In 2005, Gardens of Connemara and Emerson Farm Company (together, Connemara) burdened hundreds of acres with an obligation on every future purchaser to pay "a fee equal to 1% of the Value of the Conveyed Land," a private transfer fee payable on each sale.¹ In 2011 the Legislature voided most private transfer fees created on or after June 17, 2011, but gave a measure of protection to earlier ones: to keep its right to payment, the holder must file a "Notice of Private Transfer Fee Obligation" in the county real-property records, beginning in 2012 and every three years after, printed in at least 14-point boldface type and stating the legal description of the property.² Connemara filed notices in Collin County in 2012, 2015, 2018, and 2021.³ Longhorn Creek Ltd. bought acreage that Connemara says is subject to the fee.⁴

Longhorn Creek sued Connemara for a declaration that the fee is void, alleging primarily that the notices did not strictly comply with Property Code section 5.203(c), because they were not in 14-point boldface and omitted the legal description, and it attached the notices as exhibits to its amended petition.¹ It also alleged that Connemara waived the fee by releasing third parties from it in exchange for an increased payment, and that the fee does not "touch and concern the land".² The trial court granted Connemara's Rule 91a motion to dismiss; the Fifth Court of Appeals in Dallas reversed, considering only the amended petition and not the attached notices, and also ruled for Longhorn Creek on the waiver and touch-and-concern theories.³ Connemara petitioned for review on April 5, 2024, and Longhorn Creek responded on July 8, 2024 (Docket). The Court denied the petition on January 23, 2026, with Justice Young concurring in the denial (Docket).

Petition for review from the Fifth Court of Appeals, denied, with a concurring opinion by Justice Young filed January 23, 2026.⁴

Connemara presents three issues: whether the court of appeals erred by not considering the pleading exhibits attached to the live petition when ruling on a Rule 91a motion; whether it erred in holding that the waiver claim was not legally baseless when the only allegation was a release of other people's obligations; and whether it erred in holding that the request for a declaration that the fee must touch and concern the land was not legally baseless when the statute prescribes its own terms for validity.¹ Longhorn Creek restates them as whether the court of appeals correctly refused to consider exhibits that do not constitute the claim sued on (and whether any error was harmless), whether it correctly held the waiver claim adequately alleged, and whether it correctly held the touch-and-concern claim adequately alleged.² The concurrence frames the lead question as when a trial court must consider pleading exhibits in ruling on a Rule 91a motion, which depends on whether they constitute, "in whole or in part, the claim sued on".³

The briefs state no standard of review in their summaries. Under Rule 91a.6, a trial court decides the motion "based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59".¹

Whether the court of appeals had to consider the attached notices.

Petitioners (Connemara): The court of appeals' ruling conflicts with settled law permitting courts to consider pleading exhibits on a Rule 91a motion and erodes the rule as a tool for early dismissal; Longhorn Creek's claims are baseless because the notices, attached to its own pleading, strictly conformed to section 5.203.¹ They argue that Longhorn Creek alleged no facts showing waiver as to itself, because releasing others has no bearing on its own obligation, and that a request to void the fee under the common-law touch-and-concern requirement contravenes the statute.²

Respondent (Longhorn Creek): The court of appeals properly refused to consider the notices because they merely amplify the allegations and are not the claim sued on; even if considered, the notices did not comply, because the legal description was incorporated by reference to exhibits that were not in 14-point boldface; and the waiver and touch-and-concern claims are independent of the notices.³

Connemara argued that the court of appeals' ruling follows and expands the Dallas court's line of cases weakening Rule 91a as a procedural tool and raises a vitally important question of Texas jurisprudence.¹ Longhorn Creek argued that review should be denied because the court of appeals correctly reversed the dismissal.² The concurrence agrees that the Rule 91a question independently warrants review in a future case but not this one.³

None. The docket shows no amicus filings.

Reasoning

The Court gave no reasons for denying review; the only writing is Justice Young's concurrence, which is his view alone and not a holding of the Court.¹ He says the question of when pleading exhibits must be considered is important and the Court will likely need to resolve it, but this case is not the vehicle: even if the court below erred on Rule 91a, its judgment is independently supported by its rulings on waiver and touch-and-concern, and "a petition bets against itself" with each added issue.²

On the merits of the Rule 91a issue, he doubts the court of appeals' approach. A trial court "must" consider exhibits that constitute, in whole or in part, the claim sued on, and he thinks the court misunderstood City of Paris v. Bray (1915), because Longhorn Creek's claim is at least arguably constituted by the validity of the fee, which under section 5.203(c) hinges on the notices, so ignoring exhibits that could refute the lead theory as a matter of law would be impermissible.³ He commits to no view and says other courts of appeals should weigh in without deferring reflexively to the Fifth Court.⁴

On the other issues, he doubts that releasing third parties is "unequivocally inconsistent" with claiming the fee, but says that question is not clearly important to the state's jurisprudence.⁵ Whether the statute displaces the common-law touch-and-concern requirement has been addressed by no other court, would affect every private transfer fee that survived the 2011 revisions, and would benefit from more percolation in the lower courts.⁶

Disposition

Petition for review denied.⁷

Vote Breakdown

Justice Young concurred in the denial of the petition for review.⁸