OPINION ON=20
REHEARING
We withdraw=20
our Opinion of January 18, 2007 and issue this one in its stead. =
We deny=20
appellants' motion for rehearing.
Appellants,=20
Joseph Knute Nivens, Wilbur Dunten, and Marvin Fontenot, =
(collectively=20
"the taxpayers"), challenge the trial court's order granting a =
plea to the=20
jurisdiction in favor of appellee, the City of League City ("the =
City").=20
We affirm.
Factual and=20
Procedural Background
In 1981,=20
the City consented to create Municipal Utility Districts ("MUDs") =
One=20
through Six, which are located within the boundaries of the =
City.=20
(1) The City executed contracts ("utility agreements") =
with each=20
MUD. The utility agreements were for the acquisition and =
construction of=20
water, sewer, and drainage systems. Each utility agreement also =
noted that=20
both the City and the MUD would levy and collect ad valorem taxes =
on the=20
taxable property in each MUD and the City would allocate 40% of =
the taxes=20
it collected from the residents to the respective MUD. Seven years =
later,=20
the City amended its utility agreements with MUD Numbers Two and =
Three and=20
stated that the allocation percentage payable by the City to each =
MUD was=20
to be determined in accordance with a "complex formula." The next =
year,=20
the City also amended its original utility agreement with MUD =
Number Six=20
to reflect the same change.
A =
few years=20
later, the taxpayers, who resided in the MUDs, sued the City, MUD =
Numbers=20
Two, Three, and Six, and their respective directors to recover =
damages=20
equal to the taxes that they had paid on their property. The =
taxpayers,=20
asserting claims against the City for money had and received, =
breach of=20
contract, and "mistake," allege that, under the utility =
agreements, the=20
City collected ad valorem taxes from them in excess of the amount =
that it=20
was legally permitted to collect pursuant to section 54.016(f) of =
the=20
Texas Water Code. =
The =
taxpayers argue=20
that section 54.016(f) provides that the contracts must contain =
"an=20
allocation agreement to assure that the total ad valorem taxes =
collected=20
by [the City] and the [MUDs] from the taxable property within the=20
[municipal utility] district does not exceed an amount greater =
than the=20
[C]ity's ad valorem taxes on such property." The taxpayers also =
argue that=20
the tax limitations contained in section 54.016(f) became part of =
and=20
govern the utility agreements.
In=20
response, the City filed its first amended answer and plea to the=20
jurisdiction. In its plea, the City alleged that the trial court =
lacked=20
jurisdiction over the taxpayers' case because the taxpayers failed =
to=20
plead sufficient facts to overcome the City's immunity from suit. =
The=20
trial court granted the City's plea to the jurisdiction and =
dismissed the=20
taxpayers' case for want of jurisdiction.Plea to the=20
Jurisdiction
In their=20
sole issue, the taxpayers argue that the trial court erred in =
granting the=20
City's plea to the jurisdiction.
A =
plea to=20
the jurisdiction is a dilatory plea challenging a trial court's =
authority=20
to determine the subject matter of the cause of action without =
defeating=20
the merits of the case. City of Houston v. Northwood Mun. =
Util. Dist.=20
No. 1, 73 S.W.3d 304, 308 (Tex. App.--Houston [1st =
Dist.]=20
2001, pet. denied) (citing Bland I.S.D. v. Blue, 34 =
S.W.3d 547,=20
554 (Tex. 2000)). While the underlying claims may form the context =
in=20
which a plea to the jurisdiction is raised, the purpose of the =
plea is not=20
to preview or delve into the merits of the case, but to establish =
the=20
reason why the merits of the underlying claims should never be =
reached.=20
Id. In a plea to the jurisdiction, "the pleader must =
allege facts=20
that affirmatively demonstrate the court's jurisdiction to hear =
the=20
cause." City of Houston v. Rushing, 7 S.W.3d 909, 913 =
(Tex.=20
App.--Houston [1st Dist.] 1999, pet. denied). A trial court's =
ruling on a=20
plea to the jurisdiction presents a legal question which is =
reviewed de=20
novo. See Northwood, 73 S.W.3d at 308. Questions =
involving the=20
application of the principles of sovereign and governmental =
immunity and a=20
party's standing to bring an action are the proper subjects of a =
plea to=20
the jurisdiction. See Brown v. Todd, 53 S.W.3d =
297,=20
300-01 (Tex. 2001). Governmental =
Immunity
In=20
response to the taxpayers' issue, the City asserts that this =
entire action=20
is barred by the principle of governmental immunity and that the =
taxpayers=20
have not pleaded sufficient facts to overcome this =
immunity.
Governmental=20
immunity protects political subdivisions of the State from suit, =
unless=20
immunity from suit has been waived. See Gen. Servs. Comm'n v.=20
Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).=20
Governmental immunity inures to the benefit of a municipality =
insofar as=20
the municipality engages in the exercise of governmental =
functions, except=20
when that immunity has been waived. Fort Worth Indep. Sch. =
Dist. v.=20
City of Fort Worth, 22 S.W.3d 831, 840 (Tex. =
2000).
Governmental=20
immunity from suit defeats a trial court's subject-matter =
jurisdiction and=20
is properly asserted in a plea to the jurisdiction. Tex. Dep't =
of=20
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). =
Generally, a party=20
suing a governmental entity must establish consent to sue, which =
may be=20
alleged either by reference to a statute or to express legislative =
permission. See Mo. Pac. R.R. Co. v. Brownsville Navigation=20
Dist., 453 S.W.2d 812, 814 (Tex. 1970).
However,=20
where a claim for declaratory or injunctive relief is brought =
seeking the=20
refund of illegally collected tax payments, governmental immunity =
will not=20
apply if the taxpayer alleges that the payments were made as a =
result of=20
fraud, mutual mistake of fact, or duress, whether express or =
implied.=20
See Dallas County Cmty. College Dist. v. Bolton, =
185=20
S.W.3d. 868, 876-79 (Tex. 2005) (holding that a taxpayer cannot =
bring a=20
suit for the return of illegally collected taxes if the payments =
were made=20
voluntarily); see also Camacho=20
v.=20
Samaniego, 954 =
S.W.2d 811, 822=20
(Tex. App.--El Paso 1997, pet. denied). =
The=20
revenue generated from a tax determined to be illegal should not =
be=20
treated as property of the State or municipality to which the =
principles=20
of sovereign immunity apply, and an illegally collected fee should =
be=20
refunded if paid as a result of fraud, mutual mistake of fact, or=20
duress, without =
respect to=20
waiver of sovereign immunity. See=20
Camacho, 954 =
S.W.2d at=20
822;=20
Austin =
Nat'l=20
Bank of Austin v. Sheppard, 71 S.W.2d =
242, 246=20
(Tex. 1934). No legislative consent to sue is needed under these=20
circumstances.
In this=20
case, the taxpayers have not pleaded sufficient facts to establish =
that=20
their claims are not barred by the City's governmental immunity. =
In their=20
First Amended Petition, the taxpayers assert a claim for "money =
had and=20
received" and allege that "the money collected by the DEFENDANTS =
for=20
illegal taxes rightfully belongs to PLAINTIFFS and in equity and =
good=20
conscience should be returned to PLAINTIFFS."=20
(2) The =
taxpayers also=20
assert a claim for breach of contract and "mistake." These =
pleadings do=20
not seek declaratory and/or injunctive relief regarding the levy =
and=20
refund of illegal taxes and do not allege that the taxpayers made =
any=20
payments as a result =
of fraud,=20
mutual mistake of fact, or duress.=20
(3) =
Furthermore, in=20
light of the mandates of Texas Rule of Civil Procedure 13, the =
taxpayers=20
cannot plead that they made any payment of taxes as a result of a =
mutual=20
mistake of fact.=20
(4) The trial court was presented with evidence from =
both the=20
taxpayers and the City establishing that the City did not collect =
the=20
taxes as a result of a mutual mistake of fact. The trial court =
received=20
the affidavit of Joe Lamb, submitted by the taxpayers in response =
to the=20
City's motion for summary judgment, and copies of the contracts =
between=20
the City and the MUDs at issue in this case. This evidence =
establishes=20
that the City was required to collect the ad valorem taxes from =
the=20
taxpayers pursuant to the series of contracts between the MUD =
and the=20
City. The taxes were not collected as a result of a mistake =
by the=20
City, and the parties both agree that the City has been =
collecting the=20
taxes pursuant to these contracts since about 1981.=20
(5) The =
taxpayers=20
alleged no facts which would establish that the taxes were =
collected as a=20
result of a mistake of fact on the part of the City. Accordingly, the=20
claims for money had and received, mistake, and breach of =
contract=20
are barred by governmental immunity. See=20
Camacho, 954 =
S.W.2d=20
at =
826. =
The =
taxpayers =
also=20
assert that the City's immunity to this suit has been expressly =
waived by=20
section 51.075 of the Texas Local Government Code. This section =
provides=20
that a home rule municipality such as the City "may plead and be =
impleaded=20
in any court." Tex. Loc. Gov't Code Ann. =A7 51.075 (Vernon =
1999).=20
However, recently, in Tooke v.City of Mexia, 197 S.W.3d =
325,=20
342-43 (Tex. 2006), the Texas Supreme Court ruled that this =
statute does=20
not constitute a clear and unambiguous waiver of immunity from =
suit.=20
Accordingly, we hold =
that the=20
trial court did not err in granting the City's plea to the =
jurisdiction on=20
the basis of governmental immunity.=20
(6)
Conclusion
Accordingly, we deny=20
the taxpayers' motion for rehearing and affirm the trial court's =
judgment.=20
George C. =
Hanks,=20
Jr.
Justice
Panel=20
consists of Chief Justice Radack and Justices Jennings and Hanks.=20
1. =A7=20
2. --=20
3.
The =
taxpayers=20
represented to the trial court that their causes of action are =
contractual=20
claims asserting that "PLAINTIFFS [sic] claim against the City is =
based on=20
Money Had and Received, Mistake, and Breach of Contract. All =
causes of=20
action are on either express or implied contracts, not tort as=20
mischaracterized by the City."=20
4. Rule 13 =
sets forth=20
the sanctions available to the trial court for the filing of =
frivolous=20
pleadings by parties and their counsel. Tex. R. Civ. P. =
13.=20
5. Plaintiffs' First=20
Amended Petition states that the contracts "provided, inter alia, =
that the=20
[City] and the [MUD] would both levy and collect ad valorem taxes =
on the=20
taxable property and the [City] would allocate forty-percent of =
the taxes=20
collected from these residents for payment to the [MUD]."=20
6. ' ' '=20