Bass v. Waller County Sub-Regional Planning Commission
Bass v. Waller County Sub-Regional Planning Commission
Opinion of the Court
OPINION
Our jurisdiction in this appeal has been challenged by.motion of the appellee, the Waller County Sub-Regional Planning Commission, which asserts that the trial-level rulings being brought before us are interlocutory and have not been made ap-pealable by statute. We requested and received a response from the appellant, James Bass, in his official capacity as Executive Director of the Texas Department of Transportation. While acknowledging there is no final judgment, the Executive Director argues that we possess jurisdiction under Section 51.014(a)(8) of the Civil Practice and Remedies Code, the statute that authorizes the appeal of an interlocutory order from a district court that “grants or denies a plea to the jurisdiction by a governmental unit.”
BACKGROUND
The underlying litigation arises along one of the larger faultlines of policy and priorities found in modern-day Texas—the recurrent tensions between advocates of large-scale transportation projects to connect our State’s urban centers versus those who perceive detriment to the less populous regions lying between. Currently in development—with integral TxDOT involvement—is a high-speed railway project that would connect Dallas and Houston. In the project’s anticipated path lies Waller County, the region served by the Planning Commission,
Based on these and other allegations, and adhering to the conceptual and procedural framework for claims challenging governmental conduct alleged to be ultra vires of legal authority,
The Planning Commission also filed a motion for partial summary judgment seeking the declaratory relief for which it had pleaded. The Executive Director filed a response in which he reurged his jurisdictional challenges regarding the declaratory claims as grounds for denying the motion. He added, as further grounds for denying the motion, that fact issues precluded summary judgment and that Section 391.009(c) had no application to the high-speed-rail project in the first place.
The district court heard oral argument on the Planning Commission’s motion for partial summary judgment, the Executive Director’s plea to the jurisdiction, and the Executive Director’s Rule 91a motion during a hearing held on January 5, 2017. Before the hearing’s conclusion, the district court signed an “Order Granting Plaintiffs Motion for Partial Summary Judgment” granting the Planning Commission’s motion and awarding it substantially the same declaratory relief it had requested in its pleadings.
ANALYSIS
In ascertaining whether we have jurisdiction here, our starting point is that appeals generally may only be taken from final judgments or orders and that appeals of interlocutory orders are authorized only if and to the extent explicitly permitted by statute.
As the Planning Commission emphasizes in its dismissal motion, the Legislature has thus far not seen fit to authorize—at least categorically—appeals of interlocutory orders granting partial summary judgment (the subject of the district court’s first order), or those denying Rule 91a motions (as contained in its second order).
The Executive Director does not appear to contest any of these propositions. He insists, rather, that we possess jurisdiction under Section "51.014(a)(8) by virtue of an implicit denial of his jurisdictional challenges made by the district court when granting the Planning Commission’s motion for partial summary judgment. His reasoning rests upon two principles recognized in case law- applying Section 51.014(a)(8). First, the Texas Supreme Court has concluded- that/ Section 51.014(a)(8)’s authorization of an ..appeal of an order that “grants or denies a plea to the jurisdiction” refers not to that specific type or form of filing, but to any challenge to subject-matter jurisdiction irrespective of the procedural vehicle used.
The second principle, also recognized by the Texas Supreme Court, is that
To be entitled to an interlocutory appeal, section 51.014(a)(8) requires the denial of a jurisdictional challenge. In this case, none of the trial court’s orders on the parties’ cross-motions for summary judgment explicitly denied the relief sought in the section of Thomas’s motion for summary judgment challenging the trial court’s subject matter jurisdiction. However, the trial court’s rulings on the merits of some claims for which Thomas argued the trial court lacked subject matter jurisdiction constitute an implicit rejection of Thomas’s jurisdictional challenges. The Texas Rules of Appellate Procedure only require that the record show the trial court ruled on the request, objection, or motion, either expressly or implicitly. TEX. R. APP. P. 33.1(a)(2)(A). Because a trial court cannot reach the merits of a case without subject matter jurisdiction, Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993), a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack has implicitly denied the jurisdictional challenge. See, e.g., Soberay Mach. & Equip. Co. v. MRF Ltd., 181 F.3d 759, 762 (6th Cir. 1999); Ahuna v. Dep’t of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161, 1165 n.9 (1982). By ruling on the merits of Long’s declaratory judgment claim, the trial court necessarily denied Thomas’s challenge to the court’s jurisdiction. That implicit denial satisfies section 51.014(a)(8) of the Texas Civil Practice and Remedies Code and gives the court of appeals jurisdiction to consider Thomas’s interlocutory*915 appeal.28
The Executive Director also emphasizes a subsequent memorandum opinion from this Court in which we summarized the rule of Thomas as “a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack has impliedly denied the jurisdictional challenge.”
The Executive Director views this case as a reprise of Thomas, urging that the district court’s order granting the Planning Commission’s motion for partial summary judgment and awarding it declaratory relief necessarily denied his jurisdictional challenges to that claim implicitly, a ruling that is in turn appealable under Section 51.014(a)(8). The Planning Commission seeks to distinguish Thomas by characterizing the partial summary judgment awarding it declaratory relief as something short of a determination on that claim’s “merits” in the sense Thomas contemplated and from which a denial of the Executive Director’s jurisdictional challenges can be implied. More critically, the Planning Commission suggests, the district court’s order explicitly deferring its ruling on the jurisdictional issue until trial belies any implied rejection of that challenge when granting the partial-summary-judgment motion and declaratory relief.
The Executive Director’s arguments in reliance on Thomas would present some potentially close, questions if the district court’s “Order Granting Plaintiffs Motion for Partial Summary Judgment” was viewed in isolation.
The first alternative reason is perhaps the most obvious one—we should be hesitant to conclude that the district court impliedly denied the Executive Director’s jurisdictional challenge through its “Order Granting Plaintiffs Motion for Partial Summary Judgment” when its “Order on Defendant’s Plea to Jurisdiction and Rule 91a Motion to Dismiss” explicitly ruled otherwise.
Alternatively, the effect of the district court’s explicit deferral of its jurisdiction ruling would have been to vacate any jurisdictional ruling implicit in its summary-judgment order. It is in this regard that the sequence of the two orders, noted in our introduction, becomes significant. Both orders, being interlocutory, remained subject to change or modification—or being abrogated altogether—until merged into a final judgment.
CONCLUSION
This litigation presents a number of potentially challenging legal questions for the Judiciary, and the broader policy and societal debates from which these arise may be more vexing still for the other two branches. But all of these matters presently lie beyond the subject-matter jurisdiction with which this Court is vested. Accordingly, we grant the Planning Commission’s motion and dismiss this appeal.
. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
. As its full name indicates, the Planning Commission is a "regional planning commission" created under Chapter 391 of the Local Government Code and comprised of municipalities and other local government entities in Waller County. See generally Tex. Loc. Gov't Code §§ 391.001-.006.
. Id. § 391.009(c); see also id. § 391.002(2) (“In this chapter; ... ‘Commission’ means a regional planning commission, council of governments, or similar regional planning agency created under this chapter.”).
. See City of El Paso, v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009).
. The Planning Commission has also asserted an accompanying claim for the attorney’s fees that would be permitted by the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009.
. See Tex. R. Civ. P. 91a.
. See Heinrich, 284 S.W.3d at 372 (explaining that permissible ultra vires claim “must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act”). In a similar vein, the Executive Director has asserted in his plea that the challenged claims are not yet ripe because Section 391.009(c) affords it leeway to "coordinate” with the Planning Commission at some later juncture in the project.
. More specifically, the Executive Director disputed that the project fell within the “state programs” referenced in Section 391.009(c).
. The district court ordered that:
[The Planning Commission] is entitled to judgment declaring that [TxDOT] has a duty to coordinate planning, to the greatest extent feasible, with the [Commission] with respect to the implementation of the high-speed railway that is being planned to run between Dallas and Houston, Texas and that [the Executive Director] has acted outside his powers and authority by refusing to direct [TxDOT] to perform its statutory duty to coordinate planning, to the greatest extent feasible, with the [Planning Commission], with respect to the implementation of the high-speed railway that is being planned to run between Dallas and Houston, Texas.
.In addition to acknowledging this sequence of events in his response to the Planning Commission's dismissal motion, the Executive Director cites to portions of a reporter’s record from the hearing that was brought forward at his request. These excerpts include statements by the district court indicating that it had signed the summary-judgment order, but was deferring ruling on either the plea to the jurisdiction or Rule 91a motion until some later time. One can therefore deduce from the two orders and this record that the district court signed its “Order Granting Plaintiff's Motion for Partial Summary Judgment” during the hearing and its "Order on Defendant's Plea
. See Tex. R. App, P. 26.1(b), 28.1(a), (b).
. See, e.g., Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (citing Story v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)); West Travis Cty. Pub. Util. Agency v. CCNG Dev. Co., 514 S.W.3d 770, No. 03-16-00521-CV, 2017 WL 74420, 2017 Tex. App, LEXIS 14 (Tex. App.—Austin, Jan. 4, 2017, no pet. h.) (citing Koseoglu, 233 S.W.3d at 840-41; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Stary, 967 S.W.2d at 352-53).
. See, e.g., Koseoglu, 233 S.W.3d at 841 (quoting Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).
. See, e.g, Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 542-43 (Tex. App,—Houston [14th Dist,] 2015, no pet.) ("Courts of appeals do not have jurisdiction over appeals from interlocutory orders—such as the partial summary judgment order in this case—unless a statute provides for an interlocutory appeal from such orders.” (citing Koseoglu, 233 S.W.3d at 840)); Koenig v. Blaylock, 497 S.W.3d 595, 598 n.4 (Tex. App.—Austin 2016, pet. denied) (noting that no statute permitted interlocutory appeal from order denying Rule 91a motion) (citing Bally Total Fitness Corp., 53 S.W.3d at 352); cf. Tex. Civ. Prac. & Rem. Code § 51.014 (enumerating categories of ap-pealable interlocutory orders). However, either type of order can conceivably include component rulings that have been made ap-pealable, as we will discuss shortly,
. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) (“When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, tire trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a further development of the case, mindful that this determination must be made as soon as practicable.”) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).
. The Executive Director does seem to complain of an on-the-record observation by the district court that "if I grant or deny the plea,
. See Tex: Civ. Prac. & Rem. Code § 51.014(a)(8) (emphasis added); see also Koseoglu, 233 S.W.3d at .841-45 (right of appeal under Section 51.014(a)(8) extends to state officials sued in official capacity who have asserted trial-level jurisdictional challenges).
. See CCNG Dev.,— S.W.3d at -—-, 2017 WL 74420, *4-5, 2017 Tex. App. LEXIS 14, at *10-11 (holding that order reinstating cases after dismissal for want of prosecution did not implicitly overrule pending jurisdictional challenges, so as to be appealable under Section 51.014(a)(8); order was instead exercise of trial court’s discretion "to defer its decision on the ... jurisdictional challenge and to reinstate the case for further development”) (citing Miranda, 133 S.W.3d at 228; Bland Indep. Sch. Dist., 34 S.W.3d at 555).
. See Waller Cty. v. City of Hempstead, 453 S.W.3d 73, 75-76 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (no jurisdiction under Section 51.014(a)(8) where "trial court expressly refused to rule on the issues raised in the plea to the jurisdiction”); Fernandez v. Pimentel, 360 S.W.3d 643, 645-47 (Tex. App.—El Paso 2012, no pet.) (no jurisdiction under Section 51.014(a)(8) where trial court "stated that [it] needed to hear evidence on the plea”); City of Galveston v. Gray, 93 S.W.3d 587, 589-90 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (no jurisdiction under Section 51.014(a)(8) where "trial court specifically stated it was not ruling on the pleas to the jurisdiction”).
. See, e.g., Thomas v. Long, 207 S.W.3d 334, 339 (Tex., 2006) ("The Legislature provided for an interlocutory appeal when a trial court denies a governmental unit’s challenge to subject matter jurisdiction, irrespective of the procedural vehicle used.”) (citations omitted); Texas Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004), superseded by statute on other grounds, Tex. Gov’t Code § 311.034 (reference to "plea to the jurisdiction” in Section 51.014(a)(8) "is not to á particular procedural vehicle[,] but to the substance of the issue raised”).
. See Thomas, 207 S.W.3d at 339-40 ("Thomas did not file a document titled 'plea to the jurisdiction’ with the trial court. However, Thomas's summary judgment motion clearly challenged the trial court's subject matter jurisdiction,” such that grant or denial would be appealable under Section 51.014(a)(8)).
. Tex. R. App. P. 33.1(a)(2)(A) ("As a prerequisite to presenting a complaint for appellate review, the record must show that: ... the trial court ... ruled on the request, objection, or motion, either expressly or implicitly.").
. See 207 S.W.3d at 336-37.
. See id.
. Id.
. Pacific Emp’rs Ins. Co. v. Twelve Oaks Med. Ctr., No. 03-08-00059-CV, 2010 WL 1511753 at *1, 2010 Tex. App. LEXIS 2771 at *4 (Tex. App.—Austin Apr. 16, 2010, no pet.) (mem. op.) (citing Thomas, 207 S.W.3d at 339-40).
. See Id. at *1, 2010 Tex. App. LEXIS 2771 at *3-4.
. See Thomas, 207 S.W.3d at 338-40; see also City of Houston v. Estate of Jones, 388 S.W.3d 663, 665 (Tex. 2012) (per curiam) (where municipality had filed plea to jurisdiction against claims for alleged breach of settlement agreement, deducing that "[t]he trial court implicitly denied the City’s plea to the jurisdiction by granting partial summary judgment to [the claimant] on the issue of liability and setting the case for trial on the issue of damages” (citing Thomas, 207 S.W.3d at 339-40)); Lazarides v. Farris, 367 S.W.3d 788, 796-97 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (jurisdiction existed under Section 51.014(a)(8), despite absence of explicit ruling on plea to the jurisdiction, where trial court had denied a summary-judgment motion in which various jurisdictional challenges were presented); of. Waller County, 453 S.W.3d at 73, 75-76 (trial court’s denial of summary-judgment motion did not imply jurisdictional ruling, so as to conflict with court’s ruling deferring jurisdictional issue, because motion could have been denied based on either jurisdictional or non-jurisdictional grounds).
. Cf. Fletcher v. Minnesota Mining & Mfg. Co., 57 S.W.3d 602, 604-05 (Tex. App.— Houston [1st Dist.] 2001, pet. denied) ("We reject appellants' attempt to recast their denied charge ... as an implied ruling granting 3M’s motion for directed verdict, when that implied ruling would contradict the trial court's express ruling denying that same motion.”).
. See, e.g., Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam) (noting that "[a] trial court has plenary power over its judgment until it becomes final” and "[t]he trial court also retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered”) (citations omitted); Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375, 378 (Tex. App.—Austin 2006, no pet.) ("A trial court retains plenary power to vacate, modify, correct, or reform its judgment at any time until the judgment becomes final thirty days after it is signed or thirty days after a timely motion for new trial has been overruled.”) (citing Tex. R. Civ. P. 306a, 329(b); Fruehauf Corp., 848 S.W,2d at 84; In re Garza, 153 S.W.3d 97, 102 (Tex. App.—San Antonio 2004, no pet.)).
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