the affected property owners by name. In support of her allegations,
this hypothetical Mrs. Bray attaches the notice as a pleading exhibit.
That notice would, I think, “constitute, in whole or in part, the cause of
action sued on,” id. at 433, because it was the document that made up and
formed the hypothetical declaratory-judgment claim. And if the City’s
Rule 91a motion to dismiss (also not available in 1915) argued that the
suit lacked a basis in fact or law because the notice did recite her name,
the court presumably would need to review the notice in ruling on the
motion (and in reviewing a lower court’s decision disposing of it).
All this to say, it is far from clear that the court of appeals was
right to treat Longhorn Creek’s declaratory-judgment action as anything
like the City’s suit to recover the amount of the paving assessment from
the Brays. And if it was not right to do so, then in weighing whether to
consider the notices attached to Longhorn Creek’s petition, the court of
appeals presumably should have wrestled with Longhorn Creek’s actual
“claim sued on.” See Tex. R. Civ. P. 59. Once it confirmed that Longhorn
Creek sought a declaration to void the private transfer fee, the court then
should have considered whether the notices Longhorn Creek attached as
pleading exhibits “constitut[ed]” that claim—“in whole or in part.” See id.
(emphasis added). Because part of the claim itself was that the notices
themselves failed to comply with § 5.203(c), thereby voiding the private
transfer fee, it was necessary for the court to consider them.
Instead, to justify an unduly narrow reading of Rules 91a and 59,
the court of appeals roused from its 81-year slumber a case that was born
during Woodrow Wilson’s first term and made its last public appearance

12
during Franklin D. Roosevelt’s third term. If my suspicion is correct, the
court of appeals not only misread City of Paris but also undermined the
judiciary’s ability “to dismiss meritless cases before the parties engage in
costly discovery.” Bethel, 595 S.W.3d at 656. (Costly discovery was also
not really a thing in 1915.) Indeed, it strikes me that “to obtain a just,
fair, equitable and impartial adjudication” of these parties’ rights “under
established principles of substantive law,” both courts and parties should
welcome constructions of our procedural rules that trim the fat from the
litigation process, as our rules demand. See Tex. R. Civ. P. 1.
Trimming the fat here was as easy as looking to see if the
allegations were consistent with their source material—and more
specifically, whether the notices themselves complied with the
requirements of the statute. If they did, then the allegations made by
Longhorn Creek—i.e., that the notices did not provide a legal description
of the property in 14-point boldface type—simply could not be true. In
such a situation, the allegations do not trump their source material, for
“[i]f a pleading attaches a legal instrument that forms the basis of the
plaintiff’s claims, the instrument itself controls over an allegation about
what the instrument says.” Tex. Tech Univ. Sys. v. Martinez, 691 S.W.3d
415, 433 (Tex. 2024) (Young, J., dissenting) (emphasis added).
But I commit myself to no view. My doubts might be allayed.
Maybe Rule 91a does preclude courts from considering pleading exhibits
like the ones at issue here. Aggravating the issue further is that this
Court has had no occasion to delineate whether a particular pleading
exhibit “constitut[es] . . . the claim sued on,” Tex. R. Civ. P. 59—beyond
City of Paris, that is, see 175 S.W. at 433; see also Bethel, 595 S.W.3d at

13
654 (noting that the class of pleading exhibits a court must consider when
ruling on a Rule 91a motion to dismiss is “narrow”).
Ideally, therefore, more courts of appeals will weigh in on the
question and provide their independent judgments. They should certainly
not reflexively defer to the Fifth Court’s decision on this issue. They should
follow it if and only if they find it persuasive. The court of appeals here,
in fact, doubled down on its own prior precedent, noting that courts “may”
consider pleading exhibits that “merely imbue or augment the allegations
of the pleadings to which they are attached.” 686 S.W.3d at 427 (quoting
Davis, 2023 WL 3735115, at *5 n.6). To the court, a pleading exhibit has
“no talismanic quality” and is “dispositive of nothing without more.” Id.
(quoting Davis, 2023 WL 3735115, at *5 n.6).
Is that view truly consistent with Rule 91a? Is it even consistent
with the court of appeals’ own understanding that Rule 91a dismissal is
appropriate where “the plaintiff has pleaded itself out of court”? See id.
at 426 (quoting In re Shire PLC, 633 S.W.3d 1, 18 (Tex. App.—Texarkana
2021, orig. proceeding). Could it really be that a pleading exhibit that
explicitly states the opposite of what the plaintiff’s pleading alleges is not
“dispositive” of the plaintiff’s case under any circumstances? How do
Connemara’s notices, which are a matter of public record, not potentially
have “talismanic quality” here, where Connemara asserts that they do
“contain[] the required legal description of the property” in “boldfaced
14-point type”? Would it not undermine Rule 91a for a court to give such
pleading exhibits the cold shoulder? Cf. Tex. R. Civ. P. 1.
In any event, once further percolation of this sort occurs, this Court
will likely need to address whether the lower courts are properly defining

14
the circumstances under which they must consider pleading exhibits when
deciding Rule 91a motions to dismiss. The answers to these questions are
undoubtedly “important to the jurisprudence of the state.” See Tex. Gov’t
Code § 22.001(a). Indeed, as Bethel put it, “[f]orcing parties to conduct
discovery when the claimant’s allegations”—and the claimant’s pleading
exhibits—“conclusively establish” that the defendant is entitled to
dismissal as a matter of law “would be a significant waste of state and
private resources.” 595 S.W.3d at 656. Such waste would flout the
legislature’s decision to afford litigants a unique procedural mechanism
to escape meritless claims brought by adversaries who have pleaded
themselves out of court. See King St. Patriots v. Tex. Dem. Party, 521
S.W.3d 729, 739 (Tex. 2017) (noting that “claims lacking genuine merit
may be resolved expeditiously under Rule 91a’s dismissal procedures”).
At the proper time and in a proper case, therefore, this Court
should clarify what must be considered when ruling on a Rule 91a
motion to dismiss.

B

But this is not the right case. Even setting aside the lack of
percolation about the Rule 91a issue, that issue is not all that this petition
raises. As I have described, Longhorn Creek also seeks a declaration that
the private transfer fee is void because Connemara waived it and because
it does not touch and concern the land. To determine whether the trial
court properly dismissed Longhorn Creek’s suit, we would have to
determine whether these two independent theories for declaratory
judgment have a basis in law, given the court of appeals’ resolution. The
circumstances further militate against doing so.

15
Start with the easier issue: Longhorn Creek’s waiver theory. After
Connemara burdened hundreds of acres of land with a private transfer
fee, buyers who purchase any portion of that land must pay Connemara
1% of the purchase price. Rather than collecting that private transfer
fee from certain third-party buyers, Connemara released them from the
obligation and instead collected a one-time payment in lieu of future
private transfer fees. Longhorn Creek says that “based on the intentional
selective release of parties from the Private Transfer Fee obligation,
[Connemara] ha[s] intentionally waived [its] right to collect Private
Transfer Fees” altogether.
I doubt this conduct is “unequivocally inconsistent with claiming
a known right.” Van Indep. Sch. Dist. v. McCarthy, 165 S.W.3d 351, 353
(Tex. 2005); see also Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471,
485 (Tex. 2017) (“Waiver is largely a matter of intent, and for implied
waiver to be found through a party’s actions, intent must be clearly
demonstrated by the surrounding facts and circumstances.” (emphasis
added) (quoting Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003))).
Far from “unequivocally inconsistent,” Connemara’s conduct in releasing
third parties is plainly consistent with its right to collect the private
transfer fee from buyers of the burdened property. Indeed, that it required
certain third parties to make a payment at all meant that it continued
to claim its “known right” to collect the fee. We could likely resolve this
case- and record-specific question contrary to the court of appeals. But
it is not clearly important to the jurisprudence of the State.
Longhorn Creek’s common-law theory, on the other hand, is not
so straightforward. Connemara asks us to reject Longhorn Creek’s

16
“suggestion that the private transfer fee amounts to a common law
covenant running with the land that must ‘touch and concern’ the land.”
Specifically, it argues that Property Code § 5.202’s “plain language”
shows that “private transfer fees are not required to benefit the property”
and apparently concedes that the common law would otherwise require
the private transfer fee to do so. All this means that, according to
Connemara, the Property Code “supersede[s] those common law
requirements.” But the court of appeals disagreed, reasoning that
Connemara “point[ed] to nothing in settled law providing that [Property
Code §§ 5.201–.207] directly conflict[] with the common law principles
raised by Longhorn Creek.” 686 S.W.3d at 429 (footnote omitted).
This Court has said that “[a]brogating common-law claims is
disfavored and requires a clear repugnance between the common law and
statutory causes of action.” Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12,
16 (Tex. 2000) (internal quotation marks omitted); see also United States
v. Texas, 507 U.S. 529, 534 (1993) (“In order to abrogate a common-law
principle, the statute must speak directly to the question addressed by
the common law.” (internal quotation marks omitted)). What that means
in practice, and as applied here, is less clear—and yet neither Connemara
nor Longhorn Creek nor even the court of appeals spent more than a few
paragraphs discussing this distinct issue. None identified any other court
that has considered the intersection between private transfer fees and
common-law property principles. It is not clear how or if resolving the
question would affect other common-law claims.
This Court’s potential answer to whether private transfer fees must
“touch and concern” the land unironically touches and concerns at least

17
every private transfer fee that survived the legislature’s 2011 revisions to
the Property Code. Rather than “deprive [the] lower courts of the chance
to weigh in on [this] important question[],” particularly considering the
potential for it to affect other questions in other areas of the law, I believe
we “would greatly benefit from the[ir] considered views.” United States
v. Texas, 599 U.S. 670, 694, 702 (2023) (Gorsuch, J., concurring). It may
turn out that this court of appeals got it right—or not. The point is that
Texas law will be better served if this Court considers the issue only after
more courts and counsel have done so first. The adversarial process’s
collective diligence will help this Court generate a well-informed decision
that provides clarity, rather than more confusion, in the law.
And, of course, if the issue never does come to us again, it means
that the private-transfer-fee issue will have turned out not to be significant
to the jurisprudence after all. If so, it will have been wise for us to avoid
making a precedent now that would not turn out to be useful for this
area of law but might (like the long-dormant City of Paris) turn out to
inadvertently cause trouble somewhere else.

---

For the foregoing reasons, I concur in the denial of the petition for
review. I await a better opportunity to put a finer point on what a court
must consider when ruling on a Rule 91a motion to dismiss.

Evan A. Young
Justice

OPINION FILED: January 23, 2026

18