Jose A. Garcia v. Carlos Abrego ( 2013 )


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  •                            NUMBER 13-11-00750-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    JOHN J. BOLL, ET AL.,                                                   Appellants,
    v.
    CAMERON APPRAISAL DISTRICT,                                                Appellee.
    On appeal from the 357th District Court
    of Cameron County, Texas.
    OPINION
    Before Justices Rodriguez, Benavides and Longoria
    Opinion by Justice Benavides
    We issued our original opinion in this cause on July 18, 2013.          Cameron
    Appraisal District filed a motion for rehearing en banc.   After due consideration, and
    within our plenary power, we sua sponte withdraw our previous opinion and judgment
    and substitute the following opinion and accompanying judgment in their place.                      See
    TEX. R. APP. P. 19.1. The District’s motion for rehearing en banc is denied as moot.
    By one issue, appellants, John J. Boll and others similarly situated,1 appeal the
    trial court’s denial of their motion for attorney’s fees under the Texas Uniform Declaratory
    Judgment Act (UDJA).             See generally TEX. CIV. PRAC. & REM. CODE ANN. §§
    37.001–.011 (West 2008). We dismiss for lack of jurisdiction.
    I.      BACKGROUND2
    Appellants filed a petition for judicial review and for declaratory relief against
    appellee Cameron Appraisal District (“the District”) regarding the District’s assessment of
    taxes upon exempt mobile homes/park homes allegedly assessed in violation of Texas
    Tax Code section 11.14 and challenging the constitutionality of taxing those trailer
    homes.      See TEX. TAX CODE ANN. §§ 11.14 (West 2008), 41.41(a)(4) (West 2008); see
    also TEX. CONST. art. VIII, § 1(d)(2).       Appellants filed their petition under chapter 42 of
    the tax code, see 
    id. § 42.01(a)(1)(A),
    and the UDJA, see generally TEX. CIV. PRAC. &
    REM. CODE ANN. §§ 37.001–.011 (West 2008).
    Pursuant to this Court’s ruling in Rourk v. Cameron Appraisal District, the District
    agreed that appellants were entitled to the exemptions under section 11.14.                   See 305
    1
    Named appellants are John J. Boll, Robert and Barbara Byrkit, Roberty D. and Alice Delaney,
    Virgil and Donna Dykstra, Duane C. Eich, Kenneth Figg, Loyd D. Graham, Jay and Mary Green, Donald and
    Henrietta Hashman, Dale and Marilyn Henderson, Leroy P. Henkemeyer, Robert and Sharon Kirkbride,
    Ray LeBrun, Donald and Wilma R. McFarland, Mrs. Roger (Julia) Meade, John and Lucy Morey, Frank and
    Janice Niese, Tommy and Linda Quick, Wayne E. and Shirley R. Sapaugh, Clem W. Smith, Dale and Dixie
    Spencer, Melvin Vanderhoff, Robert Vanthul, Ronald Vollrath, Leonard D. and Edith J. Walter, Don
    Basinger, Donna Brislawn, Henry and Maxine Estell, Marilyn D. Hammond, Hammond Owen Revocable
    Trust, C. Dewayne, and Carolyn J. Crawford.
    2
    This opinion is a companion appeal with Thora O. Rourk, et al. v. Cameron Appraisal Dist., Cause
    No. 13-11-00751-CV.
    
    2 S.W.3d 231
    (Tex. App.—Corpus Christi 2009, pet. denied) (Rourk II).                       The trial court
    signed a judgment effecting such agreement.                      However, the trial court denied
    appellants’ request for attorney’s fees under the UDJA.3 This appeal ensued.
    II.      ATTORNEY’S FEES
    By their sole issue, appellants assert that the trial court erred by denying their
    motion for attorney’s fees under the UDJA. See generally TEX. CIV. PRAC. & REM. CODE
    ANN. §§. 37.001–.011.
    A.      Jurisdiction
    As a preliminary matter, the District, as a political subdivision of the state, see
    TEX. TAX CODE ANN. § 6.01(c) (West 2008), asserts that it is immune from the present
    action under the UDJA because appellants’ requested declaratory relief is “redundant” to
    the relief provided by the tax code.4
    1. Standard of Review and Applicable Law
    A party asserting immunity to suit challenges the trial court’s jurisdiction.               Harris
    County Hosp. Dist. v. Tomball Reg. Hosp., 
    283 S.W.3d 838
    , 842 (Tex. 2009).
    Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in
    which the state or certain governmental units have been sued unless the state consents
    to suit.    Tex. Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 224 (Tex. 2004).
    We address questions of immunity de novo.                
    Id. 3 The
    trial court also denied attorney’s fees under the tax code. Appellants do not challenge that
    ruling on appeal, and we therefore do not address it.
    4
    Subject-matter jurisdiction is an issue that may be raised for the first time on appeal and may not
    be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 
    852 S.W.2d 440
    , 445 (Tex.1993).
    3
    Under City of El Paso v. Heinrich, sovereign immunity bars UDJA actions against
    the state and its political divisions absent a legislative waiver. 
    284 S.W.3d 366
    , 373
    (Tex. 2009). Concomitant to this rule, however, is the ultra vires exception, under which
    claims may be brought against a state official for non-discretionary acts unauthorized by
    law.   Tex. Dep’t of Transp. v. Sefzik, 
    355 S.W.3d 618
    , 621 (Tex. 2011).            In other
    words, a proper defendant in an ultra vires action is the state official whose acts or
    omissions allegedly trampled on a party’s rights, not the state, or its political
    subdivisions, themselves.    
    Id. (citing Heinrich,
    284 S.W.3d at 372–73). Furthermore,
    the UDJA does not waive the state’s sovereign immunity when the plaintiff seeks a
    declaration of his or her rights under a statute or other law.   
    Sefzik, 355 S.W.3d at 621
    ;
    see 
    Heinrich, 284 S.W.3d at 372
    –73. This proposition is supported by the fact that the
    UDJA does not alter a trial court’s jurisdiction because it is “merely a procedural device
    for deciding cases already within the trial court’s jurisdiction.”    Tex. Parks & Wildlife
    Dep’t v. Sawyer Trust, 
    354 S.W.3d 384
    , 388 (Tex. 2011) (quoting Tex. Ass’n of Bus. v.
    Tex. Air Control Bd., 
    852 S.W.2d 440
    , 444 (Tex. 1993)).     Accordingly, under the facts of
    this case, in order for the underlying action to survive an assertion of sovereign
    immunity, it must be one for which immunity has expressly been waived.           
    Sefzik, 355 S.W.3d at 621
    .
    2. Discussion
    Appellants’ claims under the UDJA in this case deal with the purported
    unconstitutional and unlawful taxation of their trailer homes.   See TEX. CONST. art. VIII, §
    1(d)(2); TEX. TAX CODE ANN. § 11.14 (West 2008).             Additionally, appellants seek
    4
    attorney’s fees pursuant to section 37.009 of the UDJA.       See TEX. CIV. PRAC. & REM.
    CODE ANN. § 37.009 (West 2008). Although the UDJA waives sovereign immunity,
    appellants’ claims do not fall within the scope of these waivers.         See, e.g., 
    id. § 37.006(b)
    (West 2008) (waiving immunity for claims challenging the validity of
    ordinances or statutes); see also 
    Heinrich, 284 S.W.3d at 373
    n. 6; Tex. Educ. Agency v.
    Leeper, 
    893 S.W.2d 432
    , 446 (Tex. 1994) (“The [UDJA] expressly provides that persons
    may challenge ordinances or statutes, and that governmental entities must be joined or
    notified.”).   Appellants are not challenging the validity of a provision of the tax code;
    instead, they are challenging the Appraisal District’s actions under it, and appellants do
    not direct us to any portion of the UDJA that expressly waives immunity for these claims.
    See 
    Sefzik, 355 S.W.3d at 622
    .          And appellants did not sue any state officials.
    Accordingly, the trial court lacked jurisdiction to hear any of appellants’ claims under the
    UDJA, including their claim for attorney’s fees.
    When we hold that a trial court is without subject-matter jurisdiction, we allow a
    plaintiff to replead if the defect can be cured.    See 
    Miranda, 133 S.W.3d at 226
    –27.
    Appellants did not sue any state officials. In Sefzik, the Texas Supreme Court gave the
    plaintiff an opportunity to cure the jurisdictional defects of his petition because Sefzik
    brought his claim pre-Heinrich, when the case law interpreting the ultra vires exception to
    the doctrine of sovereign immunity, as well as to who the property party was in a suit for
    declaratory remedy, was “less than clear.”         See 
    Sefzik, 355 S.W.3d at 623
    (citing
    
    Heinrich, 284 S.W.3d at 373
    ). Here, appellants filed their petition for review and for
    declaratory relief on August 13, 2010, which is post-Heinrich. Therefore, the pleadings
    5
    affirmatively negated the existence of jurisdiction, and appellants will not be given an
    opportunity to amend.
    III.    CONCLUSION
    We dismiss appellants’ claims and relief sought under the UDJA, including the
    collection of attorney’s fees for lack of jurisdiction.
    __________________________
    GINA M. BENAVIDES,
    Justice
    Delivered and filed the
    15th day of August, 2013.
    6
    

Document Info

Docket Number: 13-12-00390-CV

Filed Date: 8/15/2013

Precedential Status: Precedential

Modified Date: 10/16/2015