KingVision Pay-Per-View, LTD v. Dallas County, Texas ( 2014 )

AFFIRM, and Opinion Filed February 20, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00765-CV
KINGVISION PAY-PER-VIEW, LTD., GARDEN CITY BOXING CLUB, INC.,
AND ENTERTAINMENT BY J&J, INC., Appellants
V.
DALLAS COUNTY, TEXAS, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-11471-F
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Lewis
Opinion by Justice Lang-Miers
Appellants KingVision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and
Entertainment by J&J, Inc. appeal from an order granting a plea to the jurisdiction and motion to
dismiss filed by appellee Dallas County, Texas. We affirm.
BACKGROUND
In 2001 and 2003 appellants sued multiple defendants alleging that they illegally
intercepted and aired pay-per-view boxing matches at various establishments. After obtaining
judgments against the defendants, appellants delivered writs of execution to Michael Dupree,
who at the time was the constable of Dallas County Precinct No. 5. After Dupree failed to
perform his duties with respect to the writs, appellants filed post-judgment motions to recover
the full amount of the judgments from Dupree and his surety pursuant to former sections 34.064
and 34.065 of the Texas Civil Practice and Remedies Code, which were in effect at the time. 1 As
a result of those motions appellants obtained eight judgments against Dupree totaling over
$1 million. Appellants then petitioned the trial court in this case to issue a writ of mandamus
directing the County to pay the judgments obtained against Dupree, and to raise taxes if
necessary to satisfy the judgments. In response the County filed a plea to the jurisdiction and
motion to dismiss arguing that (1) the judgments at issue were against Dupree in his personal
capacity, (2) Dupree could petition the County Commissioners Court for indemnification, but
appellants lacked standing to enforce the judgments against the County, and (3) the judgments
did not waive the County’s sovereign immunity. Conversely, appellants moved for summary
judgment and argued that former sections 34.064 and 34.065 are a “legislative waiver of
immunity.” At the hearing on the County’s motion, appellants’ counsel also argued that the
County had waived its claim of immunity because in its motion it used the term “sovereign
immunity,” which applies to the state and its agencies, rather than the term “governmental
immunity,” which applies to counties and other political subdivisions. After the hearing the trial
court granted the County’s plea to the jurisdiction and dismissed appellants’ lawsuit.
ANALYSIS
In one issue on appeal appellants argue that the trial court erred when it granted the
County’s plea to the jurisdiction. In support, appellants raise two main arguments: (1) appellants
have standing to bring the suit, and (2) former civil practice and remedies code sections 34.064
and 34.065 waive the County’s governmental immunity. We need only address appellant’s
second argument because our conclusion regarding the County’s immunity is dispositive of this
appeal.
1
Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3274 (amended 2007) (current version at TEX. CIV. PRAC. &
REM. CODE ANN. §§ 34.064, 34.065 (West 2008)).
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Under the doctrine of governmental immunity counties and other political subdivisions of
the state cannot be sued without their consent. See City of Houston v. Williams, 353 S.W.3d 128,
134 (Tex. 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006)).
Governmental immunity has two components: immunity from liability, which bars enforcement
of a judgment against a governmental entity, and immunity from suit, which bars suit against the
entity altogether. See Tooke, 197 S.W.3d at 332.
“Waiver of a county’s immunity from suit requires a clear and unambiguous expression
of the Legislature, either by statute or resolution.” Webb Cnty. v. Khaledi Props., Ltd., No. 04-
12-00251-CV, 2013 WL 3871060, at *2 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem.
op.); see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 n.6 (Tex. 2003) (listing
statutes expressly waiving immunity from suit). The plaintiff bears the burden to allege a valid
waiver of immunity. Dallas Cnty. v. Logan, No. 05-11-00480-CV, 2014 WL 69038, at *6 (Tex.
App.—Dallas Jan. 9, 2014, no pet. h.).
Whether a statute waives governmental immunity is a question of law, which we review
de novo. See Harris Cnty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (statutory waiver of immunity is question of law); Tex. Mun. Power Agency v.
Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007) (“Statutory construction is a question of
law, which we review de novo.”). We construe statutes waiving sovereign and governmental
immunity strictly. See City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006).
With these standards in mind, we begin by examining the text of former civil practice and
remedies code sections 34.064 and 34.065 in effect at the time. Those sections stated as follows:
34.064 Improper Return of Writ
If an officer neglects or refuses to return a writ of execution as required by law or
makes a false return on a writ of execution, the officer and his sureties are liable
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to the person entitled to receive the money collected on the execution for the full
amount of the debt, plus interest and costs. The total amount is recoverable on
motion of the plaintiff filed with the court that issued the writ, following five
days’ notice.
34.065 Failure to Levy or Sell
If an officer fails or refuses to levy on or sell property subject to execution and the
levy or sale could have taken place, the officer and his sureties are liable to the
party entitled to receive the money collected on execution for the full amount of
the debt, plus interest and costs. The total amount is recoverable on motion of the
party filed with the court that issued the writ, following five days’ notice to the
officer and his sureties. 2
To support their argument that former sections 34.064 and 34.065 waived the County’s
immunity from suit, appellants rely on Johnson Roofing, Inc. v. Discount Rental, Inc., No. 10-10-
00239-CV, 2010 WL 3943780 (Tex. App.—Waco Oct. 6, 2010, pet. denied) (mem. op.). That
case, however, was not a suit against a county and did not address a county’s immunity from
suit. As a result, it does not support appellant’s argument. Appellants also cite generally to our
decision in Freeman v. Wirecut E.D.M., 159 S.W.3d 721 (Tex. App.—Dallas 2005). Like
Johnson Roofing, however, Freeman was not a suit against a county and does not stand for the
proposition that a county is amenable to suit under former sections 34.064 and 34.065.
Appellants also argue that governmental immunity does not bar petitions for writs of
mandamus against a political subdivision to enforce judgments obtained against its officers. To
support this argument, appellants rely on Delta County Levee Improvement District v. Leonard,
516 S.W.2d 911 (Tex. 1975), which arose from a levee improvement district’s failure to pay
principal and interest on bonds issued for the construction and maintenance of levees and other
improvements. The underlying judgments in that case, however, were against the district itself,
2
Under the current version of section 34.064, an officer who refuses to file or amend a return of writ after receiving notice is subject to
sanctions for contempt. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.064 (West 2008). And under the current version of section 34.065, if an
officer fails or refuses to levy on or sell property subject to execution, and other enumerated conditions are met, the officer and his sureties are
liable to the judgment creditor only for actual damages suffered. See id. § 34.065.
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not against an officer. As a result, Leonard does not support appellants’ argument that the
judgments against Dupree waived the County’s governmental immunity in this case.
Relying on City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), appellants also
argue for the first time in their reply brief that the judgments against Dupree fall within the ultra
vires exception to governmental immunity. As a general rule we do not consider arguments
raised for the first time in a reply brief. See Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795,
803 n.5 (Tex. App.—Dallas 2011, no pet.). But even if it had been timely raised, appellants’
ultra vires argument does not support their claim that the County’s immunity was waived in this
case. The ultra vires exception to immunity applies when a plaintiff seeks declaratory relief
against a government official who allegedly acts without legal or statutory authority. See Bd. of
Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228, 234 (Tex. App.—Houston [1st
Dist.] 2013, no pet.). In those cases, however, the government entity maintains immunity from
suit and is not a proper defendant. Id.
In short, former sections 34.064 and 34.065 do not clearly and unambiguously waive the
County’s immunity from suit and the authorities appellants rely upon do not apply to the facts of
this case. As a result, we conclude that appellants did not meet their burden to allege a valid
waiver of the County’s governmental immunity from suit.
CONCLUSION
We resolve appellants’ issue against them and affirm the trial court’s order granting the
County’s amended plea to the jurisdiction and dismissing appellants’ lawsuit.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
120765F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KINGVISION PAY-PER-VIEW, LTD., On Appeal from the 116th Judicial District
GARDEN CITY BOXING CLUB, INC., Court, Dallas County, Texas
AND ENTERTAINMENT BY J&J, INC., Trial Court Cause No. 07-11471-F.
Appellant Opinion delivered by Justice Lang-Miers.
Justices Francis and Lewis participating.
No. 05-12-00765-CV V.
DALLAS COUNTY, TEXAS, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order granting
appellee Dallas County, Texas’s pleas to the jurisdiction is AFFIRMED.
It is ORDERED that appellee Dallas County, Texas recover its costs of this appeal from
appellants Kingvision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and Entertainment by
J&J, Inc.
Judgment entered this 20th day of February, 2014.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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