Dewhurst v. Gulf Marine Institute of Technology

• Decision Date: 12 July 2001
• Parties: (Tex.App.-Corpus Christi 2001) DAVID DEWHURST, COMMISSIONER OF THE GENERAL LAND OFFICE OF THE STATE OF TEXAS , Appellant, v. GULF MARINE INSTITUTE OF TECHNOLOGY , Appellee. NUMBER 13-00-738-CV
• Court: Texas Court of Appeals

Page 91

55 S.W.3d 91 (Tex.App.-Corpus Christi 2001)

DAVID DEWHURST, COMMISSIONER OF THE GENERAL LAND OFFICE OF THE STATE OF TEXAS , Appellant, v. GULF MARINE INSTITUTE OF TECHNOLOGY , Appellee.

NUMBER 13-00-738-CV

COURT OF APPEALS OF TEXAS, CORPUS CHRISTI

July 12, 2001.

Rehearing Overruled September 13, 2001.

On appeal from the 130th District Court of Matagorda County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Joe Foy, JR., Asst. Atty. Gen., Austin, for Appellant.

Ronald B. Collins, Duckett, Bouligny & Collins, El Campo, William P. Maines, McDade & Fogler, Houston, for Appellee.

Before Justices Hinojosa, Castillo, and Amidei ¹

O P I N I O N

Opinion by Justice Amidei

This is an interlocutory appeal of the denial of a plea to the jurisdiction filed by David Dewhurst, Commissioner of the General Land Office of the State of Texas (hereinafter referred to as "Dewhurst"), defendant, appellant in this Court, in a suit brought by Gulf Marine Institute of Technology (hereinafter referred to as "GMIT"), appellee. See Tex. Civ. Prac. & Rem. Code Ann.§ 51.014(a)(8) (Vernon Supp. 2001). In one issue, Dewhurst contends the trial court lacked subject matter jurisdiction because the sovereign cannot be sued to specifically perform a contract absent a statutory mandate or legislative consent to suit, neither of which is present in this case. We affirm.

Procedural Background

GMIT filed its original petition on May 12, 2000. Dewhurst filed his plea to the jurisdiction, and thereafter filed his original answer subject to his plea to the jurisdiction. GMIT filed its response to Dewhurst's plea to the jurisdiction. Dewhurst filed his reply to GMIT's response to Dewhurst's plea to the jurisdiction. The trial court held a hearing on Dewhurst's plea to the jurisdiction, and denied the plea on November 15, 2000. No findings of fact or conclusions of law were requested or filed. Dewhurst filed a notice of appeal on December 4, 2000.

Appeals Court Jurisdiction/Standard of Review

We have jurisdiction to review a trial court's denial of a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)(Vernon Supp. 2001). For purposes of a plea to the jurisdiction, the court looks only to the allegations in the plaintiff's petition, unless evidence is necessary to resolve the jurisdictional issues raised. Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex. App.--Corpus Christi 1998, pet. dism'd w.o.j.). We take the plaintiff's factual allegations as true, Brannon v. Pacific Employer's Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (Tex. 1949); Alamo Cmty. College Dist. v. Obayashi Corp., 980 S.W.2d 745, 746 (Tex. App.--San Antonio 1998, pet. denied), and we construe them in favor of the pleader. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

The district court was required to liberally construe the allegations in favor of jurisdiction unless the face of the petition affirmatively demonstrates a lack of jurisdiction. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).

In summary, to successfully challenge at the pretrial stage a trial court's jurisdiction to hear the subject matter of plaintiff's claim, the defendant must demonstrate either that: (1) the plaintiff's pleadings, taken as true, affirmatively establish that the court does not have subject-matter jurisdiction, or (2) the plaintiff pleaded fraudulently or in bad faith with the purposes of conferring jurisdiction where under the true facts the court would not have it.

Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676-77 (Tex. App.--Corpus Christi 2001, no pet.).

For purposes of this appeal the material facts are undisputed. It is a matter of law to determine whether GMIT's suit is a suit against the State for specific performance and damages rather than a suit for injunctive relief and declaratory judgment.

Facts

GMIT planned to utilize an oil and gas offshore platform to convert to manned mariculture research facilities to develop techniques to grow finfish. Having determined that a platform owned by Seagull Energy E & P, Inc. (hereinafter referred to as "Seagull"), also a defendant in this case, was suitable for its operations, GMIT sought and received from Gary Mauro, who was then the Commissioner of the General Land Office ("GLO"), the grant of its application to receive as assignee the surface and subsurface lease held by Seagull on state lands in the Gulf of Mexico off Matagorda Island, Matagorda County, Texas. The lease had been used by Seagull and Tenneco, its predecessor, to locate a platform to directionally drill two wells to federal lands adjacent thereto and produce oil and gas therefrom, and was never a lease for the production of oil and gas from state-owned lands. The term of the lease was fifty years from August 27, 1986, the date of the lease to Tenneco, or until the time at which the two wells shall have been plugged and abandoned in accordance with all applicable rules and regulations promulgated by oil and gas regulatory agencies having jurisdiction with respect thereto. Prior to the assignment being approved by the GLO, full disclosure was made to the GLO of GMIT's intended use of the platform for mariculture purposes and not the production of oil and gas, and GMIT required Seagull to plug and abandon and remove all production equipment from the platform. The lease did not prohibit a purpose or use other than the original use utilized by the first lessee, Tenneco. Although the lease was never a lease of State oil and gas, under which the State could require removal of the platform after plugging and abandonment of wells, see 31 Tex. Admin. Code § 9.91 (1999), Mauro required GMIT to provide a 2.6 million-dollar bond to insure the removal of the platform upon abandonment of the mariculture operations. The bond inured to the benefit of the State notwithstanding Seagull was named obligee. The State could not have required the bond of Seagull, as it had already obtained an assignment from Tenneco without bond. Commissioner Mauro: (1) knew the purpose for which GMIT wanted the lease and platform at the time of the assignment; (2) knew there was no oil or gas production from the platform at that time; (3) had the authority to lease the surface and subsurface of the leased property and to make subsequent assignment of the lease; (4) approved the assignment from Seagull to GMIT, as it made perfect sense and perfect economics for the State to receive more from GMIT than it had from the previous lessees; (5) stated that the proposed mariculture project would be a permissible use under the terms of the original Tenneco lease; (6) made no other requirements for the assignment and believed that GMIT's proposed mariculture project for the platform would go forward, as he believed everything had been taken care of and there were no other requirements necessary for GMIT to conduct its project; (7) contemplated making amendments to the lease because the project was unique and the GLO had not developed forms for offshore mariculture operations; and (8) stated that since GMIT assumed the liability by giving something of value to the State, GMIT had the authority to begin its project and the State had to let GMIT use the property. In September 1998, the GLO furnished GMIT with the forms for the lease that dealt with the mariculture operations. The GLO did not tender a draft of the proposed amendments to the lease to GMIT until December 1998. Suggested revisions to this draft were made by GMIT and returned to the GLO for approval. GMIT paid the State fifty dollars consideration to make the assignment. The assignment and GMIT's bond were approved and accepted in writing by the GLO on September 18, 1998. On January 1, 1999, Dewhurst became the Commissioner of the GLO, and after taking office, directed that the assignment be recorded in the Matagorda County Deed Records. Dewhurst negotiated with GMIT for "roughly" one year to modify the lease terms as originally contemplated by Mauro. During the year of negotiations, Dewhurst's staff sat on the negotiations for 7 ½ months without doing anything. Dewhurst could not explain the delay. On May 12, 1999, Dewhurst notified GMIT that he was denying GMIT the right to use the platform area for mariculture purposes; that he considered the assigned lease to be terminated; that he was not convinced GMIT's project was a "coherent," "reasonable" business plan which would be an "unqualified financial success." Dewhurst did not know of any other use (other than GMIT's project) or competing use for which the platform could be used. The GLO did not indicate that GMIT's financing was inadequate.

Sovereign Immunity; Whether Legislature Must Consent

Dewhurst argues that GMIT's suit is for specific performance and is a suit against the State requiring the consent of the legislature, which GMIT did not obtain prior to filing. Federal Sign Co. v. Texas S. Univ.,951 S.W.2d 401, 405 (Tex. 1997). However, as GMIT points out, a private litigant does not need legislative permission to sue the State for a state official's violations of state law, because such a suit is not a suit against the State barred by sovereign immunity. Director of the Dep't of Agric. and Env't v. Printing Indus. Ass'n., 600 S.W.2d 264, 265-66 (Tex. 1980) (holding legislative consent is not required for suit for injunctive relief against state agency to halt unauthorized printing equipment and printing activities); Texas Highway Comm'n v. Texas Ass'n of Steel Importers, Inc., 372 S.W.2d 525, 530 (Tex. 1963) (holding legislative consent not required for declaratory judgment suit against Highway Commission to determine the parties' rights); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945) (holding legislative consent not required for declaratory judgment suit against State Comptroller to...