West Travis County Public Utility Agency, on Behalf of Itself and Its Directors, Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and Scott Roberts, in Their Official Capacities v. CCNG Development Co., L.P.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00521-CV

West Travis County Public Utility Agency, on behalf of itself and its Directors,
Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and
Scott Roberts, in their Official Capacities, Appellants

v.

CCNG Development Co., L.P., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-14-000163, HONORABLE SCOTT JENKINS, JUDGE PRESIDING

OPINION

CCNG Development Co., L.P. sued West Travis County Public Utility Agency1

and its Directors, Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and Scott Roberts

(collectively, the Agency) seeking damages for alleged breaches of a utility agreement, along

with related declaratory and injunctive relief. The Agency filed a general denial and a plea to the

jurisdiction asserting governmental immunity as to any claim for which its immunity was not waived

by Texas Local Government Code section 271.152, which it asserted specifically included CCNG’s

claims under the Uniform Declaratory Judgments Act. See Tex. Loc. Gov’t Code § 271.152 (local

1
According to CCNG’s petition, the Agency is a public utility agency created by Hays
County, the City of Bee Cave, and West Travis County Municipal Utility District No. 5 pursuant
to chapter 572 of the Texas Local Government Code. See Tex. Loc. Gov’t Code § 572.052(a)
(public entities may create public utility agency by concurrent ordinances). A public utility agency
is a political subdivision of the State. Id. § 572.052(c)(2).
governmental entity authorized by statute or constitution to enter into contract and that enters into

contract subject to subchapter I of chapter 271 waives immunity to suit for purpose of adjudicating

claim for breach of that contract, subject to terms and conditions of subchapter I). Two years later,

a district judge signed a blanket order dismissing the case, along with approximately 500 others, for

want of prosecution because those cases had been pending for a period of time in excess of the

standards set forth in Rule 6 of the Texas Rules of Judicial Administration and the Local Rules of

Civil Procedure for the Travis County District Courts.

CCNG then timely filed a motion for new trial and motion to reinstate the case

asserting that it had not received notice of the court’s intent to dismiss the case as required by the

local rules. CCNG explained that the parties had been engaged in settlement discussions since

the date the Agency filed its answer and that those discussions had recently ended. CCNG stated

that had it received notice of the dismissal it would have filed a motion to retain the case on the

court’s docket and that, because settlement efforts had failed, it desired to proceed quickly to trial.

CCNG set the motion to reinstate for a fifteen-minute hearing on August 5, 2016. On August 4,

the Agency filed its opposition to the motion to reinstate, arguing that it had paid CCNG all

amounts it claimed were due and owing thereby rendering the case moot and that, as a consequence,

the trial court lacked subject-matter jurisdiction. The response was supported by over two hundred

pages of exhibits.

At the hearing, CCNG argued that the case was not moot because, among other

things, it sought to recover attorneys’ fees and interest in addition to actual damages. CCNG requested

that the court reinstate the case and allow it to respond to the Agency’s argument that there was no

2
longer a live controversy between the parties. The Agency countered that the evidence on record

established that the case was moot.

Addressing the Agency’s contention that the case was moot, the court stated:

[H]ow can I tell that [the case is moot] on this record today without giving them an
opportunity to make any response to your argument that it’s moot?

@@@

[W]hat I’m saying is they need to have an opportunity to respond to the evidence
on record.

@@@

It may be that when they have an opportunity to respond to your 215-page filing last
night, they might be able to raise a fact question that essentially shows that it’s not
entirely moot. He says there’s also declaratory relief they’re seeking, there’s injunctive
relief they’re seeking, so its not simply a matter of payment of money owed. Those
are two arguments that would maybe negate the mootness argument.

@@@

I am going to grant the motion for new trial and to reinstate. This is without
prejudice, of course—jurisdictional arguments can always be raised, so it’s without
prejudice to your opportunity to continue to argue or reargue, urge in a different
hearing a motion to dismiss for lack of jurisdiction because the case is moot.

At the hearing the trial court signed an order granting CCNG’s motion for new trial and motion to

reinstate and reinstated the case on the court’s active docket.

The Agency then filed a notice of interlocutory appeal of the trial court’s order

reinstating the case. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (appeal from interlocutory order);

Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (section 51.014(a) expands jurisdiction

of courts of appeals and specifies circumstances in which litigant may immediately appeal from order

3
that would otherwise be unappealable because final judgment has not been rendered). In two issues,

the Agency argues that the trial court erred by reinstating the case because it lacks subject-matter

jurisdiction over a moot case and has no power to reinstate a case over which it has no jurisdiction.

CCNG filed a motion to dismiss the interlocutory appeal, asserting that this Court lacks interlocutory

jurisdiction to review the trial court’s reinstatement order.2 The Agency responded that this

interlocutory appeal is authorized by Texas Civil Practice and Remedies Code section 51.014(a)(8),

which permits an interlocutory appeal from an order denying a plea to the jurisdiction filed by a

governmental unit. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting interlocutory appeal

from order granting or denying plea to jurisdiction filed by governmental unit as that term is defined

in section 101.001); id. § 101.001 (defining “governmental unit” to include “a political subdivision

of this state”). Because we lack interlocutory jurisdiction to review the trial court’s reinstatement

order, we will dismiss this appeal for lack of subject-matter jurisdiction.

DISCUSSION

This Court has jurisdiction over this interlocutory appeal only to the extent such

jurisdiction is expressly granted by section 51.014(a) of the Texas Civil Practice and Remedies

Code. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total

Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Qwest Commc’ns Corp. v. AT & T Corp.,

2
Generally, appellate courts only have jurisdiction to review a trial court’s rulings after
rendition of a judgment finally disposing of the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). Interlocutory appellate
jurisdiction is an exception to this general rule; it enables us to review a trial court’s ruling while the
case is still pending before the trial court. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
840-41 (Tex. 2007). We have interlocutory jurisdiction only when the Legislature authorizes it. Id.

4
24 S.W.3d 334, 336 (Tex. 2000) (“An appellate court lacks jurisdiction to review an interlocutory

order unless a statute specifically authorizes an exception to the general rule, which is that appeals

may only be taken from final judgments.”); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365

(Tex. 1985) (orig. proceeding) (per curiam) (“Unless there is a statute specifically authorizing an

interlocutory appeal, the Texas appellate courts have jurisdiction only over final judgments.”). In

order for this appeal to fall within the legislative grant of jurisdiction the Agency relies on, the order

appealed must be one that “grants or denies a plea to the jurisdiction.” See Tex. Civ. Prac. & Rem.

Code § 51.014(a)(8). The dispositive issue in this case, therefore, is whether the trial court’s order

reinstating the case constitutes a denial of the Agency’s jurisdictional challenge.

The reinstatement order does not expressly address the Agency’s challenge to the

trial court’s jurisdiction on either immunity or mootness grounds. A review of the record demonstrates

that the trial court did not otherwise expressly deny or grant the Agency’s jurisdictional challenge.

Instead, the court pointed out that CCNG had not had an opportunity to respond, either with evidence

or argument, to the Agency’s argument that the case was moot. The trial court expressly stated that

CCNG should have an opportunity to respond to the Agency’s argument and evidence, that it was

reinstating the case, and that after reinstatement the Agency could present its jurisdictional challenge

for the court’s consideration. The reinstatement order contains no ruling on the jurisdictional challenge

and simply states that “Plaintiffs’ Motion for New Trial and Motion to Reinstate is hereby GRANTED

and that this case is hereby REINSTATED on the court’s active docket.” See Texas Dep’t of Pub.

Safety v. Salazar, No. 03-11-00206-CV, 2011 WL 1469429, at *1 (Tex. App.—Austin Apr. 19,

2011, no pet.) (mem. op.) (order granting motion for continuance of governmental unit’s plea to

5
jurisdiction and allowing additional discovery did not constitute implicit denial of plea); City of

Galveston v. Gray, 93 S.W.3d 587, 590 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (same).

The Agency maintains, however, that the trial court’s reinstatement was necessarily

a decision on the merits of the jurisdictional challenge because a trial court does not have the power

to reinstate a case over which it lacks subject-matter jurisdiction. To support this argument, the

Agency relies on three cases: McConnell v. May, 800 S.W.2d 194 (Tex. 1990) (per curiam); Estate

of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); and United Residential Properties, L.P.

v. Theis, 378 S.W.3d 552 (Tex. App.—Houston [14th Dist.] 2012, no pet.). None of these cases

supports the Agency’s view that a trial court may not reinstate a case that was dismissed for want

of prosecution before reaching a challenge to subject-matter jurisdiction. In McConnell, the Texas

Supreme Court conditionally granted a writ of mandamus directing a trial court to vacate an order

granting an unverified motion to reinstate. 800 S.W.2d at 194. The court held that the trial court’s

jurisdiction to reinstate the case expired when the party seeking reinstatement failed to file a verified

motion to reinstate within 30 days of the signing of the dismissal order as required by the rules

of civil procedure. See id. (citing Tex. R. Civ. P. 165a(3) (“A motion to reinstate shall set forth

the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk

within 30 days after the order is signed . . . .”)). In Estate of Howley, the supreme court similarly

conditionally granted a petition for writ of mandamus directing the trial court to vacate a

reinstatement order signed after its plenary power had expired. 878 S.W.2d at 140 (mandamus will

issue when trial court erroneously reinstates case after expiration of court’s plenary jurisdiction).

In United Residential, the trial court had signed a final judgment after a bench trial.

378 S.W.3d at 556. In its appeal from that judgment, United Residential argued that the trial court

6
did not have subject-matter jurisdiction over the case because, before trial, it had dismissed the

case and then reinstated it more than 30 days later. Id. at 557. United Residential argued that the

reinstatement order was void because it was signed after the trial court’s plenary power had expired.

Id. The court of appeals noted that rule 165a provides that a motion to reinstate must generally be

filed within 30 days of the trial court’s dismissal and the deadline is jurisdictional. Id. (citing Walker

v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (“This court has repeatedly held that the time limits

provided in rule 165a are mandatory and jurisdictional and that orders of reinstatement entered after

their expiration are void.”)). The court of appeals ultimately rejected the jurisdictional challenge

because it concluded that the motion to reinstate was filed within the trial court’s plenary jurisdiction

measured from the date determined under Texas Rule of Civil Procedure 306a(4). Id. at 559; see

Tex. R. Civ. P. 165a (motion to reinstate must be filed within 30 days after order of dismissal is

signed or within the period provided by rule 306a (emphasis added)).

The cases cited by the Agency hold that a court may not reinstate a case after its

plenary power has expired.3 They do not, however, support the Agency’s assertion that a trial court

may not reinstate a case it has dismissed for want of prosecution without first addressing a challenge

to its subject-matter jurisdiction over the case. Nor do these cases support the notion that an order

granting a motion to reinstate necessarily constitutes an implicit denial of a pending jurisdictional

3
“Plenary power” is “the court’s power to dispose of any matter properly before it.” See
WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 751 (Tex. App.—Dallas 2006, pet. denied). The
trial court’s power to modify its judgment during this time period is “practically unlimited” or
“virtually absolute.” Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294-95 (Tex. App.—Dallas 2009,
no pet.). By contrast, any action taken by a trial court after it loses plenary power is void. In re
Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (per curiam). In the present case,
the parties do not dispute that the trial court had plenary power over the case when it signed the
reinstatement order.

7
challenge. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006) (trial court’s ruling on merits

of declaratory judgment claim constituted implicit denial of plea to jurisdiction). Rather, they are

consistent with the noncontroversial principle that a trial court has no authority to issue orders once

its plenary power has expired. See In re Southwestern Bell Tel. Co. 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding) (per curiam).

The Agency correctly states that interlocutory appeal is not foreclosed simply because

the jurisdictional challenge was raised in response to a motion to reinstate rather than in a plea to the

jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (person may appeal from interlocutory

order that grants or denies plea to jurisdiction by governmental unit); Texas Dep’t of Criminal

Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (“The reference to ‘plea to the jurisdiction’ [in

section 51.014(a)(8)] is not to a particular procedural vehicle but to the substance of the issue raised.

Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether

the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a

motion for summary judgment.”); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex.

App.—Austin 2014, no pet.) (section 51.014(a)(8) authorized interlocutory appeal from denial of

governmental unit’s rule 91a motion to dismiss on ground that plaintiffs had failed to allege viable

causes of action not barred by governmental immunity). The relevant inquiry in this case is whether

the court did rule on the jurisdictional challenge such that this Court has interlocutory jurisdiction

to consider that ruling.

It is a fundamental precept that a court must not proceed to the merits of a case until

legitimate challenges to its jurisdiction have been decided. See Texas Dep’t of Parks & Wildlife v.

8
Miranda, 133 S.W.3d 217, 228 (Tex. 2004). While the jurisdictional determination should be made

as soon as practicable, the court has discretion to defer the jurisdictional decision until the case has

been more fully developed. See id. at 227. In the present case, the trial court exercised its discretion

to defer its decision on the Agency’s jurisdictional challenge and to reinstate the case for further

development. See id.; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (“[A] court

deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider

evidence and must do so when necessary to resolve the jurisdictional issues.”). Because the trial court

has yet to enter an order that grants or denies the Agency’s jurisdictional challenge, we lack subject-

matter jurisdiction over this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8);

Rusk State Hosp., 392 S.W.3d at 95 (section 51.014(a) is limited exception to general rule that party

may appeal only from final judgments or orders). Consequently, we grant CCNG’s motion to

dismiss and dismiss the appeal.4

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Dismissed for Want of Jurisdiction

Filed: January 4, 2017

4
CCNG also moved for “just damages” pursuant to rule 45 of the Texas Rules of Appellate
Procedure. See Tex. R. App. P. 45 (damages for frivolous appeals in civil cases). We overrule
the motion.

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