Fort Bend Central Appraisal District v. McGee Chapel Baptist Church

Affirmed in Part, Reversed in Part, Remanded, and Majority and Concurring
Opinions filed October 15, 2020.
In the
Fourteenth Court of Appeals
NO. 14-19-00334-CV
FORT BEND CENTRAL APPRAISAL DISTRICT, Appellant
v.
MCGEE CHAPEL BAPTIST CHURCH, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCV-241463
CONCURRING OPINION
“Subject matter jurisdiction is never presumed and cannot be waived.” Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). Even
when not raised by the parties, defects in subject-matter jurisdiction “may—
indeed, must—be raised by an appellate court on its own.” Am. K-9 Detection
Servs., LLC v. Freeman, 556 S.W.3d 246, 260 (Tex. 2018) (citing Tex. Ass’n of
Bus., 852 S.W.2d at 445–46). While I agree with the bulk of the court’s analysis of
this case, I part ways with its treatment of McGee Chapel’s argument that the trial
court has jurisdiction over McGee Chapel’s request for judicial review of the 2019
Protest.
I respectfully concur.
The court writes:
On appeal, the District assigns error only as to the trial court’s denial
of its jurisdictional plea. The District does not assert that the trial
court lacks jurisdiction over the part of the amended petition that
challenges the ARB’s ruling on the 2019 Protest. In this context, the
issue of whether the trial court has jurisdiction over this part of the
amended petition is not before this court, and we express no opinion
on the trial court’s jurisdiction over this part of the amended petition.
I take issue with the court’s characterization of an issue of subject-matter
jurisdiction as being “not before this court.” This language flies in the face of the
supreme court’s explicit guidance that an issue of subject-matter jurisdiction is
always before the court. See id.; see also Waco Indep. Sch. Dist. v. Gibson, 22
S.W.3d 849, 851 (Tex. 2000) (appellate court erred by failing to consider merits of
standing and ripeness challenges on interlocutory appeal even though issues had
not been raised in trial court). This is so because an appellate court’s jurisdiction
derives from the trial court’s jurisdiction, giving rise to a responsibility on the part
of the appellate court to analyze subject-matter jurisdiction even when the parties
have not raised it, and especially when they have, as the court concludes is the case
here. See Am. K-9 Detection Servs., 556 S.W.3d at 260 (appellate court “must”
examine subject-matter jurisdiction on its own); see also Good Shepherd Med.
Ctr., Inc. v. State, 306 S.W.3d 825, 837 (Tex. App.—Austin 2010, no pet.)
(appellate court has “a duty to consider a question of subject-matter jurisdiction
sua sponte because the district court’s power to decide the merits, as well as our
own, rests upon it”) (citing Texas Ass’n of Bus., 852 S.W.2d at 443–46).
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I ultimately conclude the record reveals no jurisdictional deficiencies barring
disposition of this appeal or further proceedings on remand, and otherwise agree
with the court’s judgment. However, I disagree with the suggestion that we may
ignore a potential defect in subject-matter jurisdiction because it is “not before this
court.”
It is elementary that when an intermediate appellate court affirms the trial
court in a civil case, the appellate-court judgment, either explicitly or implicitly, is
that the trial-court judgment contains (1) no fundamental error and (2) no
reversible error as to issues (a) preserved in the trial court, if necessary, and
(b) presented on appeal. Issues of fundamental error are always before the court,
regardless of what the parties do. See In re A.J.A.R., No. 14-20-00084-CV, 2020
WL 4275803, at *1 (Tex. App.—Houston [14th Dist.] July 24, 2020, no pet. h.)
(Spain, J., dissenting and concurring) (discussing Robert W. Calvert, Appellate
Court Judgments or Strange Things Happen on the Way to Judgment, 6 TEX. TECH
L. REV. 915 (1975)); see also Polaris Guidance Sys., LLC v. EOG Res., Inc., 575
S.W.3d 85, 92 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (Spain, J.,
concurring).
Accordingly, I concur in the court’s judgment only.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Spain (Jewell, J.,
majority).
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