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The City of Houston v. Texas Propane Gas Association

Court of Appeals of Texas, Third District, Austin

July 18, 2019

The City of Houston, Appellant
v.
Texas Propane Gas Association, Appellee

          FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-17-001089, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Chari L. Kelly, Justice.

         The City of Houston appeals from the trial court's order denying its motion for summary judgment, in which the City asserts that the court lacks jurisdiction over claims for declaratory relief made by appellee Texas Propane Gas Association (TPGA). Because we determine that the trial court erred in concluding that TPGA met its burden to plead facts affirmatively demonstrating that it has associational standing to bring its claims, we will reverse and remand to the trial court to allow TPGA an opportunity to cure this pleading defect.

         BACKGROUND

         Chapter 113 of the Texas Natural Resources Code, also known as the Liquefied Petroleum Gas (LP-Gas) Code, provides that the Railroad Commission of Texas "shall administer and enforce the laws of this state and the rules and standards of the commission relating to liquefied petroleum gas." Tex. Nat. Res. Code §§ 113.001-.011. Pursuant to its authority under the Code to "promulgate and adopt rules or standards," the Commission adopted the LP-Gas Safety Rules. Id. § 113.051; 16 Tex. Admin. Code §§ 9.1-.403 (Railroad Comm'n of Tex., LP-Gas Safety Rules).

         In 2017 TPGA filed suit against the City challenging the legality of several "ordinances and regulations" that were passed by the Houston City Council in 2015 and which took effect in early 2016. According to its petition, TPGA is a "trade association representing a statewide membership of companies and individuals actively engaged in the liquefied petroleum gas ('LP-gas' or 'propane') industry." In general, the ordinances challenged by TPGA amended the City's Fire Code and placed new restrictions on the ability to store, use, handle, or dispense LP-Gas within the City's jurisdiction. According to TPGA, the ordinances impose more restrictive conditions on the LP-Gas industry than those imposed by the Commission's LP-Gas Safety Rules. TPGA sought a declaration that these ordinances and resulting regulations are invalid because they are pre-empted by Section 113.054 of the Texas Natural Resources Code and by the LP-Gas Safety Rules. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (Declaratory Judgments Act). In relevant part, Section 113.054 states:

The rules and standards promulgated and adopted by the [Railroad Commission] under section 113.051 preempt and supersede any ordinance, order, or rule adopted by a political subdivision of this state relating to any aspect or phase of the liquified petroleum gas industry.

Tex. Nat. Res. Code § 113.054. Specifically, TPGA requested that the court declare the following:

Those portions of City of Houston's Ordinance Nos. 2015-1108, 2015-1289, and 2015-1316, that adopted or amended Chapter 61 of the Houston Amendments of the 2012 International Fire Code or purported to otherwise regulate the LP-Gas industry, together with Chapter 61 of the Houston Amendments of the 2012 International Fire Code itself, . . . are invalid and ineffective to the extent they regulate to any aspect of the LP-Gas industry . . . .

         In the alternative, TPGA requested declarations that certain portions of the City's regulations are invalid because they are more restrictive than the LP-Gas Safety Rules, including from Chapter 61 of the Fire Code: (1) "6101.02 relating to fees and permits, (2) "6101.2 and 6103.3 relating to aggregate water capacity of LP-Gas containers," (3) "6101.3 relating to the required submission of applications and/or construction documents," and (4) "6104.2 relating to maximum storage capacity within certain storage capacity within districts of limitation." TPGA also challenged what it contends are more restrictive provisions found in Chapter 1, entitled "Scope and Administration," generally setting out the procedural mechanisms for enforcing the Fire Code's substantive regulations.

         TPGA subsequently filed a traditional motion for summary judgment on its claims against the City. See Tex. R. Civ. P. 166a. In response, the City filed a motion for summary judgment for lack of jurisdiction and a traditional motion for partial summary judgment. The trial court denied the parties' competing motions, including the City's motion for summary judgment for lack of jurisdiction. The City timely filed its notice of interlocutory appeal from the trial court's ruling on its jurisdictional challenge.[1] See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). In three issues, the City asserts that the trial court erred in concluding that it has subject-matter jurisdiction to consider TPGA's claims.

         STANDARD OF REVIEW

         Subject-matter jurisdiction is essential to the authority of a court to decide a case. Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.- Austin 2010, pet. denied) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993)). A challenge to subject-matter jurisdiction may be raised in a plea to the jurisdiction or in a motion for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.Wd.3d 547, 553-54 (Tex. 2000). "A summary-judgment motion challenging jurisdiction may challenge either the pleadings or the existence of jurisdictional facts." Lazarides v. Farris, 367 S.W.3d 788, 797 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004), and applying standard of review to denial of motion for summary judgment challenging subject-matter jurisdiction). When the movant challenges the pleadings, we determine if the plaintiff has met his burden to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. In conducting this review, we construe the pleadings liberally, taking them as true, and look to the pleader's intent. Id. (citing Texas Ass'n of Bus., 852 S.W.2d at 446). If the plaintiff has not affirmatively pleaded facts to support jurisdiction or negate jurisdiction, the matter is one of pleading sufficiency, and the court should provide the plaintiff with the opportunity to amend its pleadings to cure jurisdictional issues. Id. at 226-27. But if the pleadings affirmatively negate the existence of jurisdiction, the motion should be granted. Id.

         In addition, we may consider evidence that the parties presented below and must do so when necessary to resolve jurisdictional issues. Bland Indep. Sch. Dist., 34 S.W.3d at 547. When a motion for summary judgment challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 226. If a fact question is presented by the evidence regarding a jurisdictional issue, the trial court is precluded from granting summary judgment on the jurisdictional challenge. Id. at 227-28; Lazarides, 367 S.W.3d at 797. When the relevant evidence is undisputed or fails to raise a ...


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