Hunt v. City of Diboll

• Decision Date: 08 November 2017
• Docket Number: NO. 12-17-00001-CV,12-17-00001-CV
• Parties: William Paul HUNT and ADE-WIFCO Steel Products Inc., and Others Similarly Situated, Appellants v. CITY OF DIBOLL, Texas, John McClain, in His Official Capacity as Mayor of the City of Diboll, Steve Baker, in His Official Capacity as Chief of Police of the City of Diboll, Gerry Boren, in His Official Capacity as City Manager of City of Diboll, et al., Appellees
• Court: Texas Court of Appeals

574 S.W.3d 406

William Paul HUNT and ADE-WIFCO Steel Products Inc., and Others Similarly Situated, Appellants

v.CITY OF DIBOLL, Texas, John McClain, in His Official Capacity as Mayor of the City of Diboll, Steve Baker, in His Official Capacity as Chief of Police of the City of Diboll, Gerry Boren, in His Official Capacity as City Manager of City of Diboll, et al., Appellees

NO. 12-17-00001-CV

Court of Appeals of Texas, Tyler.

Opinion delivered November 8, 2017

Mr. Scott A. Stewart, Mr. Russell J. Bowman, for Appellants.

Mr. Thomas J. Williams, Fort Worth, Mr. Robert T. Cain Jr., Lufkin, Mr. Robert Alderman Jr., Ms. Erika Neill, Lufkin, for Appellees.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

OPINION

Greg Neeley, Justice

Appellants, William Paul Hunt and ADE-WIFCO Steel Products, Inc. (ADE), appeal from the trial court’s order granting pleas to the jurisdiction filed by Appellees, the City of Diboll (the City), John McClain, in his official capacity as Mayor of the City of Diboll, Steve Baker, in his official capacity as Chief of Police of the City of Diboll, and Gerry Boren, in his official capacity as City Manager of the City of Diboll (the City officials), and American Traffic Solutions, Inc. and American Traffic Solutions, LLC (ATS). Appellants raise three issues on appeal. We affirm in part, and reverse and remand in part.

BACKGROUND

The City of Diboll is a home-rule municipality. Diboll’s city charter requires that ordinances imposing a "penalty, fine, or forfeiture" are not effective until published. In 2006, the Diboll city council enacted ordinance 06-07, which authorizes the use of red light cameras to capture red light violations at roadway intersections. A violation of this ordinance is a criminal offense and carries a penalty of $100. In 2014, the city council enacted ordinance 01-14, which tracks the provisions of Chapter 707 of the Texas Transportation Code, and provides a $75 civil penalty for red light violations captured by a red light camera.¹ Ordinance 01-14 provides that (1) the registered owner of the vehicle is responsible for the $75 penalty; and (2) an individual may contest liability by requesting an administrative hearing, the timelines and procedures for which are set forth in the ordinance. ATS, a private company, contracted with the City to implement and operate Diboll’s red light camera system. ATS provides a "turnkey solution" for the operation and enforcement of Diboll’s red light camera system which includes (1) collecting the funds into a special account, (2) providing a web based citation processing system, (3) mailing the violation notices, (4) obtaining vehicle registration to issue citations, and (5) providing expert testimony in court.

In 2015, Appellants received notices of infractions for red light violations captured by red light cameras in the City of Diboll. The notices alleged violations of ordinance 06-07 and stated the registered owners of the vehicles owed a $75 civil penalty to the City. The notices also contained instructions for the payment of the penalty and on how to request an administrative hearing to contest liability. Hunt did not pay the penalty, and sent a letter to the City stating that he did not consent to a non-judicial decision, demanding a jury trial, and asserting other constitutional rights guaranteed in criminal proceedings.

A law firm representing the City subsequently sent a notice to Hunt seeking to collect the unpaid penalty. The notice indicated Hunt owed a $125 penalty for the red light violation. The City set an administrative hearing on the violation, and sent notice to Hunt, who did not appear for the hearing. Subsequently, Diboll placed a registration hold on Hunt’s vehicle. Unlike Hunt, ADE paid the $75 penalty assessed against it.

At the time Appellants received their notices of infraction, neither ordinance 06-07 nor ordinance 01-14 had been published in the City’s official newspaper. Not until November 2016, did the City publish ordinance number 01-14 in its official newspaper.

Appellants brought an action, on their own behalf and on the behalf of a putative class of individuals assessed red light penalties by Diboll, pursuant to the Uniform Declaratory Judgment Act (UDJA) challenging the validity of ordinances 06-07 and 01-14. Alternatively, they sought a declaratory judgment that Baker, McClain, and Boren, in their official capacities, acted ultra vires by installing red light camera systems and collecting red light camera penalties. Appellants sought an injunction prohibiting the City and its officials from operating red light camera systems and enforcing red light penalties. They also made a claim for reimbursement of the red light penalties, or alternatively, a refund of penalties paid under Article I, Section 17 of the Texas Constitution. Appellants also sued ATS for fraud and violations of the Deceptive Trade Practices Act (DTPA).

The City, its officials, and ATS filed pleas to the jurisdiction alleging the trial court lacked subject matter jurisdiction to hear Appellants' claims against them. In its original and supplemental pleas to the jurisdiction, the City argued that the trial court lacked subject matter jurisdiction for the following reasons: (1) Appellants failed to exhaust their administrative remedies, (2) Hunt lacked standing to seek reimbursement because he failed to pay the $75 penalty, (3) Appellants lacked standing to seek declaratory relief regarding the constitutionality of Diboll’s red light ordinance because the pleadings complained of violations of criminal protections pursuant to the Texas Constitution, but neither Hunt nor ADE were actually charged with a criminal offense, (4) Appellants' pleadings affirmatively negate jurisdiction on their takings claims because the pleadings allege that the taking occurred pursuant to unlawful or unauthorized authority, and (5) the City’s immunity had not been waived.

The trial court granted both pleas to the jurisdiction and dismissed all of Appellants' claims against the City, its officials, and ATS, with prejudice.² Consequently, the trial court did not rule on Appellants' petition for class certification or their motion for summary judgment. This appeal followed.

CLAIMS AGAINST THE CITY AND ITS OFFICIALS

In Appellants' first issue, they contend the trial court erred in granting the City’s plea to the jurisdiction because (1) they were not obligated to exhaust their administrative remedies, as ordinance 06-07 is a criminal ordinance containing no administrative remedies and ordinance 01-14 had not been published at the time penalties were assessed, (2) their claims are not barred by immunity, and (3) they have standing to bring their claims because the City’s subsequent publication of ordinance 01-14 did not render their claims moot.

Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Id. The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. Id. To prevail on a plea to the jurisdiction, a defendant must demonstrate an incurable jurisdictional defect apparent on the face of the pleadings rendering it impossible for the plaintiff’s petition to confer jurisdiction on the district court. MAG-T, L.P. v. Travis Cent. Appraisal Dist. , 161 S.W.3d 617, 624 (Tex. App.—Austin 2005, pet. denied) (citing Bybee v. Fireman’s Fund Ins. Co. , 160 Tex. 429, 438, 331 S.W.2d 910, 917 (1960) ); City of San Angelo v. Smith , 69 S.W.3d 303, 305 (Tex. App.—Austin 2002, pet. denied).

Whether a trial court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we review a challenge to the trial court’s subject matter jurisdiction de novo. Id. In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. See Blue, 34 S.W.3d at 554-55. We construe the plaintiff’s pleadings liberally in the plaintiff’s favor and look to the pleader’s intent. Miranda , 133 S.W.3d at 226. We take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Id. at 228.

If a plaintiff fails to plead sufficient facts affirmatively demonstrating the trial court’s jurisdiction, but the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. However, if the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. Also, through inaction, a plaintiff may lose the opportunity to amend. See Haddix v. Am. Zurich Ins. Co. , 253 S.W.3d 339, 347 (Tex. App.—Eastland 2008, no pet.) ; Tara Partners Ltd. v. City of S. Houston , 282 S.W.3d 564, 570 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

As a non-movant, the plaintiff’s burden is to produce evidence raising a genuine issue of material fact on the elements specified in defendant’s plea. TEX. R. CIV. P. 166a(i) ; see Miranda , 133 S.W.3d at 228. If the evidence raises a fact question on jurisdiction, the plea must be denied. See, e.g., Tex. Dep't of Aging & Disability Servs. v. Loya , 491 S.W.3d 920, 923-24 (Tex. App.—El Paso 2016, no pet.). However, if the defendant’s evidence is undisputed and demonstrates a lack of jurisdiction, and if the plaintiff’s responsive evidence does not raise a fact question on the jurisdictional issue, as a...