Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring Opinions filed January 13, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00330-CV
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TARA PARTNERS, LTD., GRANADA TERRACE, LTD., DAVID R. WISE, 1606 SAVANNAH LLC, WINDSOR GARDENS, LTD., AND FREEPORT VILLA BRAZOS APARTMENTS, LTD., Appellants
V.
CITY OF SOUTH HOUSTON, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2005-14978
C O N C U R R I N G O P I N I O N
The majority reaches the correct judgment. However, I respectfully disagree with some of the majority=s analysis under the first issue, as discussed below.
Standard of Review
We review a trial court=s ruling on a plea to the jurisdiction de novo. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In discussing the standard of review, the majority does not distinguish clearly between pleas to the jurisdiction in which the defendant challenges the pleadings and pleas to the jurisdiction in which the defendant challenges the existence of jurisdictional facts.[1]
When a party has filed a plea to the jurisdiction challenging the pleadings, a reviewing court must construe the pleadings liberally in favor of the pleader and look to the pleader=s intent. See Miranda, 133 S.W.3d at 226. If the facts alleged affirmatively demonstrate the trial court=s jurisdiction to hear the cause, the plea to the jurisdiction must be denied. See id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court=s jurisdiction, but do not affirmatively demonstrate incurable defects in the jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. See id. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. See id. at 227. If in its plea to the jurisdiction a party challenges the existence of jurisdictional facts, the reviewing court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. See id. at 227B28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of law. Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider the merits of the parties= claims. See id. at 226B28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In its plea to the jurisdiction, appellee The City of South Houston (the ACity@) challenged the pleadings of appellants Tara Partners, Ltd., Granada Terrace, Ltd., David R. Wise, 1606 Savannah LLC, Windsor Gardens, Ltd., and Freeport Villa Brazos Apartments, Ltd. (collectively ARatepayers@).
The Commission does not have exclusive appellate jurisdiction.
As to the first issue, the majority correctly concludes that the legislature has not conferred exclusive appellate jurisdiction on the Texas Commission on Environmental Quality (the ACommission@) over water and sewer rates a municipally-owned water and sewer utility charges ratepayers residing within its corporate limits. However, the Aorders or ordinances@ language of section 13.042(d) and the language of section 13.042(f) are not helpful in this analysis.[2] Rather, under section 13.042(d), the Commission has Aexclusive appellate jurisdiction . . . as provided in this chapter.@ See Tex. Water Code Ann. ' 13.042(d) (Vernon 2008). Under this section=s unambiguous language, the legislature did not confer any appellate jurisdiction on the Commission in this section; rather, the legislature introduced the concept of appellate jurisdiction and referred to other parts of Chapter 13 of the Water Code, in which the legislature confers appellate jurisdiction on the Commission, for example, section 13.043(b). See Tex. Water Code Ann. ' 13.043(b) (Vernon 2008). The majority correctly points out that the City=s proffered construction of section 13.042(d) would make section 13.043(b) meaningless and unnecessary. Based on the plain language of the Texas Water Code, this statute does not confer exclusive appellate jurisdiction on the Commission over the rates charged by a municipally-owned utility to rate-payers residing within its territorial boundaries.
Under the Texas Constitution, the district court has jurisdiction.
Under the Texas Constitution, ADistrict Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.@ Tex. Const. art. V, ' 8. Under the Texas Water Code, the governing board of the City has exclusive original jurisdiction over all water and sewer utility rates, operations, and services provided by a water and sewer utility within its corporate limits. See Tex. Water Code Ann. ' 13.042(a). However, no statute states that the governing board=s decisions are not appealable and no statute confers appellate jurisdiction on the Commission or any other entity over the rates charged by a municipally-owned utility to rate-payers residing within its territorial boundaries. Therefore, under the Texas Constitution, district courts are vested with this appellate jurisdiction. See Tex. Const. art. V, ' 8. For this reason, the district court has jurisdiction over the Ratepayers= first three claims in their third amended petition and over their claim for declaratory judgment (sixth claim) insofar as the Ratepayers request a declaration regarding rates, but not insofar as they request a declaration regarding reimbursement for past amounts paid or enforceability of the settlement agreement.
For the reasons stated in this opinion, I respectfully concur in the court=s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Seymore, and Guzman. (Seymore, J., majority).
[1] See ante at pp. 5B6.
[2] See ante at pp. 9B10.