MARY LYNN COLLARD v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice O'Neill

In this interlocutory appeal, Mary Lynn Collard appeals an order granting appellee the State of Texas's plea to the jurisdiction.   In three points of error, Collard complains the trial court erred in granting the plea and dismissing her claims against the State.   For the following reasons, we affirm the trial court's order.

Collard sued the State of Texas as well as the City of Richardson, a municipal court judge, the city attorney and others in association with a 2006 proceeding in which she was prosecuted for housing code violations.   Collard asserted she was wrongfully arrested and jailed for 17 days while she awaited trial for the code violations.   A jury found appellant “guilty” of the violations and, after initially deferring its disposition, the municipal court assessed fines totaling $20,200.   The essence of Collard's complaint against the City defendants is they had no authority to bring a criminal prosecution—in the name of the State of Texas—for civil housing code violations involving municipal ordinances.   She also complained after she was wrongfully prosecuted and convicted, the City defendants then prevented her from challenging the municipal court's judgment.   Collard's complaint against the State is based on her contention that the State is liable for the City's actions because the City brought the criminal proceeding in the name of “the State of Texas” and the State did not prevent it from doing so.   The State filed a plea to the jurisdiction asserting Collard failed to assert a claim for which immunity has been waived.   The trial court granted the plea and dismissed Collard's claim against the State.

In her first point of error, Collard contends the trial court erred in “ruling ex parte” on the State's plea to the jurisdiction.   However, Collard has not established any ex parte hearing.   Rather, the trial court ruled without a hearing or notice to either party.   Therefore, Collard's first point of error presents nothing to review.   In her second point of error, Collard complains the trial court erred in ruling on the plea to the jurisdiction without proper notice.   Collard cites no authority for the proposition that notice is required before a plea to the jurisdiction can be granted.   Whether a trial court has subject-matter jurisdiction is a threshold inquiry that can be addressed by the court sua sponte and at any time.   See Mann v. Gabriel, 2012 WL 2865811, *2 (Tex.App.—Eastland July 12, 2012, no pet);  Martinez v. State, 2011 WL 861059, *2 (Tex.App.-Corpus Christi Mar. 10, 2011, no pet.).   Generally, the notice requirements for a plea to the jurisdiction (unlike a summary judgment) are left to the trial court's sound discretion.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 229 (Tex.2004).   If a plaintiff's pleadings affirmatively negate jurisdiction, it is irrelevant whether a plaintiff was given notice before the trial court's ruling.   See Mann, 2012 WL 2865811 at *2;  Martinez, 2011 WL 861059 at *2. Thus, a trial court's failure to provide notice to the parties will not necessarily constitute reversible error.   We conclude absent some showing that notice could have affected the trial court's ruling, this point presents nothing to review.   We now turn to Collard's final two points asserting the trial court erred in dismissing her claims.

In her third and fourth points of error, Collard asserts the trial court erred in granting the State's plea to the jurisdiction because she alleged a claim for which the State has waived its immunity or, at a minimum, she should be given the opportunity to amend her pleadings.

Governmental immunity from suit defeats a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction.   Miranda, 133 S.W.3d at 225–26.   When a plea to the jurisdiction challenges the pleadings, we look to whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case.   Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)).   We liberally construe the plaintiff's pleadings in favor of jurisdiction, and we look to the plaintif's intent, accepting as true the facts alleged.  Housing Auth. of City of Dallas v. Killingsworth, 331 S.W.3d 806, 810 (Tex.App.—Dallas 2011, pet. denied).

When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend.  County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002);  LTTS Charter School, Inc. v. Palosota, 362 S.W.3d 202, 207 (Tex.App.—Dallas 2012, no pet.).   On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.  Brown, 80 S.W.3d at 555;  LTTS Charter School, 362 S.W.3d at 207.

We have attempted to discern the factual basis of Collard's claims against the State.   The only wrongful conduct she has alleged against the State was that it failed to prevent the City from prosecuting her in its name.   Collard concedes the City was not properly acting as the State's agent, specifically complaining that the State had no standing to enforce the City's municipal ordinances.   She however asserted the State was liable for the City's actions because the State allowed the City to act in the State's name and therefore the City was acting as the State's agent.

In her petition, Collard did not allege the Legislature had waived immunity by statute or otherwise.   Instead, she asserted immunity was “waived” because the State, through the City acting as its agent, had initiated “commercial/civil litigation” against her.   The “litigation” she relies on is the municipal court proceeding that resulted in her being “convicted” and fined for the ordinance violations.   However, the City, whether or not it was acting as the State's authorized agent, does not have the authority to waive the State's sovereign immunity.  Tex. Nat. Resource Conservation Com'n v. IT- Davy, 74 S.W.3d 849, 857 (Tex.2002).   Rather, only the Texas legislature can waive the State's sovereign immunity.  Id. Consequently, Collard has not alleged a claim for which immunity has been waived.

We recognize that even if there has been no legislative waiver, immunity from suit will not bar a claim against the State if the State has brought a claim for affirmative relief and the claim against the State is “connected to, germane to, and properly defensive to” the matters on which the State based its claim for damages.   See City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex.2011).   In such cases, the trial court has jurisdiction over the claim to allow the plaintiff to offset the State's claim for damages.  Id.

In this case, the trial court could acquire jurisdiction over Collard's claim on this basis only if (1) the State was seeking affirmative relief against Collard, and (2) her claims were connected to, germane to, and properly defensive to matters on which the State was basing its claims.   It is undisputed that this suit was not brought by either the City or the State and neither the City nor the State have sought any affirmative relief against Collard in the trial court.   To the extent Collard relies on the 2006 prosecution of her for violations of municipal ordinances, that action did not involve an affirmative claim for monetary relief.   Further, even if we could characterize the 2006 proceeding as an affirmative claim by the State for monetary relief, any claims that might have been “connected to, germane to, and properly defensive to” such a claim had to be brought as an offset in that proceeding.   We conclude Collard's pleadings not only failed to establish the trial court's jurisdiction over her claims for monetary relief, the pleadings affirmatively negate such jurisdiction.   Thus, the trial court was not required to give Collard an opportunity to amend her pleadings.

Collard also suggests briefly the trial court erred in dismissing her suit because she alleged a valid claim for declaratory judgment challenging certain State statutes.   However, Collard has not directed us to any State statute she has challenged and has not otherwise shown the trial court erred in concluding it lacked jurisdiction over such a challenge.   We conclude this issue is inadequately briefed and presents nothing to review.   See Tex.R.App. P. 38.1(h).

We affirm the trial court's judgment.

111508F.P05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MARY LYNN COLLARD, Appellant

No. 05–11–01508–CV V.

THE STATE OF TEXAS, AppelleeAppeal from the 193rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.DC–11–10142–L).

Opinion delivered by Justice O'Neill, Justices Richter and Lang–Miers participating.

In accordance with this Court's opinion of this date, the trial court's order is AFFIRMED.   It is ORDERED that appellee the State of Texas recover its costs of this appeal from appellant Mary Lynn Collard.

Judgment entered August 29, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

MICHAEL J. O'NEILL JUSTICE