Destructors, Inc. v. City of Forest Hill

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-440-CV
DESTRUCTORS, INC. APPELLANT
V.
CITY OF FOREST HILL APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In three issues, Appellant Destructors, Inc. appeals the trial court’s order
granting Appellee City of Forest Hill’s plea to the jurisdiction. We must
determine whether the trial court had subject-matter jurisdiction to enjoin the
enforcement of the municipal ordinance at issue. Because we hold that it does
not, we affirm.
1
… See Tex. R. App. P. 47.4.
II. BACKGROUND
Destructors operates concrete and asphalt recycling plants. Destructors
accepts the materials for free from independent contractor hauling companies
hired by governmental entities. Destructors then crushes and sells the concrete
and asphalt to cities, counties, the Texas Department of Transportation, and oil
and gas companies for use in new road and drilling pad site foundations.
A. The City’s Truck Route Ordinances
In 1976, the City adopted an ordinance designating three truck routes
within the city limits. Forest Hill, Tex., Code § 126-212(b) (November 6,
2007). Aside from these designated truck routes, the City prohibits commercial
motor vehicles 2 from using a residential street without either (1) a point of
origin or destination within the City; or (2) a City-issued permit. Id. §§ 126-
212(a), 126-216–218. The City’s municipal code prohibits a “commercial
motor vehicle, truck tractor, trailer, or semitrailer” weighing more than 72,000
pounds from receiving a permit. Id. § 126-278.
B. Destructors’ Recycling Plant
On October 27, 2008, Destructors leased approximately 15.5 acres just
outside the City’s eastern boundary, entirely within the City of Fort Worth, and
2
… The ordinance defines a commercial motor vehicle as “any motor
vehicle designed or used for the transportation of property, not including a
passenger bus, passenger automobile, motorcycle, panel delivery truck, or
pickup truck.” Forest Hill, Tex., Code § 126-211.
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began operating a concrete and asphalt recycling facility. The plant is accessed
by Esco Drive or Freeman Drive—the two roads form the “Freeman-Esco Loop”
within the Fort Worth city limits. Access to the Freeman-Esco Loop is available
only via Anglin Drive, a residential street entirely located in the City, 3 south of
the City’s designated truck routes. The trucks using Anglin Drive to deliver the
used concrete and asphalt to Destructors’ facility weigh approximately fifteen
tons and typically haul a minimum of twenty-five tons per load—for a total
approximate weight of 80,000 pounds.4
C. The City Enforces Ordinance
Within four days of opening its facility, at least twelve truck drivers
delivering used concrete and asphalt to Destructors’ plant received citations
from the City’s police officers for violating the ordinances. Destructors
contends the ordinance will put its plant out of business because the
independent contractor truck drivers will avoid being ticketed by delivering
materials to competing concrete recycling facilities instead of meeting the
ordinance’s weight limit requirements and applying and paying for a permit from
the City.
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… The City’s eastern boundary is the eastern edge of the right-of-way
of Anglin Drive.
4
… In its second amended pleading, Destructors does not indicate the
approximate weight of vehicles using Anglin Drive to pick up crushed asphalt
and concrete from the facility.
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D. Procedural Background
Destructors filed suit against the City on October 14, 2008. The City
answered on October 30, 2008. The next day, Destructors filed its second
amended petition and application for a temporary restraining order, alleging (1)
the City illegally took Destructors’ property without compensation, violating the
Texas Private Real Property Rights Preservation Act; (2) inverse condemnation;
(3) nuisance; and (4) equal protection.
The City filed a plea to the jurisdiction asserting three grounds: (1)
Destructors failed to exhaust all administrative remedies before seeking
injunctive relief; (2) a civil court has no jurisdiction to render naked declarations
of “rights, status or other legal relationships arising under a penal statute;” and
(3) Destructors failed to affirmatively allege facts showing an irreparable harm
to a vested property right. After a hearing, the trial court granted the City’s
plea by written order without specifying the ground on which the plea was
granted.
III. DISCUSSION
On appeal, Destructors contends by its first and fourth issues that the
trial court erred by granting the City’s plea to the jurisdiction because it has a
vested property interest that is threatened by irreparable harm. By its second
issue, Destructors contends there was no administrative procedure for it to
follow before filing suit against the City. By its third issue, Destructors
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contends the trial court erred by granting the plea because the City’s ordinance
is preempted by Texas law, void, and unconstitutional under the Texas
Constitution and United States Constitution. Because they are dispositive, we
address Destructors’ first and fourth issues, contending that the trial court erred
by granting the plea to the jurisdiction on the ground that Destructors failed to
assert irreparable harm to a vested property interest.
A. Standard of Review
Whether the trial court has subject-matter jurisdiction is a question of law
we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea that
challenges the trial court’s subject-matter jurisdiction. Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of
action without regard to whether the claims asserted have merit. Id.
Analysis of whether a trial court has authority to decide a case begins
with the plaintiff’s live pleadings. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff has the burden of
alleging facts that affirmatively establish the trial court’s subject-matter
jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993). We construe the pleadings liberally in favor of the plaintiff, look
to the pleader’s intent, and accept the pleadings’ factual allegations as true.
Miranda, 133 S.W.3d at 226. When the trial court does not specify the basis
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for its ruling, we must affirm the trial court’s judgment if any one of the
theories advanced is meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005). To prevail on appeal, then, Destructors must show the
trial court could not properly grant the plea to the jurisdiction on any of the
grounds asserted by the City. See Star Telegram, Inc. v. Doe, 915 S.W.2d
471, 473 (Tex. 1995).
B. Analysis
Destructors contends that the trial court has subject-matter jurisdiction
to determine whether the City’s penal ordinance is unconstitutional because the
ordinance threatens irreparable injury to Destructors’ vested property rights.
1. Civil Trial Court Has Narrow Jurisdiction Over Criminal Statutes
Because Texas has a bifurcated system of criminal and civil jurisdiction,
the meaning and validity of a penal statute or ordinance should ordinarily be
determined by courts exercising criminal jurisdiction. State v. Morales, 869
S.W.2d 941, 945 (Tex. 1994). However, an equity court possesses a narrow
jurisdictional power to decide a matter regarding a criminal statute:
A civil court has jurisdiction to declare constitutionally invalid and
enjoin the enforcement of a criminal statute only when (1) there is
evidence that the statute at issue is unconstitutionally applied by
a rule, policy, or other noncriminal means subject to a civil court’s
equity powers and irreparable injury to property or personal rights
is threatened, or (2) the enforcement of an unconstitutional statute
threatens irreparable injury to property rights.
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Id. at 942; City of Argyle v. Pierce, 258 S.W.3d 674, 681 (Tex. App.—Fort
Worth 2008, no pet.).
Here, the City’s ordinances make it unlawful to operate any truck or
commercial motor vehicle “on a public street in [Forest Hill] without a business
destination or point of business origin within the corporate limits of the city
except upon streets designated as truck routes or commercial delivery routes
. . . . without first obtaining a [City] permit to do so.” Forest Hill, Tex., Code
§§ 126-212, 126-216—217, 126-271, 126-273. Because of the term
“unlawful,” and the authority granted to the City’s police department to enforce
the ordinance, this is a penal ordinance. Id. § 126-246; see Morrow v.
Truckload Fireworks, Inc., 230 S.W.3d 232, 237 (Tex. App.—Eastland 2006,
no pet.) (finding a penal ordinance exists when no ancillary administrative
actions, such as modifying an individual’s salary, can be taken or threatened by
violating the ordinance).
2. Jurisdiction Over Criminal Statutes Requires Harm to Property Rights
Civil equity courts have no jurisdiction to enjoin the enforcement of
criminal statutes in the absence of irreparable harm to vested property rights.
See Morales, 869 S.W.2d at 943. Property rights are created and defined by
state law. Reese v. City of Hunter’s Creek Vill., 95 S.W.3d 389, 391 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (citing Stratton v. Austin Indep. Sch.
Dist., 8 S.W.3d 26, 29 (Tex. App.—Austin 1999, no pet.)). A person’s
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property interests include actual ownership of real estate, chattels, and money.
Id. Property owners do not have a constitutionally protected vested right to use
real property in any certain way, without restriction. City of La Marque v.
Braskey, 216 S.W.3d 861, 862 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(citing City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972)); Hang
On III, Inc. v. Gregg County, 893 S.W.2d 724, 726 (Tex. App.—Texarkana
1995, writ dism’d by agr.) (holding that property owner did not have a vested
property right in operating a sexually-oriented business on that property).
In City of La Marque, Braskey operated a cat shelter on property she
owned within 100 feet of three residences. 216 S.W.3d at 862. The City of
La Marque passed an ordinance prohibiting the operation of a kennel within 500
feet of a dwelling. Id. Braskey sought an injunction from the trial court to
prevent the enforcement of the ordinance against her, which she claimed would
result in her facility being closed. Id. Because Braskey’s asserted harm
concerned a particular use of her property, which is not a constitutionally
protected vested right, the civil trial court did not have jurisdiction to hear
Braskey’s lawsuit. Id. at 864.
Destructors attempts to distinguish the present case from City of La
Marque by arguing its holding only applies to zoning ordinances, not traffic
ordinances. However, Destructors cites no authority for its argument and we
see no reason the two types of ordinances should be treated differently in this
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instance. Similar to Braskey’s claim in City of La Marque, Destructors’ pleaded
injury relates only to the particular use of the leased property, as a concrete
recycling plant, not the right to use the property. Such an allegation is not a
threat of an irreparable injury to a vested property right as is required to grant
the trial court subject-matter jurisdiction. See Morales, 869 S.W.2d at 945,
n.8; City of LaMarque, 216 S.W.3d at 864.
Citing Passel v. Fort Worth Indep. Sch. Dist., Destructors contends that
the trial court has jurisdiction to protect its personal rights 5 from the ordinance’s
unconstitutional application. 440 S.W.2d 61 (Tex. 1969). In Passel, injunctive
relief was sought solely to protect personal rights—the right of free and private
association—by preventing administrative enforcement of an administrative
regulation adopted for the purpose of implementing a statute. Id. at 64. In
Morales, the Texas Supreme Court clarified its holding in Passel, stating that a
trial court may have subject-matter jurisdiction and grant an injunction to
protect personal property rights when a plaintiff complains about a rule and
does not seek a naked declaration of a penal statute’s unconstitutionality. 869
S.W.2d at 946. Here, Destructors is not attempting to prevent enforcement of
an administrative regulation or rule; rather it is seeking a naked declaration of
a penal ordinance’s unconstitutionality. A personal right cannot uniformly be
5
… Destructors does not identify or explain the personal rights needing
protection.
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substituted for a property right and thereby expand a civil court’s equity
jurisdiction over criminal statutes or ordinances. See id.
3. Jurisdiction Requires the Ordinance to Operate Against Destructors
Destructors alternatively argues that the trial court has jurisdiction
because it will never be prosecuted under the City’s ordinance and has no
ability to challenge the ordinance in criminal court. Destructors cites City of
Austin v. Austin City Cemetery Ass’n for the proposition that there are cases
in which there is no pending or anticipated prosecution, but that a civil court
can grant an injured party an injunction to prevent the enforcement of a penal
ordinance. 28 S.W. 528 (Tex. 1894) However, in City of Austin, the
challenged ordinance operated against both a business and its customers. Id.
Here, the City’s ordinance does not ban the possession or transportation of
concrete or asphalt or make Destructors liable for any customer transporting
materials to or from Destructors’ plant without a city permit. Moreover, as
Destructors admits, the ordinance cannot be enforced against it because the
plant is not in the City’s limits and because Destructors neither owns nor hires
trucks to transport the materials. If a party faces no prosecution under a
challenged ordinance, the ordinance has no in terrorem effect. Morales, 869
S.W.2d at 944, n.7. Because the ordinance in this case cannot be enforced
against Destructors, City of Austin does not apply.
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4. Destructors Failed To Establish Jurisdiction
Construing the pleadings liberally in favor of Destructors, it failed to
establish the civil equity court’s subject-matter jurisdiction because it did not
identify an irreparable injury to vested property rights. Destructors’ first and
fourth issues are overruled.
Because we conclude that the trial court lacked jurisdiction absent
irreparable injury to vested property rights, we need not address Destructors’
second issue that no administrative procedures exist for Destructors to follow
before filing suit against the City. See Tex. R. App. P. 47.1. And, because civil
equity courts have no jurisdiction to enjoin the enforcement of criminal statutes
in the absence of irreparable harm to vested property rights, we do not reach
Destructors’ third issue that the City’s ordinance is preempted by Texas law
and unconstitutional under the state and federal constitutions. See id.;
Morales, 869 S.W.2d at 943; City of Houston v. Guthrie, No. 01-08-00712-
CV, 2009 WL 5174258, at *13–14 (Tex. App.—Houston [1st Dist.] 2009, no
pet.) (holding that because a lessee’s rights do not exceed those of the property
owners, lessees did not have a constitutionally protected right to use the
property in any certain way, without restriction, and could not establish the
threat of an irreparable harm to a vested property interest).
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IV. CONCLUSION
Accordingly, we affirm the trial court’s order granting the City’s plea to
the jurisdiction.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: May 13, 2010
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