IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0629

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Juan Manuel Tellez,=20 Petitioner

City of Socorro,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Eighth = District of=20 Texas

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PER = CURIAM

Subject‑matter=20 jurisdiction =93involves a court=92s power to hear a case.=94 U.S. v. = Cotton,=20 535 U.S. 625, 630 = (2002);=20 accord CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). = Because the=20 trial court had power to hear this appeal of a zoning board=92s = decision, we hold=20 the court of appeals erred in dismissing it for lack of subject-matter=20 jurisdiction.

Juan Tellez=20 has operated an auto salvage yard in the City of Socorro in El=20 Paso County=20 since 1982. He alleges that six months after he purchased an adjacent = lot in=20 1998 for the same use, the City enacted its first zoning laws and = designated the=20 lot as residential. He filed suit after the City=92s Zoning Board of = Adjustment=20 denied his application for a non-conforming use permit. See Black=92s Law Dictionary 577 = (8th ed.=20 2004) (defining =93non-conforming use=94 as =93Land use that is = impermissible under=20 current zoning restrictions but that is allowed because the use existed = lawfully=20 before the restrictions took effect.=94). The trial court affirmed the = Board, and=20 Tellez appealed again. Rather than reaching the merits, the court of = appeals=20 dismissed the suit sua sponte for lack of subject-matter = jurisdiction. 164 S.W.3d 823, 830 (Tex. App.=96El Paso = 2005).

The = procedures for challenging a zoning board=92s decision are rather = unique. The=20 Local Government Code requires such challenges to be filed within ten = days after=20 a board=92s decision, to be made by =93verified petition stating that = the decision=20 of the board of adjustment is illegal . . . and specifying the grounds = of the=20 illegality,=94 and to be initiated by writ of certiorari directed to the = board=20 indicating when its =93return=94 must be made. Tex. Loc. = Gov=92t Code =A7 211.011(a)-(c). =

In = Davis=20 v. Zoning Board of Adjustment, we rejected a claim that failing to = serve the=20 writ of certiorari required by the Code deprived the courts of = subject=96matter=20 jurisdiction. 865 S.W.2d 941, 942 (Tex. 1993) = (per curiam). Instead, we held that service of = the writ=20 was the procedure by which a trial court conducts its review;=20 jurisdiction exists =93[o]nce a party = files a=20 petition within ten (10) days after a zoning board decision . . . .=94 = Id. =

Here, the=20 court of appeals dismissed Tellez=92s suit because he sued the City of = Socorro rather = than its=20 Zoning Board, and because his petition did not specify how the Board=92s = decision=20 was illegal. The City never objected to either defect. Although = subject-matter=20 jurisdiction cannot be waived, see Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000), these procedural defects can be = waived because=20 they do not affect subject-matter jurisdiction (as we held in = Davis).

We = agree with=20 the court of appeals that, while the Local Government Code does not = specify=20 against whom suit should be filed, its requirements suggest that zoning = boards=20 are the proper party as they must be served with the writ, file a = verified answer, and pay costs if found to have acted in bad = faith.=20 See Tex. Loc.=20 Gov=92t Code =A7 = 211.011.=20 But whether suit should be dismissed because the zoning board was not = joined as=20 a defendant is a prudential rather than jurisdictional question. See=20 Tex. R. Civ. P.=20 39; Brooks v. Northglen Ass=92n, = 141 S.W.3d=20 158, 162-63 (Tex. 2004); Cooper v. = Texas. = Gulf=20 Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). By failing to object, = the City=20 waived any complaint that the proper party was its appointed Board. = Tex. R. App. P. 33.1; = Brooks,=20 141 S.W.3d at 163.

Similarly,=20 while the Code requires specific allegations of illegality, nothing = indicates=20 the Legislature intended compliance to be jurisdictional. See Univ. of = Texas Sw. Med. Ctr. = v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. = 2004). If the=20 City considered Tellez=92s petition deficient, it could have objected. = Having=20 failed to do so, it waived any defect, and the court of appeals erred in = dismissing the appeal on this basis. See Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex. 1982).

Accordingly,=20 without hearing oral argument, see Tex. R. App. P. 59.1, we = grant Tellez=92s=20 petition for review, reverse the judgment of the court of appeals, and = remand=20 the case to that court for further proceedings.

OPINION=20 DELIVERED: June 1, 2007