Texas Alcoholic Beverage Commission v. American Legion Knebel Post 82

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00703-CV
Texas Alcoholic Beverage Commission, Appellant
v.
American Legion Knebel Post 82, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-10-003084, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
The Texas Alcoholic Beverage Commission (TABC) appeals from a summary
judgment in favor of American Legion Knebel Post 82 in a declaratory-judgment action
brought under section 2001.038 of the Administrative Procedure Act (APA). See Tex. Gov’t Code
§ 2001.038 (waiving sovereign immunity for suits seeking declaration regarding “validity or
applicability” of administrative rule). The Post brought the underlying action in response to a
TABC raid and administrative charges made in connection with a fund-raising activity at the Post
that the TABC contends violated a regulatory prohibition against gambling in a TABC-licensed
facility. See 16 Tex. Admin. Code § 35.31. The district court, after partially denying TABC’s plea
to the jurisdiction, granted summary judgment declaring that the Post’s fund-raising event is not
illegal gambling and is not subject to TABC rule 35.31. For the reasons set forth below, we will
affirm the district court’s partial denial of TABC’s plea to the jurisdiction, but reverse the
district court’s summary judgment.
Background
The Post is one of approximately 15,000 worldwide posts of the American Legion—a
“patriotic veterans organization” created by Congress in 1919 that is composed of former members
of the military. See Law of Sept. 16, 1919, ch. 59, § 1, 41 Stat. 284 (now codified at 36 U.S.C.
§ 21702). The Post, which is located in south Austin, holds meetings, hosts community-service
projects, and offers numerous benefits to its members, including access to a bar at its premises for
which it holds two TABC licenses.
Sometime around 2009, the Post decided to host a fund-raising event at its location
called the “Support a Veteran Sweepstakes.” As described by the Post, its Sweepstakes is similar
to more well-known sweepstakes run by large companies—e.g., McDonald’s, Subway, Budweiser,
Coors, and Miller—where winners are revealed by manual drawing from entries such as a pull tab,
a scratch-off tab, or information contained on the inside of a bottle cap. And like these well-known
sweepstakes, the Post asserts, no purchase is necessary to play its Sweepstakes—anyone seeking to
participate can simply ask for a free entry in person or by mail—although people may also obtain
entries by making a donation or a purchase. But unlike the more well-known sweepstakes, the Post
explains, its Sweepstakes uses an electronic gaming device, equipped with a video display, that is
programmed to draw entries from a predetermined pool and then “open” those entries on the video
screen to reveal—in the form of a video game—whether the entrant is a winner.
Having decided to hold the Sweepstakes at its place of business, but wanting to avoid
any potential legal problems regarding its TABC licenses, the Post asked TABC for “premarket
approval” of the Sweepstakes—i.e., a declaration that the Sweepstakes, as presented to TABC before
its implementation, would not violate any TABC regulations. In response to this request, TABC’s
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Supervisor of Marketing Practices sent a letter expressing his view that the Sweepstakes, if operated
in the manner described, “is permissible for Texas.” Relying on this opinion, the Post implemented
the Sweepstakes at its post location.
During early 2010, while the Post was operating the Sweepstakes, TABC began an
investigation into the Post’s Sweepstakes after TABC received complaints, including those from a
former Post bartender, that the Post was conducting illegal gambling operations on its premises.
Ultimately, TABC obtained a search warrant, conducted a raid on the Post’s premises, seized
the video Sweepstakes gaming devices, and asserted administrative charges against the Post. The
Travis County Attorney filed criminal charges against the Post’s officers in connection with the
same raid. TABC eventually dropped the administrative charges against the Post in exchange
for payment of $1,500 from the Post as a fine for failure to adequately supervise its employees. The
Travis County Attorney’s office likewise later dismissed the criminal charges related to the
Sweepstakes.
In response to the raid and imposition of administrative charges, but before TABC
and the county attorney had dismissed their respective charges, the Post brought this declaratory-
judgment action against the TABC in Travis County District Court seeking multiple declarations,
including that its Sweepstakes is not illegal gambling and that TABC rule 35.31(c)(14), which
generally prohibits illegal gambling in a TABC-licensed facility, does not apply to the
Post’s Sweepstakes. See Tex. Gov’t Code § 2001.038(a)–(b) (giving Travis County district courts
jurisdiction to determine “the validity or applicability” of an agency rule). TABC, in turn, filed a
plea to the jurisdiction contesting the district court’s subject-matter jurisdiction over the Post’s
claims, and the Post later filed a motion for summary judgment.
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After a hearing, the district court granted in part and denied in part TABC’s
plea to the jurisdiction, leaving in place the request for declarations that the Sweepstakes is
not illegal gambling and rule 35.31 does not apply to the Sweepstakes. At that same hearing, the
district court also considered and granted the Post’s motion for summary judgment, declaring that
the Sweepstakes, “as presented in the summary judgment evidence in the record in this case, is not
gambling, provided that it is conducted in accordance with that evidence.” It is from this judgment
that TABC appeals.
Discussion
TABC raises two issues on appeal. The first questions whether the district court had
jurisdiction over the Post’s claims and, thus, erred in denying TABC’s plea to the jurisdiction in part.
The second challenges the district court’s decision to grant the Post’s motion for summary judgment.
Jurisdiction
We begin, as we must, with TABC’s challenge to the district court’s decision to deny
its plea to the jurisdiction. A plea to the jurisdiction is among the procedural mechanisms through
which a party may challenge a trial court’s authority to decide the subject matter of a specific cause
of action. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
To determine whether this authority exists, we begin with the contents of the plaintiff’s live
pleadings. Id. at 226. The plaintiff has the initial burden of alleging facts that would affirmatively
demonstrate the trial court’s jurisdiction to hear the cause. Id. (citing Texas Ass’n of Bus. v. Texas
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We construe pleadings liberally in favor of
jurisdiction, taking them as true in the first instance, and look to the pleader’s intent. Miranda,
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133 S.W.3d at 226. Our ultimate inquiry is whether the particular facts presented, as determined by
the foregoing review of the pleadings and any evidence, affirmatively demonstrate a claim within
the trial court’s subject-matter jurisdiction. See Miranda, 133 S.W.3d at 226. That is a question of
law that we review de novo. See id.
We agree with the Post that the district court has jurisdiction over the Post’s
request for declaratory relief under APA section 2001.038. Section 2001.038 is an original grant of
jurisdiction that waives sovereign immunity to the extent of creating a cause of action for declaratory
relief regarding the “validity” or “applicability” of a “rule” if “it is alleged that the rule or its
threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right
or privilege of the plaintiff.” Tex. Gov’t Code § 2001.038(a); see Texas Logos, L.P. v. Texas Dep’t
of Transp., 241 S.W.3d 105, 123 (Tex. App.—Austin 2007, no pet.) (holding that “section 2001.038
is a grant of original jurisdiction and, moreover, waives sovereign immunity”). The Post’s petition
to the district court requested relief under this APA provision, specifically asking the district court
to declare that TABC rule 35.31 does not apply to the Post’s Sweepstakes program.
TABC rule 35.31 prohibits TABC licensees, like the Post, from conducting or
allowing illegal gambling at licensed premises:
(b) A licensee or permittee violates the provisions of the Alcoholic Beverage
Code . . . if any of the offenses listed in paragraph (c) of this rule are
committed:
(1) by the licensee or permittee in the course of conducting his/her
alcoholic beverage business; or
(2) by any person on the licensee or permittee’s licensed premises, and
(3) the licensee or permittee knew or, in the exercise of reasonable care,
should have known of the offense or the likelihood of its occurrence
and failed to take reasonable steps to prevent the offense.
(c) The offenses that are the subject of this rule are as follows:
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....
(14) any gambling offenses described in Chapter 47 of the Texas Penal
Code.
16 Tex. Admin. Code § 35.31(b)–(c). Chapter 47 of the Texas Penal Code, in turn, makes it a
criminal offense to “play[] and bet[] for money or other thing of value at any game played with . . .
[a] gambling device.” Tex. Penal Code § 47.02(a)(3). A “gambling device” under the Penal Code
is—
any electronic, electromechanical, or mechanical contrivance . . . that for a
consideration affords the player an opportunity to obtain anything of value, the award
of which is determined solely or partially by chance, even though accompanied by
some skill, whether or not the price is automatically paid by the contrivance.
Id. § 47.01(4) (chapter 41 definitions). Thus, the three elements of the offense of illegal gambling
under Penal Code section 47.02(a)(3) are (1) paying consideration for (2) the chance to win (3) a
prize or prizes, including money. See id. §§ 47.01(4), .02(a)(3); see also Brice v. State, 242 S.W.2d
433, 434 (Tex. Crim. App. 1951) (listing elements for offense of gambling).
The Post’s petition asserted that its Sweepstakes is not illegal gambling under the
Penal Code, and thus not subject to rule 35.31’s prohibition, because it lacks the element of
consideration. In support of that contention, the Post’s petition alleged that the Sweepstakes does
not require participants to pay consideration in order to play. Specifically, the Post asserted facts
showing that participants may obtain Sweepstakes entries by (1) making a donation, (2) purchasing
an item, or (3) asking for an entry in person or by mail. If participants are not required to pay to
play, the Post’s petition urges, the Sweepstakes lacks consideration as a matter of law and, therefore,
is not illegal gambling under the Penal Code and, by extension, not a violation of TABC rule 35.31.
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Finally, the Post’s petition alleged facts regarding TABC’s threatened application of this rule, see
Tex. Gov’t Code § 2001.038: TABC had applied rule 35.31 to the Post’s Sweepstakes in the past;
TABC’s position is that the Sweepstakes is gambling; TABC regards the “premarket approval” as
having no precedential value; and TABC intended to invoke that rule again against the Post in the
future. In sum, and construing its petition liberally as we must, see Miranda, 133 S.W.3d at 226,
the Post has asked the district court to determine the applicability of a TABC rule that it
contends TABC threatened to use against the Post’s Sweepstakes. This is the exact situation for
which APA section 2001.038 grants jurisdiction. See Tex. Gov’t Code § 2001.038.
TABC argues that any real controversy that existed when the Post filed its petition
with the district court was subsequently mooted when TABC dropped its administrative charges
against the Post. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005) (“A case
becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the
outcome.”); see also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010) (subject-matter
jurisdiction requires that the party bringing the suit have standing, that there be a live controversy
between the parties, and that the case be justiciable). “Mootness” is, as TABC suggests, an aspect of
justiciability, which requires a real controversy between the parties that will actually be resolved
by the judicial relief sought. See Hallman, 159 S.W.3d at 642 (citing The State Bar of Texas
v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)). TABC challenges whether the Post could present a
live controversy for the district court to resolve once the TABC dismissed the administrative
charges against the Post. But TABC’s argument here incorrectly assumes that TABC’s imposition
of administrative charges was the only issue raised by the Post’s suit when, in fact, the real
controversy was whether TABC rule 35.31 applied to the Post’s Sweepstakes. That controversy was
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not resolved when TABC withdrew its claims without any prejudice to reasserting them in the future.
Further, the fact that TABC is free to reassert the illegal-gambling charges against the Post’s
Sweepstakes absent the declaration that the Post sought below highlights that a controversy regarding
Rule 35.31’s applicability still exists. See Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d
126, 131 (Tex. App.—Austin 2007, no pet.) (noting that declaratory judgment action is not moot
when party voluntarily abandons conduct at issue without binding admission or extrajudicial action
that would prevent recurrence of challenged action).
Relatedly, TABC argues that the Post’s suit is not ripe for adjudication because
the Post has failed to present evidence showing that “it suffers an imminent threat” from
TABC enforcement of Rule 35.31. See City of Waco v. Texas Natural Res. Conservation Comm’n,
83 S.W.3d 169, 175 (Tex. App.—Austin 2002, pet. denied) (ripeness implicates subject-matter
jurisdiction and requires concrete injury to present justiciable claim) (citing Waco Indep. Sch. Dist.
v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000)); see also Travelers, 315 S.W.3d at 865 (noting that
ripeness is, like mootness, an aspect of justiciability). “Ripeness,” of course, addresses whether
the facts have sufficiently developed to show that an injury has occurred, or is likely to occur. City
of Waco, 83 S.W.3d at 175 (citing Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
971 S.W.2d 439, 442 (Tex.1998)).
Here, it is undisputed that TABC has already taken a stance adverse to that of
the Post’s by instituting an enforcement action based on its contention that the Sweepstakes program
is illegal gambling that violates TABC rule 35.31. And even though it has since withdrawn its
enforcement action, it did so without any prejudice to reasserting it. Given that the Sweepstakes is
ongoing, the Post still faces the likely possibility of future enforcement actions by TABC. Further,
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the Post has alleged various facts in its petition that, if construed liberally, suggest that TABC
considers the Post’s Sweepstakes, and other similar programs, to be illegal gambling, and that it also
gives no value to the “premarket approval” letter. Accordingly, the Post’s cause here is sufficiently
ripe for a declaration under section 2001.038 regarding whether the Sweepstakes is illegal gambling.
In a third justiciability-related argument, TABC contends that the district court’s
judgment was an improper advisory opinion because it contained “conditions” and “caveats.”
Specifically, TABC insists that the district court’s declaration that the Sweepstakes program is
not gambling is merely a “conditional presumption of legitimacy” given certain language in its
summary judgment:
2. The Court finds that the Post 8[2] game . . . using the WTGI software program as
presented in the summary judgment evidence in the record in this case, is
not gambling, provided that it is conducted in accordance with that evidence.” In
specific, the Court finds that the Post 8[2] game has and must maintain the
following characteristics in order to avoid running afoul of Rule 35.31(b): . . . .
3. The Court further finds, however, that the fact that the [Sweepstakes] is not per se
gambling does not mean that it could not be implemented in a manner that might
render it gambling.
(Bold emphases added.) We disagree that this language makes the judgment advisory.
An advisory opinion decides an abstract question of law without binding the parties.
See Texas Ass’n of Bus., 852 S.W.2d at 444. The question before the district court here—i.e.,
whether rule 35.31 applies to the Post’s Sweepstakes—presented a specific and concrete question
of law. Further, the district court’s determination that the Post’s Sweepstakes, as described in the
Post’s summary-judgment evidence, is not illegal gambling is binding on both parties. For example,
the declaration requires the Post to operate the Sweepstakes as established by the summary-judgment
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evidence or risk the imposition of future rule 35.31 administrative charges. Likewise, the judgment
prevents the TABC from successfully imposing administrative charges on the Post for illegal
gambling related to the Sweepstakes, but only to the extent that the Post operates the Sweepstakes
in the manner established by the summary-judgment evidence. As a result, the district court’s
determination resolves an ongoing controversy between the Post and TABC.
We also note our disagreement with TABC’s characterization of the district court’s
judgment as being conditional. The court’s use of the phrases highlighted above—i.e., “provided
that,” “and must maintain,” and “not per se1 gambling”—is simply meant to clarify the fact that the
court’s declaration is limited to a Sweepstakes operated in the manner established by the summary-
judgment evidence and to acknowledge that, should the Post operate the Sweepstakes in a different
manner, the regulation may apply—i.e., the district court’s summary judgment applies only to the
Sweepstakes run in the manner described by the summary-judgment evidence. And, in fact, this is
precisely what TRCP rule 166a requires a trial court to do when rendering summary judgment. See
Tex. R. Civ. P. 166a(c) (requiring summary judgment be determined on issues expressly set out
in motion). But more important, the district court’s judgment here clearly declares that the Post’s
Sweepstakes, again as established by the summary-judgment evidence, is not illegal gambling under
TABC rule 35.31(b). The summary judgment is not conditioned on some future event.
In a final jurisdictional argument, TABC argues that the district court lacked
jurisdiction over the Post’s declaratory-judgment claim to the extent that claim required the
district court to interpret a criminal statute—i.e., Penal Code chapter 47. Only where a plaintiff can
1
“Per se” means “[o]f, in, or by itself; standing alone, without reference to additional facts.”
Black’s Law Dictionary 1257 (9th ed. 2009).
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show “irreparable injury to . . . vested property rights,” TABC argues, may a civil court, such as
the district court here, construe a criminal statute. TABC relies here on the Texas Supreme
Court’s pronouncement in State v. Morales that “[a] civil court simply has no jurisdiction to render
naked declarations of ‘rights, status, or other legal relationships arising under a penal statute.’”2
869 S.W.2d 941, 947 (Tex. 1994) (quoting Malone v. City of Houston, 278 S.W.2d 204, 206
(Tex. Civ. App.—Galveston 1955, writ ref’d n.r.e.)). But TABC’s reliance on Morales is misplaced.
Initially, we note that the Post is not seeking a declaration of “rights, status, or other
legal relationship” arising under a criminal statute; rather, it seeks a declaration regarding the
applicability of an administrative regulation that incorporates provisions of the Penal Code. So to
that extent, Morales is not implicated here. But the differences go deeper. Morales involved a
civil suit seeking to declare Texas’s sodomy law unconstitutional and to enjoin criminal prosecution
under that statute. See Morales, 869 S.W.2d at 943. Its entire analysis, and in fact its ultimate
holding, was thus carefully limited to whether a court exercising civil jurisdiction could declare
a criminal statute unconstitutional or enjoin its prosecution. Id. Here, the Post does not seek to
declare Penal Code chapter 47, or any of its provisions, unconstitutional or, strictly speaking, to
2
The district courts of Travis County—including those that give preference to criminal
matters and those that, like the district court in this case, focus on civil matters—are courts of general
jurisdiction under the Texas Constitution. See Tex. Const. art. V, § 8. As such, all Travis County
district courts may hear and determine both civil and criminal matters and, thus, are both civil and
criminal courts. But this does not ultimately inform our decision because, despite Morales’s
reference to “civil courts,” a close reading of that decision and others addressing the same topic
shows that the principle addressed here refers to Texas courts exercising their civil jurisdiction. See,
e.g., Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex. 1994) (noting that, “as a rule, a party
cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding”); Passel
v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 64 (Tex. 1969) (“It has been said that the power and
authority to interpret criminal statutes rests solely with the courts of this state exercising criminal
jurisdiction.”). The district court here was unquestionably exercising its civil jurisdiction.
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enjoin its enforcement. Instead, the Post seeks a declaration regarding whether an administrative
regulation, which prohibits TABC licensees from engaging in conduct that is defined as being illegal
under the Penal Code, applies to its Sweepstakes program. As such, Morales does not and cannot
inform our decision here.
Importantly, as suggested above, the Morales decision carefully distinguishes
civil suits that “seek a naked declaration of the penal statute’s unconstitutionality” from those
cases where “relief was sought solely to ‘prevent administrative enforcement of an administrative
regulation adopted for the purpose of implementing the statute.’” See Morales, 869 S.W.2d
at 945–46 (distinguishing facts of and quoting Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d
61, 62 (Tex. 1967)). Under the circumstances presented in Passel, the Morales decision noted,
injunctive relief might be granted because a complaint about an administrative rule is “a matter
within the court’s equity jurisdiction.” Id. at 946 (citing Passel, 440 S.W.2d at 64). In Passel, the
supreme court ultimately held that a district court exercising its civil jurisdiction in an administrative
appeal could determine the meaning and validity of a Penal Code provision where no prosecution
had been instituted and where no injunction against the provision’s enforcement was sought. See
Passel, 440 S.W.2d at 64. This is similar, although not identical, to the Post’s case, which seeks a
declaration under APA section 2001.038 regarding the applicability—not enforcement—of a TABC
regulation that incorporates—but does not implement—a Penal Code provision. Regardless, the
bottom line here is that despite TABC’s jurisdictional argument to the contrary, Morales does
not create an absolute bar to the construction of a criminal statute by a court exercising its civil
jurisdiction. This is perhaps best illustrated by the fact that the Texas Supreme Court has interpreted
and construed Penal Code provisions, including the very provision at issue here, when those
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provisions are incorporated into or implicated by civil statutes or regulations. See, e.g., State
v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013) (in civil forfeiture case, interpreting
Penal Code definitions and holding that particular gaming device did not fall under Penal Code
exclusion); In re B.W., 313 S.W.3d 818, 826 (Tex. 2010) (determining that child under fourteen may
not be prosecuted for prostitution under Penal Code section 43.02). Accordingly, the district court
has jurisdiction over the Post’s claims regarding TABC rule 35.31.
We overrule TABC’s first issue.
Summary judgment
Having determined that the district court had jurisdiction over the Post’s declaratory-
judgment action, we turn to TABC’s multiple challenges to the district court’s decision to grant
the Post’s motion for summary judgment. Our de novo standard for reviewing summary judgments
is well-known. See, e.g., Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 214
(Tex. 2003); Nixon v. Mr. Property Mgmt. Co. Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). We
must determine whether there is more than a scintilla of probative evidence raising genuine issues
of material fact. See Tex. R. Civ. P. 166a(c), (i). We must review the record “in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against
the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
As discussed in more detail above, the applicable law in this case, TABC rule 35.31,
prohibits TABC licensees from conducting any of the gambling offenses found in chapter 47 of
the Penal Code. See 16 Tex. Admin. Code § 35.31(c)(14). The Post moved for summary judgment
based on its contention that the Sweepstakes is not illegal gambling as a matter of law because it
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lacks the element of consideration that is necessary to constitute the offense of illegal gambling
under chapter 47 and Texas case law. See Tex. Penal Code §§ 47.01(4) (defining gambling device
as requiring consideration), .02(a)(3) (making it an offense to “play[] and bet[] for money . . . any
game played with . . . a gambling device”); Brice, 242 S.W.2d at 434 (describing elements of offense
of illegal gambling, including element of consideration). Specifically, the Post argued that its
Sweepstakes lacks consideration because it provides a legitimate opportunity to obtain an entry to
play without requiring a donation or purchase. See Brice, 242 S.W.2d at 434 (holding that offense
of illegal gambling requires “the payment either directly or indirectly by the participants of a
consideration for the right or privilege of participating”). And to support this contention, the Post
presented summary-judgment evidence showing—conclusively the Post contends—that while some
people may choose to make a donation or purchase a drink special to obtain entries, free entries are
available to anyone who requests them in person or by mail—i.e., no purchase is necessary to
participate in the Post’s Sweepstakes.
Assuming without addressing or deciding whether the availability of free entries
eliminates the element of consideration, we agree with TABC that the Post’s summary-judgment
evidence raises a question of fact on this issue. The Post’s summary-judgment evidence includes
a document titled “Affidavit For Search and Seizure Warrant.” This warrant, which was created by
TABC in advance of its raid on the Post’s premises, contains the testimony of a TABC agent
regarding TABC’s probable cause to search the Post’s premises and seize the Sweepstakes machines.
Specifically, the agent testifies in the warrant that a former Post bartender stated that “to use the
[Sweepstakes] machines a card must be received from the bartender and that you must put money on
the card to play.” (Emphases added.) Taking this as true, indulging every reasonable inference, and
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resolving any doubts in favor of non-movant TABC, see City of Keller, 168 S.W.3d at 824, this
warrant creates a question of fact regarding whether someone can play the Sweepstakes for free
or whether payment is required. The existence of a fact issue precludes summary judgment. See
Tex. R. Civ. P. 166a(c). Accordingly, we sustain TABC’s second issue.
Conclusion
We affirm the district court’s partial denial of TABC’s plea to the jurisdiction, but
having determined that the summary-judgment evidence raises a fact question that precludes
summary judgment, we reverse the district court’s summary judgment and remand the case for
further proceedings.
__________________________________________
Jeff Rose, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed in part; Reversed and Remanded in part
Filed: May 16, 2014
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