Failure to timely pay fee in county court from appeal from JP court kills the appeal, as a jurisdictional matter under amended rule, Houston COA holds in further appeal from County Court

Pichini v. Federal National Mortgage Ass'n aka FANNIE MAE, NO. 01-17-00519-CV (Tex.App. - Houston [1st Dist.] May 17, 2018)(dismissal by county court of attempted appeal from justice court affirmed)

Comment: Another quirk in the Texas judicial system. Appeals from JP courts have different deadlines and different requirements from appeals from county courts and district courts to the courts of appeals,  and - as illustrated here -- some of the differences have very harsh consequences because they are characterized as jurisdictional, leaving no room for discretion or cure.   

Opinion issued May 17, 2018

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00519-CV

———————————

PETER Q. PICHINI, JR., Appellant

V.

FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE

MAE, Appellee

On Appeal from County Court at Law No. 2

Williamson County, Texas

Trial Court Case No. 17-0634-CC2

OPINION 

PETER Q. PICHINI, JR., Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee.

No. 01-17-00519-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 17, 2018.

Paul A. Hoefker, for Federal National Mortgage Association, a/k/a Fannie Mae, its Successors and/or Assigns, Appellee.

William B. Gammon, for Peter Q. Pichini, Junior, Appellant.

On Appeal from County Court at Law No. 2, Williamson County, Texas, Trial Court Case No. 17-0634-CC2.

Panel consists of Justices Keyes, Brown, and Lloyd.

OPINION

RUSSELL LLOYD, Justice.

Appellant Peter Q. Pichini, Jr. challenges the county court's order dismissing his appeal from the justice court's judgment entered in favor of appellee, Federal National Mortgage Association, in its forcible detainer action. 

In his sole issue, Pichini contends that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.^[1] 

We affirm.

Background

On April 6, 2017, Federal National Mortgage Association a/k/a Fannie Mae ("Fannie Mae") filed its original petition for forcible detainer in the Justice Court of Williamson County, Precinct Three, seeking to evict Pichini from the property located at 1725 Cactus Mound Drive, in Leander, Texas. On April 18, 2017, the justice court rendered judgment in favor of Fannie Mae.

On April 21, 2017, Pichini posted an appeal bond in the county court. On April 26, 2017, the county clerk sent notice to Pichini's attorney that it had received the transcript of the proceedings from the justice court and advised him that the filing fee "must be paid within 20 days upon receipt of this letter or the case will be returned to the JP Court No. 3." The record reflects that the letter was delivered on April 28, 2017. Thus, the filing fee was due no later than May 18, 2017.

After Pichini did not pay the fee as directed, the county court found that he had failed to perfect his appeal and dismissed the appeal on May 19, 2017. Pichini filed a motion to reinstate his appeal. The county court denied the motion on June 19, 2017.

Standard of Review

Subject matter jurisdiction is a legal question which we review de novo. See Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Accordingly, we review a county court's dismissal of an appeal from a justice court under a de novo standard. See Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

Discussion

In his sole issue, Pichini argues that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.

Texas Rule of Civil Procedure 506.1, which governs an appeal from a justice court to a county court, provides, in relevant part, as follows:

(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.

. . . .

(h) Appeal Perfected. An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.

(i) Costs. The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.

TEX. R. CIV. P. 506.1. Rule 143a, entitled "Costs on Appeal to County Court," provides:

If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.

TEX. R. CIV. P. 143a. Thus, to perfect an appeal to a county court from a justice court, an appellant must (1) file an appeal bond, cash deposit in lieu of a bond, or a sworn statement of inability to pay, and (2) pay to the county clerk, within twenty days after being notified to do so by the county clerk, the costs of appeal. TEX. R. CIV. P. 143a, 506.1; James v. Minter, No. 01-15-00876-CV, 2017 WL 631836, at *2 (Tex. App.-Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op.). Compliance with both requirements is jurisdictional. James, 2017 WL 631836, at *2; Watkins v. Debusk, 286 S.W.3d 58, 60 (Tex. App.-El Paso 2009, no pet.); see also Martin v. Fed. Nat'l Mortg. Ass'n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.-San Antonio Apr. 20, 2016, no pet.) (mem. op.) ("The payment of costs after receipt of the county clerk's notice is a jurisdictional requirement").

Here, Pichini does not dispute that he failed to timely pay the filing fee in the county court. Rather, he argues that he perfected his appeal when he filed an appeal bond with the justice court and deposited funds into the registry of the court, and that his failure to pay the filing fee before the expiration of twenty days did not affect the jurisdiction of the court. His argument is without merit. As previously noted, the plain language of rule 143a mandates that, upon the expiration of the twenty-day period, Pichini's appeal be "deemed not perfected." TEX. R. CIV. P. 143a ("If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to so by the county clerk, the appeal shall be deemed not perfected. . . ."); James, 2017 WL 631836 at *4; see also McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *2 (Tex. App.-Austin Feb. 10, 2000, no pet.) (not designated for publication) ("Rule 143a mandates that [the defendant's] appeal be `deemed not perfected'").^[2] Because Pichini did not pay the filing fee before expiration of the twenty-day period, the county court did not err in deeming Pichini's appeal not perfected and dismissing his appeal. Accordingly, we overrule his issue.

Conclusion

We affirm the county court's order dismissing Pichini's appeal.

[1] Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Third District of Texas to this Court. See Misc. Docket No. 17-9035, Transfer of Cases from Courts of Appeals (Tex. Mar. 28, 2017); see also TEX. GOV'T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).

[2] In support of his argument, Pichini relies on Advance Imports, Inc. v. Gibson Products Co., Inc., 533 S.W.2d 168, 170 (Tex. Civ. App.-Dallas 1976, no writ) ("[W]e hold that failure to pay the [filing] fee does not affect the jurisdiction of the county court."). However, as that court noted, "[t]he trial court's order of dismissal was entered before the effective date of Tex. R. Civ. P. 143a. . . ." Id. at 171 n.1.

10 Dogs 2 Cats Appeal Dismissed

Houston Court of Appeals sent parties in animal seizure case to mediation, but Harris County opposed it and instead asserted that court of appeal lacked jurisdiction. 

First Court agrees and dismisses attempted appeal. 

Link to docket: No. 01-17-00675-CV

BEWARE OF JURISDICTION ISSUES 

Partition suit exceeded jurisdictional dollar-limit ($200K) of Harris County Court at Law

Suit for partition of real property brought in CCCL#1 dismissed because amount in controversy was more than $200,000; - actually much more. The jurisdictional limit used to be $100,000, but was raised to $200,000 by the Texas Legislature. First Court of Appeals dismisses the case because the county court lacked jurisdiction. Court of Appeals also holds, in opinion by Justice HarveyBrown, that the Harris County Civil Court at Law (No. 1) would have had jurisdiction over partition action if it had been within the amount-in-controversy range over which Harris County courts at law have concurrent jurisdiction with district courts. The argument that district courts have exclusive jurisdiction over such types of suits is  rejected.

  

Eris v. Giannakopoulos, No. 01-11-00029-CV (Tex.App.- Houston [1^st Dist.] May 3, 2012, no pet. h.)

  

OPINION

Bill Eris appeals from the Harris County Civil Court at Law Number One’s judgment partitioning certain properties between Eris and Ilias Giannakopoulos. Because we hold that the amount in controversy in the partition action exceeded the civil court at law’s jurisdiction, we reverse and dismiss for lack of jurisdiction.

Background

Eris and Giannakopoulos purchased three separate but adjacent and contiguous properties, which they subsequently transferred to a corporation named H.G.B.E., Inc. Eris and Giannakopoulos each own 50% of H.G.B.E., and the properties are H.G.B.E.’s only assets. Eris and Giannakopoulos paid $275,000 to purchase the properties in 1997; over recent years, they have received purchase offers on the properties between $700,000 and $950,000.

After Eris allegedly failed to pay his share of the 2007 property taxes on the properties, Giannakopoulos brought this action for partition of the properties and to recover expenses he incurred in paying Eris’s share of property taxes and insurance costs. Giannakopoulos subsequently supplemented his pleadings to add a breach of fiduciary duty claim and to request dissolution of H.G.B.E.

The trial court granted a partition of the properties, dividing the properties into two equal-sized lots and awarding one lot to Eris and the other to Giannakopoulos. The trial court later severed the partition claim from Eris’s other claims, making its partition order a final judgment. Eris appeals from the partition judgment.

Issues Raised

On appeal, Eris asserts that the trial court erred in entering its judgment on four grounds: (1) the trial court lacked jurisdiction over the partition action because district courts have exclusive jurisdiction over partition actions and because the value of the property exceeded the maximum amount in controversy over which the trial court had jurisdiction; (2) the trial court failed to follow the rules governing the procedure for partition of real property; (3) the properties belonged to H.G.B.E., which was not a party to the lawsuit; and (4) partition is not practical under the circumstances of this case. We hold that the trial court lacked jurisdiction over the partition action and therefore do not reach Eris’s remaining contentions.

Jurisdiction

“Whether a court has subject matter jurisdiction is a question of law that we review de novo.” City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam). Harris County Civil Court at Law Number One is a statutory county court, and its jurisdiction over civil cases is concurrent with that of a constitutional county court. See Tex. Gov’t Code Ann. §§ 25.0003(a) (West 2012) (“A statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts.”), 25.1032(a) (West 2012) (granting Harris County statutory county courts jurisdiction over “all civil matters and causes, original and appellate, prescribed by law for county courts,” in addition to other specifically attributed jurisdiction). When, as here, a statutory county court has concurrent civil jurisdiction with a constitutional county court, it also has concurrent jurisdiction with the district court in civil cases in which the matter in controversy exceeds $500 but not $200,000.[1] Id. § 25.0003(c)(1). Thus, the Government Code “grant[s] Harris County civil courts at law concurrent jurisdiction with district courts in civil cases in which the amount in controversy falls within a certain jurisdictional dollar limit for statutory county courts.” Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 448 (Tex. 1996).

A.      The county court’s jurisdiction does not exclude partition actions

Chapter 23 of the Property Code governs suits to partition real property. Section 23.002, titled “Venue and Jurisdiction,” provides that a “joint owner or a claimant of real property or an interest in real property may bring an action to partition the property or interest in a district court of a county in which any part of the property is located.” Tex. Prop. Code Ann. § 23.002(a) (West 2000). Eris asserts that this statute gives district courts exclusive jurisdiction over partition actions. We disagree.

The language of section 23.002 does not indicate a legislative intent that district courts have exclusive jurisdiction over partition actions; rather, the use of the word “may” demonstrates a permissive, rather than mandatory, procedure.[2] See id.; see also Cazarez, 937 S.W.2d at 447–48 (holding that Harris County statutory county court had jurisdiction over certain Labor Code violations when statute provided that such suits “may” be brought in district court); Nueces Cnty. v. Thornton, No. 13-03-011-CV, 2004 WL 396608, at *2 (Tex. App.—Corpus Christi Mar. 4, 2004, no pet.) (mem. op.) (holding that Nueces county court had jurisdiction over certain civil service appeals under statute providing that employee “may” file appeal in district court but lacked jurisdiction over decisions beyond scope of jurisdictional grant to district courts). A statute merely providing that an action “may” be brought in district court “does not express an intention to grant exclusive jurisdiction to district courts,” but rather, “to the extent that statutory courts share concurrent jurisdiction with district courts, nothing in [such a] statute limits or excludes that concurrent jurisdiction.” Cazarez, 937 S.W.2d at 447.

The Dallas Court of Appeals reached the same conclusion we reach here. See Schuld v. Dembrinski, 12 S.W.3d 485, 489 (Tex. App.—Dallas 2000, no pet.). In Schuld, the Dallas court held that, because the Property Code grants district courts jurisdiction over partition actions and because the Government Code grants Dallas County courts at law jurisdiction concurrent with district courts, a Dallas County court at law has jurisdiction over partition actions. Id. at 489. The same analysis applies here. Harris County courts at law have jurisdiction concurrent with district courts, within a specified amount-in-controversy range. Tex. Gov’t Code Ann. § 25.0003(c)(1). Thus, because section 23.002 of the Property Code grants district courts jurisdiction over partition actions, Harris County courts at law also have jurisdiction over partition actions, so long as the amount in controversy falls within the specified range. See Tex. Prop. Code Ann. § 23.002(a); Tex. Gov’t Code Ann. § 25.0003(c)(1).

We hold that the trial court had jurisdiction over this partition action so long as the action is within the amount-in-controversy range over which Harris County courts at law have concurrent jurisdiction with district courts.

B.      The trial court lacked jurisdiction over this action because the amount in controversy exceeded its jurisdictional maximum

Eris next contends that the amount in controversy in this action is outside the trial court’s jurisdiction because the properties that Giannakopoulos asked the trial court to partition were worth “somewhere between $700,000 and $950,000.” Eris bases this fair market value on recent purchase offers made on the properties. Giannakopoulos responds that he is not seeking actual damages in excess of the trial court’s jurisdictional limit, and therefore the trial court had jurisdiction.

Because the trial court’s jurisdiction over this case arises from the grant of jurisdiction in section 25.003 of the Government Code—i.e., jurisdiction concurrent with that of Harris County district courts—its jurisdiction is bound by the statute’s amount-in-controversy limitations. See Tex. Gov’t Code Ann. § 25.0003(c)(1). The trial court thus had jurisdiction over this partition action only if the amount in controversy was more than $500 but not more than $200,000. Id. To determine the amount in controversy, courts of appeals generally look to the allegations in the plaintiff’s petition. Gulf Coast Waste Disposal Auth. v. Four Seasons Equip., Inc., 321 S.W.3d 168, 178 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989)). But Giannakopoulos’s petition does not contain a statement of jurisdiction or otherwise identify the amount in controversy. Cf. Tex. R. Civ. P. 47.

A plaintiff’s failure to state a jurisdictional amount of controversy in his petition, alone, will not deprive a trial court of jurisdiction; even if the pleadings fail to establish the amount in controversy, the plaintiff may prove the jurisdictional amount at trial. Peek, 779 S.W.2d at 804−05.[3] Here, however, we cannot conclude that the evidence at trial proved an amount in controversy within the trial court’s jurisdiction.

Generally, when a suit is for an interest in real property, rather than damages, the value of the property interest at issue determines the amount in controversy.[4] See Tune v. Tex. Dept. of Pub. Safety, 23 S.W.3d 358, 361−62 (Tex. 2000) (“It has long been the law that the phrase ‘amount in controversy,’ in the jurisdictional context, means ‘the sum of money or the value of the thing originally sued for . . . .”) (quoting Gulf, C. & S.F. Ry. Co. v. Cunnigan, 67 S.W. 888, 890 (Tex. 1902) (emphasis added in Tune)); see also AIC Mgmt. v. Crews, 246 S.W.3d 640, 644 (Tex. 2008) (holding that county court at law had jurisdiction over eminent domain proceedings even though value of property exceeded court’s amount-in-controversy jurisdiction because specific statutory grant of jurisdiction over eminent domain proceedings was not subject to amount-in-controversy limitation in grant of general jurisdiction); Red Deer Oil Dev. Co. v. Huggins, 155 S.W. 949, 950 (Tex. Civ. App.—Amarillo 1913, writ ref’d) (recognizing rule that “amount in controversy” in suit to foreclose lien on real property is determined by value of property covered by lien). Eris cites evidence in the record supporting his contention that the fair market value of the properties is in the area of $700,000 to $950,000.[5] Giannakopoulos has not identified any evidence to the contrary; nor have we found any.

In response to Eris’s jurisdictional argument based on the amount in controversy, Giannakopoulos stated:

Appellant Eris is focusing on the value of the Property rather than the remedy Giannakopoulos seeks. Appellee Giannakopoulos merely seeks to partition the Property in kind; a partition action is an equitable remedy. Giannakopoulos is not seeking actual damages that exceed $100,000. In fact, the only amount in controversy at issue in this suit is for the reimbursement of Eris’ portion of the property taxes Giannakopoulos paid, as well as reimbursement for a portion of the maintenance of the Property. And, the afore-mentioned amounts do not exceed $100,000. Therefore the Trial court has subject matter jurisdiction over the suit.

Giannakopoulos cites no authority to support his contention that we should exclude the value of the property at issue in this case in determining the amount in controversy, and we have found none. The authorities cited above dictate the opposite conclusion. Giannakopoulos also cites no authority to support his implication that the trial court had equitable jurisdiction over the partition action independent of its amount-in-controversy jurisdictional limits.

Statutory county courts are not courts of general jurisdiction “with the power to ‘hear and determine any cause that is cognizable by courts of law or equity.’” Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) (describing general jurisdiction of district courts and quoting Tex. Gov’t Code §§ 24.007–.008). We therefore may not assume jurisdiction in the county court at law when Giannakopoulos provides no statutory or other basis for the equitable jurisdiction he asserts. See Medina v. Benkiser, 262 S.W.3d 25, 27 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that, while statutory county courts have authority to enter injunctions, they lack jurisdiction to do so unless they have jurisdiction over the controversy, “either because of the subject matter or because of the amount in controversy.”); see also Martin v. Victoria Indep. Sch. Dist., 972 S.W.2d 815, 818 (Tex. App.—Corpus Christi 1998, pet. denied) (“The power to issue mandamus or equitable relief, as exercised by county courts, must be conferred by a statutory grant; usually the plaintiff must rely on the county court’s concurrent jurisdiction and plead an amount in controversy sufficient to trigger the county court's jurisdiction.”).

We therefore hold that the amount in controversy in this action was outside the trial court’s jurisdictional limits.

Conclusion

We hold that the Harris County Civil Court at Law Number One lacked jurisdiction over this partition action.[6] We therefore vacate its judgment and dismiss the partition action for lack of jurisdiction.

                                                                   Harvey Brown

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

 --------------------------------------------------------------------------------

[1]           Under the Government Code, a county court may not have jurisdiction over specifically enumerated types of lawsuits even when a district court has jurisdiction over such suits. See Tex. Gov’t Code Ann. § 26.043 (listing cases over which constitutional county court lacks jurisdiction). The parties have not identified any provision specifically carving out partition actions from a Harris County court at law’s jurisdiction.

[2]           Eris cites Miller v. Fenton, 207 S.W. 631, 632 (Tex. Civ. App.—Texarkana 1918, no writ.), for the proposition that “[a] county court does not have jurisdiction to partition real estate.” Miller does not address this issue. See id.

[3]           This rule applies when the defendant fails to object to the defective pleadings and the pleadings do not affirmatively disprove jurisdiction. See Peek, 779 S.W.2d at 804. Eris does not claim to have objected to Giannakopoulos’s pleadings, and Giannakopoulos’s pleadings do not affirmatively demonstrate that the properties have a value in excess of the trial court’s jurisdiction.

[4]           Although Giannakopoulos also sought damages relating to property taxes and insurance, the trial court severed those claims from the partition action.

[5]           Giannakopoulos’s pleadings do not limit his claims to a one-half interest in the properties. Moreover, even if we treat the amount in controversy as the one-half interest in the properties granted to Giannakopoulos by the trial court, one-half of $700,000 exceeds the trial court’s jurisdiction in this action.

[6]           This appeal does not concern the portions of the original suit that the trial court severed from the partition action, nor does our holding.

Statute governing permissive interlocutory appeal has changed

Under prior rule, all parties had to agree to interlocutory appeal if it was not otherwise authorized. No longer so, but older cases may fall under the rule in effect at the time, as seen in short per curiam opinion handed down by the Fourteenth Court of Appeals last week.  

   

MEMORANDUM OPINION 

   

This is an attempted discretionary interlocutory appeal of an order signed February 28, 2012, permitting an interlocutory appeal from partial summary judgment orders.

  

Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).

  

Section 51.014(d)-(f) of the Texas Civil Practice and Remedies Code, as amended in 2011, provides for appeals from orders that are not otherwise appealable when permitted by the trial court. The 2011 amendments to the statute explicitly apply only to cases commenced on or after September 1, 2011. See Act of May 25, 2011, 82nd Leg. R.S., ch. 203, §§ 3.01, 6.01 2011 Tex. Gen. Laws 758, 761. Before the 2011 amendments, the statute required that all parties agree to the interlocutory appeal. See Act of May 27, 2005, 79th Leg. R.S., ch. 1051, §§ 102, 2005 Tex. Gen. Laws 3512, 3512-13 (former Tex. Civ. Prac. & Rem. Code §. 51.014(d).

  

This suit commenced in 2009; therefore, it is governed by the prior version of the statute requiring the agreement of all parties before an interlocutory appeal may be taken. On April 2, 2012, this court received notice that appellee, Main Street Parking, Ltd, objects to an interlocutory appeal in this case.

  

On April 3, 2012, this court notified the parties that it would dismiss the appeal for want of jurisdiction unless any party filed a response within ten days demonstrating that this court has jurisdiction over the appeal. No response was filed.

  

Accordingly, the appeal is ordered dismissed.

  

SOURCE: 14^TH COURT OF APPEALS - HOUSTON - No. 14-12-00262-CV – 4/24/12 

CASE STYLE: ACE PARKING MANAGEMENT, INC. v MAIN STREET PARKING, LIMITED

Suit complaining of overcharges for gas properly dismissed on jurisdictional grounds (Tara Partners v. CenterPoint Energy)

   
Billing dispute over gas requires administrative complaint
  

First Court of Appeals affirms dismissal of commercial customer's suit seeking recovery of alleged overcharges for failure to exhaust administrative remedies as provided for by the Gas Utility Regulatory Act (“GURA”).

      
Tara Partners, Ltd v. CenterPoint Energy Resources Corp. (Tex.App- Houston [1^st Dist.] April 19, 2012)  

O P I N I O N

  

          Appellant, Tara Partners, Ltd. (“Tara Partners”), challenges the trial court’s dismissal without prejudice of its suit pursuant to the plea to the jurisdiction of appellee, CenterPoint Energy Resources Corp. (“CenterPoint”).  In its sole issue on appeal, Tara Partners argues that the trial court erred in granting CenterPoint’s plea to the jurisdiction and in dismissing its case.
          We affirm.

Background

Tara Partners sued “CenterPoint Energy” for breach of contract, alleging that CenterPoint had billed Tara Partners for more natural gas than it actually used.  Specifically, Tara Partners argued that CenterPoint “has materially breached . . . contractual arrangements . . . because [it] has, with respect to substantial portions of the period ranging from November 2009 through February 2010, invoiced [Tara Partners] for the price of more cubic feet of natural gas than [Tara Partners] actually consumed.”  Tara Partners requested that the trial court “retroactively correct [CenterPoint’s] bills for natural gas” and award it damages in the amount it was required to overpay.

CenterPoint Energy, Inc. filed a plea to the jurisdiction and a verified denial asserting that it was not liable in the capacity alleged by Tara Partners.  Tara Partners subsequently amended its pleading to add appellee, CenterPoint, as a defendant, and it non-suited CenterPoint Energy, Inc.

CenterPoint filed its own plea to the jurisdiction, arguing that the trial court lacked jurisdiction over the case because the Texas Utilities Code has established a regulatory scheme that confers exclusive jurisdiction for claims regarding rate disputes and refunds for overcharges on the Texas Railroad Commission or on the municipality involved.  See Tex. Util. Code Ann. §§ 101.001–105.051 (Vernon 2007 & Supp. 2011). 

Tara Partners responded, arguing that, because its suit is based on a private contract, no administrative regulation of natural gas rates and services applies to its claim.  It also stated that it attempted to file a complaint with the Texas Railroad Commission, which dismissed the complaint.  Tara Partners attached the letter it received from the Railroad Commission.  The letter provided that it was in reference to the “Request for an Informal Complaint by Small Commercial Customer Tara Partners, Ltd. Against CenterPoint Energy.”  The letter stated that Tara Partners’ complaint, which it determined involved a billing dispute, “is not subject to the informal complaint process, which is reserved for complaints over natural gas transmission discrimination issues.”  The letter further stated that “consumer bill complaints [are handled] through the Market Oversight Section’s consumer complaint function,” but it concluded, “Since the dispute is the subject of a lawsuit, the matter has proceeded beyond this Division’s ability to facilitate a resolution.”

The trial court granted CenterPoint’s plea to the jurisdiction and dismissed Tara Partners’ claims without prejudice.  This appeal followed.

Analysis

In its sole issue, Tara Partners argues that the trial court erred in granting CenterPoint’s plea to the jurisdiction.

A.                         Standard of Review

Subject-matter jurisdiction is essential to the authority of a court to decide a case.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction.  Id. at 446.  The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Whether a trial court has subject-matter jurisdiction is a question of law and is reviewed de novo.  See Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  When conducting a de novo review, the appellate court exercises its own judgment and redetermines each legal issue, giving no deference to the trial court’s decision.  Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits, but must consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.  Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).  The court of appeals must take the allegations in the petition as true and construe them in favor of the pleader.  Tex. Ass’n of Bus., 852 S.W.2d at 446.

CenterPoint asserts that the City of Houston, as the municipality where Tara Partners’ gas service is provided, and/or the Texas Railroad Commission have exclusive jurisdiction.  “An agency has exclusive jurisdiction when the Legislature has granted that agency the sole authority to make an initial determination in a dispute.”  In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding) (citing Subaru of Am. Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) and Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex. 2000)).  If an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency’s action, and, until the party has done so, the trial court lacks subject-matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction.  Id. at 321–22.  Whether an agency has exclusive jurisdiction is a question of law we review de novo.  See id. at 322; David McDavid Nissan, 84 S.W.3d at 222.

B.                         Analysis

As Tara Partners argues, there is a constitutional presumption that district courts are authorized to resolve disputes.  See In re Entergy Corp., 142 S.W.3d at 322 (citing Tex. Const. art. V, § 8).  We also observe that administrative agencies “may exercise only those powers the law confers upon them in clear and express statutory language and those reasonably necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the agency.”  Id.  Thus, we must determine whether, as CenterPoint argues, “the ‘Constitution or other law’ conveys exclusive, appellate, or original jurisdiction on another court or administrative agency.”  See id.  Whether the Texas Railroad Commission and/or the City of Houston has exclusive jurisdiction over Tara Partners’ claim depends on statutory interpretation.  See id. (citing David McDavid Nissan, 84 S.W.3d at 221). 

“An agency has exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that Congress intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.’”  Id. (quoting David McDavid Nissan, 84 S.W.3d at 221).  When construing a statute, our objective is to determine and give effect to the Legislature’s intent.  Id. (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)).  We look to the plain and common meaning of the statute’s words, and when the statute’s meaning is unambiguous, we interpret that statute according to its plain language.  Id. (quoting State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)).

The legislature enacted the Gas Utility Regulatory Act (“GURA”) “to establish a comprehensive and adequate regulatory system for gas utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the utilities.”  See Tex. Util. Code Ann. §§ 101.001–.002 (Vernon 2007) (“Gas utilities are by definition monopolies in the areas they serve. . . .  Public agencies regulate utility rates, operations, and services as a substitute for competition.”).  GURA provides:

(a)  The railroad commission has exclusive original jurisdiction over the rates and services of a gas utility:

   (1) that distributes natural gas or synthetic natural gas in:

               (A)       areas outside a municipality; and

(B)       areas inside a municipality that surrenders its jurisdiction to the railroad commission under Section 103.003; and

(2) that transmits, transports, delivers, or sells natural gas or synthetic natural gas to a gas utility that distributes the gas to the public.

(b)  The railroad commission has exclusive appellate jurisdiction to review an order or ordinance of a municipality exercising exclusive original jurisdiction as provided by this subtitle.

Id. § 102.001 (Vernon 2007).

          Regarding the jurisdiction of a municipality, GURA provides:

To provide fair, just, and reasonable rates and adequate and efficient services, the governing body of a municipality has exclusive original jurisdiction over the rates, operations, and services of a gas utility within the municipality, subject to the limitations imposed by this subtitle,[1] unless the municipality surrenders its jurisdiction to the railroad commission under Section 103.003.

Id. § 103.001 (Vernon 2007).

          GURA defines “gas utility” as including “a person or river authority that owns or operates for compensation in this state equipment or facilities to transmit or distribute combustible hydrocarbon natural gas or synthetic natural gas for sale or resale in a manner not subject to the jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas Act (15 U.S.C. Section 717 et seq.). . . .”  Id. § 101.003(7) (Vernon Supp. 2011).  A “person” includes “an individual, a partnership of two or more persons having a joint or common interest, a mutual or cooperative association, a limited liability company, and a corporation.”  Id. § 101.003(10).  A “rate” is defined as:

(A)                        any compensation, tariff, charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by a gas utility for a service, product, or commodity described in the definition of gas utility in this section; and

(B)                         a rule, regulation, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification.

Id. § 101.003(12).  Finally, GURA provides that “service”

has its broadest and most inclusive meaning.  The term includes any act performed, anything supplied, and any facilities used or supplied by a gas utility in the performance of the utility's duties under this subtitle to its patrons, employees, other gas utilities, and the public.  The term also includes the interchange of facilities between two or more gas utilities.

Id. § 101.003(14). 

          The statutory description of GURA as “comprehensive” demonstrates the Legislature’s intent that GURA encompass all or virtually all pertinent considerations involving gas utilities operating in Texas.  See id. §§ 101.001–.002; cf. In re Entergy Corp., 142 S.W.3d at 323 (construing essentially identical language of the Public Utility Regulatory Act (“PURA”)).[2]  Furthermore, sections 102.001 and 103.001 grant “exclusive original jurisdiction” over the rates and services to the municipality or to the Railroad Commission when no municipality is involved.  See Tex. Util. Code Ann. §§ 102.001, 103.001. 

Tara Partners’ dispute involves the amount it was billed for natural gas provided by CenterPoint.  CenterPoint is a corporation “that owns or operates for compensation in this state equipment or facilities to transmit or distribute combustible hydrocarbon natural gas or synthetic natural gas for sale,” and, thus, it is a “gas utility” as defined by GURA.  See id. §§ 101.003(7), (10).  A “rate” includes any charge demanded or collected by a gas utility “for a service, product, or commodity described in the definition of gas utility,” including a “practice[] or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification.”  See id. § 101.003(12); see also id. § 101.003(14) (giving “service” its “broadest and most inclusive meaning,” including “anything supplied” by gas utility “in the performance of the utility’s duties under this subtitle to its patrons”).  Thus, Tara Partners’ claim that CenterPoint incorrectly charged it for natural gas falls under the statutory definitions of “rate” or “service” over which the municipality or Railroad Commission has exclusive original jurisdiction.  See id. §§ 102.001, 103.001; cf. In re Entergy Corp., 142 S.W.3d at 323–24 (construing essentially identical language of PURA and concluding that Legislature expressed clear intention that Public Utility Commission have exclusive jurisdiction over dispute between Entergy and ratepayers).[3]

Because the municipality—or, in the event that the municipality has surrendered its jurisdiction, the Railroad Commission—has exclusive jurisdiction over this claim, Tara Partners was required to exhaust all administrative remedies before seeking review of the agency’s action in the district court.  See In re Entergy Corp., 142 S.W.3d at 321.  It is undisputed that Tara Partners has not pursued its claim with the municipality, nor has it pursued any appeal to the Railroad Commission;[4] thus, the trial court lacks subject-matter jurisdiction and properly dismissed Tara Partners’ claim.  See id. at 321–22.

Tara Partners argues that GURA does not apply to its claim because it is suing for breach of a private contract.  However, the plain language of GURA defines a “rate” over which the municipality or Railroad Commission has exclusive original jurisdiction as including a “contract affecting the compensation, tariff, charge, fare, toll, rental, or classification” charged by a gas utility.  See Tex. Util. Code Ann. § 101.003(12). 

Tara Partners argues that the Texas Supreme Court considered a city’s breach of contract lawsuit against a gas utility “without remarking upon the absence of subject matter jurisdiction.”  See S. Union Co. v. City of Edinburg, 129 S.W.3d 74, 76–77 (Tex. 2003).  However, Southern Union actually addressed the question of whether “gas purchased by consumers within the City from companies affiliated with [the gas utilities] is subject to the 4% franchise tax under [an applicable city ordinance],” and the gas sales at issue were “direct sales” made by unregulated “special marketing companies.”  Id. at 76.  Thus, this case is distinguishable from the present case. 

We further disagree with Tara Partners’ assertion that In re Entergy Corp. “should be understood as contemplating that private contractual disputes between private parties and utilities can be maintained as original actions . . . commenced in the state district courts.”  The Texas Supreme Court rejected the plaintiff’s argument that the dispute involved a private contract and did not fall under the exclusive original jurisdiction provision in PURA.  In re Entergy Corp., 142 S.W.3d at 323–24.  The supreme court held that the agreement at issue “affected the public interest and, more importantly, was the basis for the [Public Utility Commission’s] regulatory approval of” Entergy’s merger with another entity and was implemented by an order of the Public Utility Commission.  See id. at 324.  Here, as we have already held, the plain language of GURA provides that contracts affecting charges by a gas utility are considered “rates” over which the municipality or Railroad Commission has exclusive original jurisdiction, and Tara Partners’ claim falls within the stated purpose of GURA’s regulations.  See Tex. Util. Code Ann. § 101.003(12) (defining “rate”); id. § 103.001 (“To provide fair, just, and reasonable rates and adequate and efficient services, the governing body of a municipality has exclusive original jurisdiction over the rates, operations, and services of a gas utility within the municipality. . . .”); see also In re Entergy Corp., 142 S.W.3d at 322 (“An agency has exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that Congress intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.’”).

Thus, we conclude that the trial court lacked subject-matter jurisdiction over this claim, and its dismissal of the suit without prejudice was proper.

Conclusion

We affirm the order of the trial court dismissing Tara Partner’s suit.

                                                                    Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Bland, and Sharp.

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[1]           GURA further provides that the administrative decisions of a municipality are appealable to the Texas Railroad Commission and that decisions of the Railroad Commission are subject to judicial review.  See Tex. Util. Code Ann. § 103.024 (Vernon 2007) (providing that municipality is entitled to judicial review of certain decisions of Railroad Commission); id. §§ 103.051–.053 (Vernon 2007) (providing for appeal of municipality decisions to Railroad Commission); id. § 105.001 (Vernon 2007) (providing right to judicial review of decisions of Railroad Commission).

 [2]           As analyzed by the Texas Supreme Court in In re Entergy Corp., PURA provides that its purpose is “to establish a comprehensive and adequate regulatory system for electric utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the electric utilities.”  In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004) (orig. proceeding) (quoting Tex. Util. Code Ann. § 31.001(a) (Vernon 2007)).

 [3]           As analyzed by the Texas Supreme Court in In re Entergy Corp., PURA provides that the Public Utility Commission has “exclusive original jurisdiction over the rates, operations, and services of an electric utility in (1) areas outside a municipality; and (2) areas inside a municipality that surrenders its jurisdiction to the Commission under Section 33.002.”  In re Entergy Corp., 142 S.W.3d at 323 (quoting Tex. Util. Code Ann. § 32.001 (Vernon 2007)).

 [4]           After the trial court’s plenary power expired, Tara Partners filed a second letter from the Railroad Commission informing it that “[t]he Commission does not handle this type of complaint through the Commission’s informal complaint process” and that “[t]he City of Houston has original jurisdiction in setting rates and handling quality of service issues for gas utilities within the city limits.”  We note that this letter does not create a fact issue regarding whether Tara Partners has exhausted its administrative remedies, because it remains undisputed that Tara Partners has not attempted to pursue its claim with the applicable municipality.  See Tex. Util. Code Ann. § 103.001 (Vernon 2007) (providing that governing body of municipality has exclusive original jurisdiction over rates, operations, and services of gas utility within municipality).