Court of Appeals of Texas, Third District, Austin
THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-001089, THE HONORABLE AMY CLARK MEACHUM, JUDGE
Chief Justice Rose, Justices Kelly and Smith
L. Kelly, Justice.
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
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).
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 . . . .
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.
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. 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.
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.
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 ...