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Hunt v. City of Diboll

Court of Appeals of Texas, Twelfth District, Tyler

November 8, 2017



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



         Appellants, William Paul Hunt and ADE-WIFCO Steel Products, Inc. (ADE), appeal from the trial court's order granting pleas to the jurisdiction filed by Appellees, the City of Diboll (the City), John McClain, in his official capacity as Mayor of the City of Diboll, Steve Baker, in his official capacity as Chief of Police of the City of Diboll, and Gerry Boren, in his official capacity as City Manager of the City of Diboll (the City officials), and American Traffic Solutions, Inc. and American Traffic Solutions, LLC (ATS). Appellants raise three issues on appeal. We affirm in part, and reverse and remand in part.


         The City of Diboll is a home-rule municipality. Diboll's city charter requires that ordinances imposing a "penalty, fine, or forfeiture" are not effective until published. In 2006, the Diboll city council enacted ordinance 06-07, which authorizes the use of red light cameras to capture red light violations at roadway intersections. A violation of this ordinance is a criminal offense and carries a penalty of $100. In 2014, the city council enacted ordinance 01-14, which tracks the provisions of Chapter 707 of the Texas Transportation Code, and provides a $75 civil penalty for red light violations captured by a red light camera.[1] Ordinance 01-14 provides that (1) the registered owner of the vehicle is responsible for the $75 penalty; and (2) an individual may contest liability by requesting an administrative hearing, the timelines and procedures for which are set forth in the ordinance. ATS, a private company, contracted with the City to implement and operate Diboll's red light camera system. ATS provides a "turnkey solution" for the operation and enforcement of Diboll's red light camera system which includes (1) collecting the funds into a special account, (2) providing a web based citation processing system, (3) mailing the violation notices, (4) obtaining vehicle registration to issue citations, and (5) providing expert testimony in court.

         In 2015, Appellants received notices of infractions for red light violations captured by red light cameras in the City of Diboll. The notices alleged violations of ordinance 06-07 and stated the registered owners of the vehicles owed a $75 civil penalty to the City. The notices also contained instructions for the payment of the penalty and on how to request an administrative hearing to contest liability. Hunt did not pay the penalty, and sent a letter to the City stating that he did not consent to a non-judicial decision, demanding a jury trial, and asserting other constitutional rights guaranteed in criminal proceedings.

         A law firm representing the City subsequently sent a notice to Hunt seeking to collect the unpaid penalty. The notice indicated Hunt owed a $125 penalty for the red light violation. The City set an administrative hearing on the violation, and sent notice to Hunt, who did not appear for the hearing. Subsequently, Diboll placed a registration hold on Hunt's vehicle. Unlike Hunt, ADE paid the $75 penalty assessed against it.

         At the time Appellants received their notices of infraction, neither ordinance 06-07 nor ordinance 01-14 had been published in the City's official newspaper. Not until November 2016, did the City publish ordinance number 01-14 in its official newspaper.

         Appellants brought an action, on their own behalf and on the behalf of a putative class of individuals assessed red light penalties by Diboll, pursuant to the Uniform Declaratory Judgment Act (UDJA) challenging the validity of ordinances 06-07 and 01-14. Alternatively, they sought a declaratory judgment that Baker, McClain, and Boren, in their official capacities, acted ultra vires by installing red light camera systems and collecting red light camera penalties. Appellants sought an injunction prohibiting the City and its officials from operating red light camera systems and enforcing red light penalties. They also made a claim for reimbursement of the red light penalties, or alternatively, a refund of penalties paid under Article I, Section 17 of the Texas Constitution. Appellants also sued ATS for fraud and violations of the Deceptive Trade Practices Act (DTPA).

         The City, its officials, and ATS filed pleas to the jurisdiction alleging the trial court lacked subject matter jurisdiction to hear Appellants' claims against them. In its original and supplemental pleas to the jurisdiction, the City argued that the trial court lacked subject matter jurisdiction for the following reasons: (1) Appellants failed to exhaust their administrative remedies, (2) Hunt lacked standing to seek reimbursement because he failed to pay the $75 penalty, (3) Appellants lacked standing to seek declaratory relief regarding the constitutionality of Diboll's red light ordinance because the pleadings complained of violations of criminal protections pursuant to the Texas Constitution, but neither Hunt nor ADE were actually charged with a criminal offense, (4) Appellants' pleadings affirmatively negate jurisdiction on their takings claims because the pleadings allege that the taking occurred pursuant to unlawful or unauthorized authority, and (5) the City's immunity had not been waived.

         The trial court granted both pleas to the jurisdiction and dismissed all of Appellants' claims against the City, its officials, and ATS, with prejudice.[2] Consequently, the trial court did not rule on Appellants' petition for class certification or their motion for summary judgment. This appeal followed.

         Claims Against the City and its Officials

         In Appellants' first issue, they contend the trial court erred in granting the City's plea to the jurisdiction because (1) they were not obligated to exhaust their administrative remedies, as ordinance 06-07 is a criminal ordinance containing no administrative remedies and ordinance 01-14 had not been published at the time penalties were assessed, (2) their claims are not barred by immunity, and (3) they have standing to bring their claims because the City's subsequent publication of ordinance 01-14 did not render their claims moot.

         Standard of Review

         A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Id. The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. Id. To prevail on a plea to the jurisdiction, a defendant must demonstrate an incurable jurisdictional defect apparent on the face of the pleadings rendering it impossible for the plaintiff's petition to confer jurisdiction on the district court. MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex. App.-Austin 2005, pet. denied) (citing Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 438, 331 S.W.2d 910, 917 (1960)); City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex. App.-Austin 2002, pet. denied).

         Whether a trial court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we review a challenge to the trial court's subject matter jurisdiction de novo. Id. In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. See Blue, 345 S.W.3d at 554-55. We construe the plaintiff's pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. at 228.

         If a plaintiff fails to plead sufficient facts affirmatively demonstrating the trial court's jurisdiction, but the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. However, if the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. Also, through inaction, a plaintiff may lose the opportunity to amend. See Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 347 (Tex. App.-Eastland 2008, no pet.); Tara Partners Ltd. v. City of S. Houston, 282 S.W.3d 564, 570 (Tex. App.-Houston [14th Dist.] 2009, pet. denied).

         As a non-movant, the plaintiff's burden is to produce evidence raising a genuine issue of material fact on the elements specified in defendant's plea. Tex. R .Civ. P. 166a(i); see Miranda, 133 S.W.3d at 228. If the evidence raises a fact question on jurisdiction, the plea must be denied. See, e.g., Tex. Dep't of Aging & Disability Servs. v. Loya, 491 S.W.3d 920, 923-24 (Tex. App.-El Paso 2016, no pet.). However, if the defendant's evidence is undisputed and demonstrates a lack of jurisdiction, and if the plaintiff's responsive evidence does not raise a fact question on the jurisdictional issue, as a matter of law, the trial court must grant the plea to the jurisdiction. Id. at 924.

         Challenge to Ordinance 06-07

         Appellants sought a declaratory judgment on grounds that ordinance 06-07, which they claim is the basis for the penalties the City has assessed against them, is unconstitutional because the ordinance deprives them of their presumption of innocence and other constitutional protections. They also sought to enjoin the City from enforcing ordinance 06-07. The City and its officials contend that Appellants were never charged with a violation of ordinance 06-07, or any criminal offense, but were only assessed civil penalties pursuant to ordinance 01-14. They further argue that Appellants must challenge the constitutionality of ordinance 06-07 in the criminal courts of jurisdiction. Appellants, in turn, argue that ordinance 06-07 is unconstitutional, and that the non-criminal enforcement of the ordinance threatens their vested property rights and personal rights by assessing financial penalties and depriving them of their constitutional rights. The parties agree that ordinance 06-07 is a criminal ordinance.

         The meaning and validity of a criminal statute or ordinance should usually be determined by a court exercising criminal jurisdiction in order to avoid potentially conflicting decisions between civil and criminal courts of last resort. Consumer Serv. All. of Texas, Inc. v. City of Dallas, 433 S.W.3d 796, 803 (Tex. App.-Dallas 2014, no pet.) (citing State v. Morales, 869 S.W.2d 941, 947-48 (Tex. 1994), which states, "prospect of both civil and criminal courts construing criminal statutes would tend to 'hamstring' the efforts of [law] enforcement officers, create confusion, and might result finally in precise contradiction of opinions between the [civil courts] and the Court of Criminal Appeals to which the Constitution has entrusted supreme and exclusive jurisdiction in criminal matters"). A civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute in two circumstances: (1) when 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;" and (2) when the "enforcement of an unconstitutional statute threatens irreparable injury to property rights." Morales, 869 S.W.2d at 942.

         Accordingly, courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury. Id.; Wild Rose Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211, 215 (Tex. App.- Tyler 2012, no pet.) (citing Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex. 1969)). The requirement of irreparable injury is related to the adequacy of the remedy at law. State v. Logue, 376 S.W.2d 567, 572 (Tex. 1964). The supreme court has held that the opportunity to assert the unconstitutionality of a penal provision as a defense to a criminal prosecution is an adequate remedy at law. Id. When the meaning and validity of a penal statute or ordinance can be resolved in any criminal proceeding that may be instituted and vested property rights are not in jeopardy, there is no occasion for the intervention of equity. Passel, 440 S.W.2d at 63; Consumer Serv. All. of Texas, Inc., 433 S.W.3d at 804.

         In this case, Appellants contend that "the non-criminal manner in which Diboll enforces Ordinance 06-07 threatens vested property rights, namely Plaintiffs' cash." We first note that only ADE, not Hunt, paid the assessed penalty. Moreover, to establish that the enforcement of an ordinance will cause irreparable harm, the complaining party must show harm other than that inherent in the prosecution for an offense. City of Dallas v. Dallas Cty Housemovers Ass'n, 555 S.W.2d 212, 214 (Tex. Civ. App.-Dallas 1977, no writ). Appellate courts have found irreparable injury in cases such as where the enforcement of the penal provision would result in the destruction of property before the provision's validity could be tested in the courts, or where the penal provision operated against the potential customers of a business, as well as against the operator. Id. In this case, the payment of a $75 fine is not tantamount to the type of injury considered to be "irreparable." Rather, a fine is inherent in the prosecution of an offense and cannot amount to irreparable injury in this case.

         Appellants also argue that the "ordinance threatens or impairs [their] personal rights, as the non-criminal manner in which Diboll enforces Ordinance 06-07 deprives vehicle owners like [Appellants] of all constitutional protections that would be afforded them under the Texas Constitution when charged with a criminal violation, including the right to a jury trial, the right to require the state to prove its case beyond a reasonable doubt, the presumption of innocence, and the right against self-incrimination." "If the harm alleged by a citizen flows not from enforcement of the statute, but rather, from some other cause susceptible to the equity powers of a civil court, then personal rights can serve as a sufficient justification for the granting of such equitable relief." Morales, 869 S.W.2d at 948. In this case, the alleged harm flows directly from the City's enforcement of ordinance 06-07. Accordingly, Appellants' claim is an impermissible attempt to obtain a naked declaration of the ordinance's unconstitutionality. A trial court "has no jurisdiction to render naked declarations of 'rights, status or other legal relationships arising under a penal statute.'" Id. (quoting Malone v. City of Houston, 278 S.W.2d 204, 206 (Tex. Civ. App.-Galveston 1955, writ ref'd n.r.e.)). Thus, under the circumstances of this case, Appellants' personal rights cannot serve as a sufficient justification for the granting of equitable relief. See Passel, 440 S.W.2d at 63-64 (stating that civil court may grant injunctive relief to protect personal rights, such as when such relief is "sought to prevent administrative enforcement of an administrative regulation adopted for the purpose of implementing the statute[]"); see also Morales, 869 S.W.2d at 946 (stating that in Passel, plaintiffs did not seek a naked declaration of the penal statute's unconstitutionality, but a declaration of the invalidity of the statute and an injunction against enforcement of a school district rule); Destructors, Inc. v. City of Forrest Hill, No. 2-08-440-CV, 2010 WL 1946875, at *4 (Tex. App.-Fort Worth May 13, 2010, no pet.) (mem. op.) ("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[]"). As the Texas Supreme Court has explained, a personal right cannot be uniformly substituted for a property right, thereby expanding a civil court's equity jurisdiction over criminal statutes. See Morales, 869 S.W.2d at 946.

         For the reasons discussed above, we conclude that Appellants made no showing that enforcement of ordinance 06-07 caused irreparable injury to personal or property rights. See id. at 942. Consequently, the trial court lacked subject matter jurisdiction to hear Appellants' claims for declaratory and injunctive relief against the City. See id. Therefore, the trial court did not err in dismissing Appellants' claims challenging the constitutionality of ordinance 06-07, a criminal ordinance. See id.; see also Dallas Cty Housemovers Ass'n, 555 S.W.2d at 214.

         Failure to Exhaust Administrative Remedies

         Appellants' remaining claims against the City and its officials challenge the validity of ordinance 01-14 and seek reimbursement of red light penalties paid. Alternatively, Appellants allege that the City and its officials acted ultra vires in installing the red light cameras and enforcing red light penalties. In response, the City argues that the trial court did not have jurisdiction over Appellants' claims challenging the validity of ordinance 01-14 because they failed to exhaust their administrative remedies pursuant to ordinance 01-14 and Chapter 707 of the transportation code. Appellants argue that they were not obligated to exhaust administrative remedies because ordinance 01-14 had not been published at the time they received their notices. The City, however, argues that (1) the Diboll city charter only requires publication of penal ordinances, (2) ordinance 01-14 was not required to be published because it did not prohibit conduct that would otherwise be legal, and (3) section 51.003 of the Texas Local Government Code cures any defects from the failure to publish ordinance 01-14 because it merely amended ordinance 06-07.

         Courts of general jurisdiction are presumed to have subject matter jurisdiction absent a contrary showing that the Texas Constitution or other law has conferred jurisdiction on another court, tribunal, or administrative body. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002); see also Tex. Const. art. V, § 8; Tex. Gov't Code Ann. §§ 24.007-.008 (West 2004 and West Supp. 2016). Administrative bodies may exercise only those powers the law confers upon them in clear and express language. Subaru of Am., Inc., 84 S.W.3d at 220. Courts will not imply the existence of additional authority for administrative bodies, nor may these bodies create for themselves any excess powers. Id. In deciding whether an administrative body has exclusive jurisdiction, we look to its authorizing legislation for an express grant of exclusive jurisdiction, or for a "pervasive regulatory scheme" indicating an intent to confer exclusive jurisdiction. Emps. Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 908-09 (Tex. 2009). Ordinarily, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of an agency's action. Subaru of Am., Inc., 84 S.W.3d at 221. "Until then the trial court lacks subject matter jurisdiction and must dismiss the claims within the agency's exclusive jurisdiction." Id.

         Chapter 707 of the Texas Transportation Code authorizes local governments to enact ordinances to impose civil penalties on owners of vehicles photographed running a red light by a red light camera. See Tex. Transp. Code Ann. § 707.002. Chapter 707 provides for an administrative adjudication hearing if the owner of the vehicle challenges liability for the civil penalty and a de novo appeal to the appropriate municipal or justice court. Id. at §§ 707.014, 707.016.

         Our sister appellate courts have considered claims relating to red light camera ordinances that are similar to ordinance 01-14. Those courts have concluded that Chapter 707 creates a pervasive regulatory scheme intended to ensure that claims arising out of the use of red light camera systems would be resolved at the administrative level. Edwards v. City of Tomball, 343 S.W.3d 213, 221-22 (Tex. App.-Houston [14th Dist.] 2011, no pet.); City of Willis v. Garcia, 523 S.W.3d 729, 742 (Tex. App.-Beaumont 2017, pet. filed). Both the Edwards and Willis courts held that plaintiffs were required to exhaust their administrative remedies prior to bringing suit. Edwards, 343 S.W.3d at 222-23, Willis, 523 S.W.3d at 745.

         This case differs from both Edwards and Willis, as the City of Diboll failed to publish its red light camera ordinance as required by the city charter. Home-rule cities, such as Diboll, derive their powers from the Texas Constitution. See Tex. Const. art. XI, § 5; see also Tex. Local Gov't. Code Ann. § 51.072 (West 2008). They possess "the full power of self-government and look to the Legislature not for grants of power, but only for limitations on their power." In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002), as supplemented on denial of reh'g (Aug. 29, 2002). The Texas Local Government Code states that home rule municipalities, such as the City of Diboll, may publish a caption of an adopted ordinance that summarizes the purpose of the ordinance and any penalty for its violation in lieu of a requirement in the city's charter that the text of the ordinance be published. Tex. Local Gov't. Code Ann. § 52.013(a) (West 2008). If the city's charter does not provide for the method of publication of an ordinance, the full text of the ordinance or a caption that summarizes the purpose of the ordinance and the penalty for violating the ordinance may be published at least twice in the municipality's official newspaper. Id. § 52.013(b).

         We construe a city charter provision according to the rules governing the interpretation of statutes generally. Rossano v. Townsend, 9 S.W.3d 357, 363 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Where the statutory text is unambiguous, we adopt a construction supported by the statute's plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In construing city charters and municipal ordinances, we use the same rules as we do when construing statutes. Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002); City of Austin v. Hyde Park Baptist Church, 152 S.W.3d 162, 165-66 (Tex. App.-Austin 2004, no pet.).

         The Diboll city charter states that "no ordinance imposing a penalty, fine, or forfeiture shall become effective until the caption of the ordinance, which shall summarize the purpose of the ordinance and the penalty for violating the ordinance has been published one time in the city's official newspaper." It is undisputed that at the time Appellants received their notices of infraction, ordinance 01-14 had not been published. Nevertheless, on appeal, the City argues that the city charter only requires ...

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