Opinion
15-24-00078-CV
10-08-2024
KEN PAXTON, ATTORNEY GENERAL OF TEXAS, Appellant v. THE CITY OF AUSTIN AND AUSTIN TRANSIT PARTNERSHIP LOCAL
On Appeal from the 53rd District Court Travis County, Texas Trial Court Cause No. D-1-GN-24-001064
Before Justices Field, Farris, and Radack
The Honorable Sherry Radack, retired, sitting by assignment.
MEMORANDUM OPINION
April L. Farris Justice
Appellant Ken Paxton, Attorney General of Texas, alleges that the trial court implicitly denied the Attorney General's pending plea to the jurisdiction by setting the case for trial. The Attorney General filed a notice of appeal challenging that implicit denial. Appellees the City of Austin and Austin Transit Partnership filed a motion to dismiss the appeal for lack of jurisdiction or, alternatively, to decide the appeal on a sworn record without briefs. We grant Appellees' motion and DISMISS the appeal because the trial court expressly declined to rule on the Attorney General's plea to the jurisdiction and no merits order has issued.
In light of our disposition, we need not address Appellees' request for alternative relief.
BACKGROUND
In November 2020, Austin voters approved Proposition A, a ballot proposition to fund mass transit in Austin, known as "Project Connect." Taxpayers sued Appellees challenging the execution of Project Connect and its alleged changes since voters approved Proposition A. In response to the taxpayers' suit, Appellees filed a petition under the Expedited Declaratory Judgment Act (EDJA) seeking to resolve any uncertainty about the authority to collect and dedicate the tax to support Project Connect and to validate the financing plan and initial bonds for the light rail components of Project Connect.
The Attorney General intervened and filed a plea to the jurisdiction asserting that the trial court lacked jurisdiction under the EDJA to consider the subject matter of the taxpayers' suit against Appellees. See Tex. Gov't Code § 1205.021(1), (2). The taxpayers' suit, consolidated with the EDJA action brought by Appellees, was called to trial March 18, 2024. On June 17, 2024, the trial court resumed trial, at which time the Attorney General informed the trial court that by proceeding to trial, the court had implicitly denied the Attorney General's pending plea to the jurisdiction. The trial court declined to explicitly rule on the plea but notified the parties that the court intended to proceed to trial. At that time, the Attorney General filed a notice of interlocutory appeal of the trial court's implicit denial pursuant to Section 51.014(a)(8) of the Civil Practice and Remedies Code. Appellees subsequently filed a motion to dismiss the appeal that asserted, among other things, that the record contains no appealable order denying the plea to the jurisdiction.
APPLICABLE LAW
Appellate review is ordinarily limited to final judgments. Harley Channelview Properties, LLC v. Harley Marine Gulf, LLC, 690 S.W.3d 32, 37 (Tex. 2024). An appellate court has no jurisdiction to review an interlocutory order unless jurisdiction is conferred by statute. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). One such statute is Civil Practice and Remedies Code Section 51.014(a)(8), which provides that "[a] person may appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that . . . grants or denies a plea to the jurisdiction by a governmental unit[.]"
ANALYSIS
The Attorney General's notice of appeal filed June 17, 2024, alleged that the trial court implicitly denied the plea to the jurisdiction by proceeding to trial on the merits the same day. The trial court explicitly declined to rule on the plea, instead announcing its intent to take the plea under advisement and proceed to trial. The parties agree that the trial court never explicitly ruled on the plea to the jurisdiction. Citing Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006), the Attorney General asserts the trial court's decision to proceed to trial constitutes an appealable order and implicit denial of the plea.
In Thomas v. Long, the plaintiff sued the Harris County Sheriff for retaliation and sought mandamus and declaratory relief in the trial court. Id. at 336-37. The plaintiff moved for summary judgment on her mandamus and declaratory judgment claims. Id. at 337. The sheriff filed a cross-motion for summary judgment on the grounds that the trial court lacked subject matter jurisdiction, the Civil Service Commission had primary jurisdiction, and that he was entitled to judgment as a matter of law on the plaintiff's mandamus and declaratory judgment claims. Id. The trial court granted a partial summary judgment in favor of the plaintiff on her request for declaratory relief. Id. More specifically, the trial court declared that the plaintiff had a right to return to work immediately with no loss of seniority or benefits. Id. The trial court granted the sheriff's motion for partial summary judgment in part and dismissed the plaintiff's request for mandamus relief. Id. The sheriff appealed the trial court's order, but the court of appeals dismissed the appeal for lack of jurisdiction because the record did not contain an order granting or denying the plea to the jurisdiction. Id. The Supreme Court of Texas reversed, holding that an order ruling on the merits of an issue without explicitly rejecting a jurisdictional attack has implicitly denied the jurisdictional challenge. Id. at 339-40.
The facts and procedure in this case are distinguishable for two reasons. First, the trial court explicitly stated that it declined to rule on the plea to the jurisdiction. Second, the trial court did not issue an order or any ruling on the merits but rather proceeded to trial. In this case, our record does not contain any merits order that could be construed as an implicit denial of the plea to the jurisdiction as the court did in Thomas. On the record as presented at this time, we lack jurisdiction over the Attorney General's interlocutory appeal due to the lack of an appealable order. See City of Houston v. Griner, No. 14-24-00164-CV, 2024 WL 1326200, at *1 (Tex. App.-Houston [14th Dist.] Mar. 28, 2024, pet. denied) (per curiam) (mem. op.) (concluding the court lacked jurisdiction under Section 51.014(a)(8) when "[t]he most that can be said is that the trial court was allowing a jury trial to proceed while the motions were pending"); cf. City of Galveston v. Gray, 93 S.W.3d 587, 589 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) (dismissing interlocutory appeal challenging "implicit" denial of city and county's pleas to the jurisdiction but granting conditional mandamus relief directing the trial court to rule on the pleas).
The Attorney General filed a response to Appellees' motion asking this court to abate the appeal to "allow the trial court to issue an order clarifying its intentions." Rule of Appellate Procedure 27.2 allows an appellate court to abate an appeal to permit the parties and the trial court an opportunity to modify an order that is not final. Tex.R.App.P. 27.2. Generally, appellate courts have jurisdiction to abate an appeal pursuant to Rule 27.2 when the action by the trial court is ministerial, such as signing an order nonsuiting a party to modify an order that is not final. See Iacono v. Lyons, 6 S.W.3d 715, 716 -17 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (per curiam) (abating appeal for trial court to sign nonsuit order). In this case, there is no order for the trial court to modify because the trial court has not ruled. Moreover, the record does not reflect any ambiguity. Rather, the trial court expressly declined to rule on the Attorney General's plea. Accordingly, the appeal must be dismissed for lack of an appealable order granting or denying the plea to the jurisdiction.
Nevertheless, in so holding, we reject Appellees' argument that Texas Government Code Chapter 1205 conflicts with Texas Civil Practice and Remedies Code Section 51.014(a)(8)'s authorization of an interlocutory appeal challenging the denial of a government unit's plea to the jurisdiction. Although we agree with Appellees that the Expedited Declaratory Judgment Act was designed to provide issuers of public securities a method of "quickly and efficiently adjudicating the validity of public securities and acts affecting those public securities," Hotze v. City of Houston, 339 S.W.3d 809, 814 (Tex. App.-Austin 2011, no pet.), nothing in Chapter 1205 purports to eliminate the government's statutory right to appeal the denial of its plea to the jurisdiction. That is not surprising. No efficiencies are created by proceeding quickly in the absence of jurisdiction.
Texas Supreme Court authority likewise confirms that the EDJA does not nullify the right to an interlocutory appeal under Section 51.014(a)(8). The Texas Supreme Court has considered and ruled upon an appeal challenging the partial denial of a plea to the jurisdiction brought under Section 51.014(a)(8) while the underlying EDJA action was stayed pending the resolution of the jurisdictional challenge. See City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 451-52, 457 at n.19 (Tex. 2020) ("The scope of this interlocutory appeal is limited to the denial of the Cities' pleas to the jurisdiction concerning the EDJA . . . ."); Cities of Conroe, Magnolia, & Splendora v. Paxton, 559 S.W.3d 656, 668 & n.41 (Tex. App.-Austin 2018) (recognizing that interlocutory appeal was brought under Texas Civil Practice & Remedies Code Section 51.014(a)(8)), rev'd in part sub nom. City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444 (Tex. 2020).
Accordingly, we grant Appellees' motion and dismiss this interlocutory appeal for want of jurisdiction due to the lack of an appealable order either granting or denying the Attorney General's plea to the jurisdiction. See Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023) (noting "fundamental rule" that a "court may not reach the merits if it finds a single valid basis to defeat jurisdiction"). Because the trial court has not ruled on the plea, we do not reach Appellees' argument with respect to whether the subjects of the Attorney General's plea to the jurisdiction properly qualify as jurisdictional challenges.