JOHN =
SIMMONS,=20
Appellee=20
(1)
On =
Appeal from the=20
9th District Court
Waller =
County,=20
Texas
Trial =
Court Cause=20
No. 2004-06-5729
MEMORANDUM=20
OPINION
Appellant, Waller County ("the =
County"),=20
sued for delinquent taxes on certain real property. All named =
defendants=20
were deceased. John Simmons ("Simmons"), son and heir of Oscar =
Simmons, a=20
named defendant, filed a motion for new trial, which was =
uncontested by=20
the County and granted by the trial court. Simmons also filed a =
motion for=20
attorney's fees, which was subsequently granted. We consider one =
issue in=20
this appeal: whether the trial court lacked subject-matter =
jurisdiction to=20
award attorney's fees against Waller County. Concluding that it =
did, we=20
reverse the order and remand the cause.
Background
In August 2006, Waller County =
obtained a=20
default judgment for delinquent property taxes for property it =
determined=20
was owned by Oscar Simmons. Simmons filed a motion for new trial, =
which=20
was unopposed, and that the trial court granted. Thereafter, =
Simmons filed=20
a motion for attorney's fees that he sought to have heard on =
November 27,=20
2006. Appellant filed a response contesting the issue of =
attorney's fees=20
and objecting to the hearing date. Appellant concurrently filed a =
motion=20
for continuance.
On November 28, the trial court =
entered=20
an order that the County pay Simmons $3,125.00 in attorney's fees. =
The=20
County filed a motion to vacate the order and to dismiss for lack =
of=20
jurisdiction. On February 9, 2007, the trial court denied the =
County's=20
motion. The County brings this interlocutory appeal from the trial =
court's=20
denial of its motion to vacate and dismiss for lack of=20
jurisdiction.
Our Jurisdiction
Appellate=20
courts have jurisdiction to consider immediate appeals of interlocutory orders=20
only if a statute expressly provides appellate jurisdiction. =
Stary v.=20
DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). Texas Civil =
Practice and=20
Remedies Code section 51.014(a)(8) allows for appeal from an =
interlocutory=20
order that grants or =
denies a=20
plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. =A7 =
51.014(a)(8) (Vernon Supp. 2006). We construe the County's motion =
to=20
dismiss and to vacate for want of jurisdiction as a plea to the=20
jurisdiction. See Klein v. Hernandez, No. 01-06-00569-CV, =
2007 WL=20
2264539, at *13 (Tex. App.--Houston [1st Dist.] Aug. 3, 2007, no =
pet. h.)=20
(construing motion to dismiss for lack of jurisdiction as plea to=20
jurisdiction); Young v. Villegas, 231 S.W.3d 1, 3 (Tex.=20
App.--Houston [14th Dist.] 2007, pet. filed) (treating motion to =
dismiss=20
for lack of subject-matter jurisdiction as plea to=20
jurisdiction).
Standard of Review
Subject-matter=20
jurisdiction is essential for a court to have the authority to =
resolve a=20
case, and trial courts lack such jurisdiction over a governmental =
unit=20
that is immune from suit. See Tex. Dep't of Transp. v. =
Jones, 8=20
S.W.3d 636, 638-39 (Tex. 1999). A party may challenge a court's=20
subject-matter jurisdiction by filing a plea to the =
jurisdiction. Id.=20
at 638. We review the trial court's ruling on such a plea =
de novo=20
because jurisdiction is a question of law. Mayhew v. Town =
of=20
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).=20
Immunity
When=20
performing governmental functions, political subdivisions of the =
state=20
enjoy governmental immunity. City of Galveston v. State, =
217=20
S.W.3d 466, 469 (Tex. 2007). Governmental immunity derives from, =
or is an=20
aspect of, the state's sovereign immunity. See Reata Constr. =
Corp. v.=20
City of Dallas ("Reata II"), 197 S.W.3d 371, 374 (Tex. 2006); =
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 =
n.3=20
(Tex. 2003). Governmental immunity protects municipalities against =
lawsuits for "money damages." See City of Galveston, 217 =
S.W.3d=20
at 468; Reata II, 197 S.W.3d at 374; Tex. Natural =
Res.=20
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. =
2002).=20
Governmental immunity encompasses two principles: immunity from =
being sued=20
and immunity from liability. IT-Davy, 74 S.W.3d at 853. =
When=20
clothed with governmental immunity, municipalities enjoy immunity =
from=20
suit unless expressly waived by the legislature. City of=20
Galveston, 217 S.W.3d at 469; Reata II, 197 S.W.3d =
at 374.=20
Immunity from suit deprives a trial court of subject-matter =
jurisdiction.=20
Reata II, 197 S.W.3d at 374.
In=20
Reata II, the supreme court held that a governmental =
entity that=20
brings suit for monetary damages against a private entity does not =
have=20
immunity as to the private entity's claims that are "germane =
to,=20
connected with, and properly defensive to the [governmental =
entity]'s=20
claims, to the extent [the private entity]'s claims offset those =
asserted=20
by the [governmental entity]." Id. at 373. The =
supreme court=20
noted that, generally, a lack of immunity hampers governmental =
functions=20
by requiring tax resources to be used for defending lawsuits and =
for=20
paying judgments, rather than for their intended purposes. =
Id. at=20
375; see also Sweeny Cmty. Hosp. v. Mendez, 226 S.W.3d =
584, 590=20
(Tex. App.--Houston [1st Dist.] 2007, no pet.). The supreme court=20
reasoned, however, that "if the governmental entity interjects =
itself into=20
or chooses to engage in litigation to assert affirmative claims =
for=20
monetary damages, the entity will presumably have made a decision =
to=20
expend resources to pay litigation costs." Id. Thus, "a=20
determination that a governmental entity's immunity from suit does =
not=20
extend to a situation where the entity has filed suit is =
consistent with=20
the policy issues involved with immunity." Id. The =
supreme court=20
concluded, "If the opposing party's claims can operate only as an =
offset=20
to reduce the government's recovery, no tax resources will be =
called upon=20
to pay a judgment, and the fiscal planning of the governmental =
entity=20
should not be disrupted." Id. "[I]t would be =
fundamentally unfair=20
to allow a governmental entity to assert affirmative claims =
against a=20
party while claiming it had immunity as to the party's claims =
against it."=20
Id. at 375-76.
Reata II has two dimensions of =
analysis: first, the party's claim must be sufficiently related to =
the=20
governmental unit's affirmative claim for relief, and second, the =
party's=20
amount of a claim for damages against the governmental entity is=20
restricted to the amount that the governmental entity will =
actually=20
recover. Sweeny Cmty Hosp., 226 S.W.3d at 592.
Did Waller County Waive =
Immunity?
There are =
many=20
instances where a trial court has discretion to award attorney's =
fees. A=20
party to a civil suit brought by or against a state agency, in =
which the=20
agency asserts a cause of action against the party, is entitled to =
recover, in addition to all other costs allowed by law or rule, =
fees,=20
expenses, and reasonable attorney's fees incurred by the party in=20
defending the agency's action if: (1) the =
court finds=20
that the action is frivolous, unreasonable, or without foundation, =
and=20
(2) the =
action is=20
dismissed or judgment is awarded to the party. Tex. Civ. Prac. =
& Rem.=20
Code Ann. =A7 105.002 (Vernon 2005). Further, many statutory =
provisions=20
specifically allow either party to recover attorney's =
fees under=20
appropriate circumstances. See,=20
e.g., Tex. Civ. =
Prac.=20
& Rem. Code Ann. =A7 37.009 (Vernon 1997) ("In any proceeding =
under this=20
chapter, the court may award costs and reasonable and =
necessary attorney's fees =
as are=20
equitable and just." (emphasis added)); DeQuire v. City of Dallas, 192 =
S.W.3d=20
663, 666 (Tex. App.--Dallas 2006, no pet.) (request for attorney's =
fees in=20
declaratory judgment is affirmative request for relief); =
Tex. =
Educ.=20
Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (UDJA =
waives=20
immunity from suit for attorney's fees).
Unlike=20
other statutory provisions which specifically allow the trial =
court to=20
award attorney's fees to either party, Chapter 33 of the Tax Code, under which =
the County=20
brought suit in the instant case, does not provide for a taxpayer =
to=20
recover attorney's fees.=20
(2)=20
Carrollton-Farmers Branch Indep. Sch. Dist. v. JPD, Inc., =
168=20
S.W.3d 184, 188 (Tex. App.--Dallas 2005, no pet.). It does, =
however,=20
provide that "a taxing unit is entitled to recover" attorney's =
fees in a=20
suit to collect delinquent taxes. Tex. Tax Code Ann. =A7 33.48 =
(Vernon 2001=20
& Supp. 2006). The fees which a taxing unit is entitled to =
recover are=20
"a charge against the property . . . and shall be collected out of =
the=20
proceeds of the sale of the property. . . ." Id. =A7 =
33.48(b).=20
Moreover, section 33.49(a) states that, "except as =
provided=20
by Subsection (b), a taxing unit is not liable in a suit to =
collect taxes=20
for court costs, including any fees for service of process, an =
attorney ad=20
litem, arbitration, or mediation, and may not be required to post =
security=20
for costs." Tex. Tax Code Ann. =A7 =
33.49(a) (Vernon=20
2001). Essentially, through =
sections=20
33.48 and 33.49 of the Tax Code, the Legislature has adopted a =
rule which=20
allows a taxing unit to recover attorney's fees but does not allow =
it to=20
be liable for them. Because =
sections=20
33.48 and 33.49 limit the recovery of attorney's fees in a =
delinquent tax=20
suit to those recovered by the taxing unit, the trial court was not authorized to =
award=20
attorney's fees to Simmons under the Tax Code.
Furthermore, we agree with the =
County=20
that a suit to recover delinquent taxes is, by its very nature, =
not a=20
claim for monetary damages, but rather a foreclosure of a lien. =
See=20
Tex. Tax Code Ann. =A7 32.01 (Vernon 2001). Because the suit =
brought by=20
the governmental unit is not one for monetary damages, =
governmental=20
immunity is not waived under Reata II. Reata =
II,=20
197 S.W.3d at 375 =
("[I]f the=20
governmental entity interjects itself into or chooses to engage in =
litigation to assert affirmative claims for monetary =
damages, the=20
entity will presumably have made a decision to expend resources to =
pay=20
litigation costs." (emphasis added)).
The legislature has expressly preserved =
absolute=20
sovereign immunity for governmental units in the collection of =
taxes.=20
City of Houston v. First City, 827 S.W.2d 462, 481 (Tex.=20
App.--Houston [1st Dist.] 1992, writ denied). A statute =
is=20
construed to waive a governmental entity's immunity from suit only =
if the=20
waiver is by clear and unambiguous language. MHCB (USA) =
Leasing and=20
Fin. Corp. v. Galveston Cent. Appraisal Dist., No. =
01-06-00529-CV,=20
2007 WL 2743487, at *10-11 (Tex. App.--Houston [1st Dist.] Sept. =
20, 2007,=20
no pet.) (citing Tex. Gov't Code Ann. =A7 311.034 (Vernon =
2005);=20
City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. =
1995)).=20
Because we find no such language regarding suits for delinquent =
taxes=20
filed under Chapter 33 of the Tax Code,=20
(3) we =
determine that=20
the County did not waive its governmental immunity from suit with =
regard=20
to the attorney's fees ordered by the trial court. The trial court, therefore, erred in =
denying the=20
County's plea to the jurisdiction.
Conclusion
Having=20
determined that the trial court lacked jurisdiction to award =
attorney's=20
fees against the County, we reverse the order of the trial court =
and=20
remand the cause for further proceedings consistent with this=20
opinion.
Tim=20
Taft
Justice
Panel=20
consists of Justices Taft, Hanks, and Higley.
1. In its original petition, Waller County =
named the=20
deceased Oscar C. Simmons and others not discernable from the =
limited=20
record on appeal as defendants and served them by posted citation. =
The=20
trial court appointed an ad litem to represent unknown heirs. John =
Simmons, a discernable heir of Oscar C. Simmons, is the only heir =
relevant=20
to this proceeding.=20
2.
Where =
there is a=20
conflict between a general =
provision=20
and a special or local provision and it is irreconcilable, the =
special or=20
local provision prevails. Tex. =
Gov't Code=20
Ann. =A7 311.026(b) (Vernon 2005). Sections 33.48 and 33.49 of the =
Tax Code=20
specifically apply to suits for delinquent taxes.=20
3. This is distinguishable from other =
provisions of=20
the Tax Code, which allow the taxpayer to seek an award of =
attorney's=20
fees. See, e.g., Tex. Tax =
Code Ann. =A7=20
42.29 (Vernon 2001). =