Potter County Attys. v. Stars & Stripes

• Decision Date: 12 September 2003
• Docket Number: No. 07-02-0519-CV.,07-02-0519-CV.
• Citation: 121 S.W.3d 460
• Parties: POTTER COUNTY ATTORNEY'S OFFICE; Sonya Letson, Potter County District Attorney; Amarillo Police Department; and Jerry Neal, Amarillo Chief of Police, Appellants, v. STARS & STRIPES SWEEPSTAKES, L.L.C., Appellee.
• Court: Texas Court of Appeals

121 S.W.3d 460

POTTER COUNTY ATTORNEY'S OFFICE; Sonya Letson, Potter County District Attorney; Amarillo Police Department; and Jerry Neal, Amarillo Chief of Police, Appellants, v. STARS & STRIPES SWEEPSTAKES, L.L.C., Appellee.

No. 07-02-0519-CV.

Court of Appeals of Texas, Amarillo.

September 12, 2003.

Kyle G. Thomas, C. Scott Brumley, Asst. County Attys., Amarillo, for Appellants.

Roland Gutierrez, San Antonio, for Appellee.

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

This is an interlocutory appeal from the trial court's denial of pleas to its jurisdiction. Appellee Stars & Stripes Sweepstakes, L.L.C., brought suit in the 320th District Court of Potter County against the Potter County Attorney's Office, Sonya Letson, Potter County District [sic] Attorney, the Amarillo Police Department, and Jerry Neal, Amarillo Chief of Police, seeking release of 124 electronic amusement machines, known as eight-liners.

Appellee is the owner of the machines and leased them to Sunrise Entertainment, which maintained a place of business in Amarillo, Potter County. Amarillo police officers seized the machines and other items alleged to be gambling paraphernalia while executing a search warrant at Sunrise Entertainment on May 16, 2002. The search warrant was issued by the Hon. John B. Board, judge of the 181st District Court of Potter County.

Appellee filed the instant suit on July 26, 2002. On July 31, 2002, 15 felony indictments were handed down in the 181st District Court against five individuals associated with Sunrise Entertainment. On August 16, 2002, misdemeanor charges were filed in County Court at Law No. 1 of Potter County against two others associated with the business.¹ The seized eightliners are being held by the Amarillo Police Department.

The Potter County Attorney's Office and Sonya Letson (Potter County) filed a plea to the jurisdiction requesting the 320th District Court to dismiss the suit against them for want of subject matter jurisdiction. The City of Amarillo (City), responding for Amarillo Police Department and Jerry Neal as Amarillo Chief of Police, filed a motion to dismiss for lack of jurisdiction, also challenging the court's subject matter jurisdiction. After a hearing, the trial court denied both challenges to the jurisdiction. Finding merit in appellants' interlocutory appeal, we will reverse the trial court's rulings.

APPELLATE JURISDICTION OVER INTERLOCUTORY APPEAL

We first consider our own jurisdiction over this interlocutory appeal. Generally, a Texas appellate court has jurisdiction to hear an appeal only if it is from a final judgment. Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212, 217 (Tex.App.-Corpus Christi 2001, no pet.). Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). We strictly construe statutes giving us jurisdiction over interlocutory appeals. America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App.-Houston [14th Dist.] 1997, no writ). Here, appellants are relying on section 51.014(a)(8) of the Civil Practice and Remedies Code in appealing the court's orders. This section provides that an order granting or denying a plea to the jurisdiction by a governmental unit, as that term is defined by section 101.001, may be challenged immediately by appeal. Tex. Civ. Prac. & Rem.Code Ann. §§ 51.014(a)(8), 101.001 (Vernon Supp.2003).

The term, "governmental unit" means "the state [of Texas] ...," "a political subdivision of this state, including any city, county, ..." and "any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution." Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(A), (B), (D). Appellee's live pleading names as defendants "Potter County Attorney's [O]ffice ... an agency of the State of Texas ... Sonya Letson, Potter County [A]ttorney ... an agent of the State of Texas ... Amarillo Police Department ..." and "Jerry Neal, Chief of Police of the Amarillo Police Department." We must determine if appellants are "governmental units" as defined by section 101.001.

This court, pointing to the doctrine that a suit against a governmental official in his or her official capacity alone is essentially a suit against the governmental entity, has held that such suits may properly be the subject of interlocutory appeals under section 51.014(a)(8) as suits against governmental units. Ware v. Miller, 82 S.W.3d 795, 800 (Tex.App.-Amarillo 2002, pet. denied); Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653, 657 n. 3 (Tex.App.-Amarillo 2000, no pet.).² Although appellee's petition does not specifically state whether the suit is brought against Letson and Neal in their individual or official capacities, it does identify Letson as "an agent of the State of Texas" and Neal as "Chief of Police of the Amarillo Police Department." Looking to the substance of the pleadings, the relief appellee seeks is narrowly described. Appellee does not seek personal damages against Letson or Neal, but asks that they be required to take action in their official capacities. We find, therefore, that appellee's claims are not personal in nature, and that Letson and Neal are sued in their official capacities.

A county is specifically listed as a "governmental unit" in section 101.001(3)(B) of the Civil Practice and Remedies Code. In addition, the Office of County Attorney is created by the Texas Constitution, and therefore would also be considered a governmental unit under section 101.001(3)(D). Tex. Const. art. V, § 21. Consequently, Letson in her capacity as County Attorney and the Office of County Attorney are entitled to appeal the district court's order denying their plea to the jurisdiction. Civ. Prac. & Rem.Code § 51.014(a)(8).

A city in Texas is considered a political subdivision of the state and as such is a governmental unit. § 101.001(3)(B). Appellee does not challenge the City's contentions that the Amarillo Police Department is not a body separate from the City, and that appellee's suit against the police department is thus against the City. We also have jurisdiction to consider the interlocutory appeal of Neal and the City.

PLEA TO JURISDICTION

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. See Dolenz v. Texas State Bd. of Med. Exam'rs, 899 S.W.2d 809, 811 (Tex.App.-Austin 1995), aff'd, 981 S.W.2d 487 (Tex. App.-Austin 1998). A petition must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When considering an interlocutory appeal from a denial of a plea to the jurisdiction, we are not required to look solely to the pleadings, but may consider evidence relevant to the jurisdictional issues raised. Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). We construe the pleadings liberally in the plaintiff's favor. Texas Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002); Texas Ass'n of Bus., 852 S.W.2d at 446. Because the question of subject matter jurisdiction is a legal question, we review the trial court's order denying appellants' pleas to the jurisdiction under a de novo standard of review. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

An initial cause of difficulty in this case is that appellee has not been consistent in describing the relief it seeks in its suit against appellants. Appellee's first amended pleading in the trial court, entitled Plaintiff's First Amended Petition for Return of Illegally Seized Property and Motion to Show Cause Subject to Article 18.18(b) of the Texas Code of Criminal Procedure, alleges that the seized machines are not gambling devices under the definition in section 47.01, Penal Code, and prays the machines be "released to the custody of" appellee and the trial court order the defendants to appear and show cause why the machines should not be "turned over" to appellee. During the hearing on the pleas to the jurisdiction, appellee asserted that it sought only to be notified of any forfeiture proceedings, and disclaimed seeking injunctive relief. In its brief to this court, appellee again states that it is not seeking injunctive relief against any of the defendants, but seeks a hearing pursuant to Article 18.18(b) of the Code of Criminal Procedure and to require appellants to provide notice to it of the hearing. Appellee's pleadings, however, must be judged by their substance, as determined by what effect they will have on the proceeding, if granted by the trial court. Austin Neighborhoods Council, Inc. v. Board of Adjustment, 644 S.W.2d 560, 565 (Tex.App.-Austin 1982, writ ref'd n.r.e.); Bryan v. General Elec. Credit Corp., 553 S.W.2d 415, 418 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). The title of the pleading does not determine its nature. Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999); Ware, 82 S.W.3d at 799.

Appellants have asserted special exceptions not yet addressed by the trial court, one of which objects that appellee does not expressly identify the machines it owns as those seized under the search warrant. We note also that appellee has not pled that it is entitled to possession of the machines. For purposes of our review of the pleas to jurisdiction,³ though, we consider that appellee's petition, construed liberally in its favor, asserts ownership of the 124 seized machines and seeks to obtain possession of them against their possible forfeiture or destruction under the forfeiture statutes.

ISSUES

Potter County presents two issues, arguing that the trial court lacks subject matter jurisdiction over appellee's suit (1) because its claim for...