Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
THE CAMERON COUNTY DISTRICT ATTORNEY IN HIS OFFICIAL CAPACITY REPRESENTING THE STATE OF TEXAS, Appellant,
JLM GAMES AND GGL VENDOR LEASING LLC, Appellees.
appeal from the 357th District Court of Cameron County,
Justices Benavides, Perkes, and Wittig 
GREGORY T. PERKES JUSTICE
JLM Games, Inc. and GGL Vendor Leasing, LLC filed a petition
for injunctive relief and declaratory judgment against
appellant the Cameron County District Attorney, in his
official capacity (the State). The trial court denied the
State's plea to the jurisdiction. In this interlocutory
appeal, the State asserts the trial court erred in denying
its plea to the jurisdiction because: (1) the appellees did
not attack the constitutionality of chapter 47 of the Texas
Penal Code; (2) the appellees lack standing; and (3) the
State has immunity. We reverse and remand to the trial court
with instructions to dismiss for want of jurisdiction.
See Cornyn v. Akin, 50 S.W.3d 735 (Tex. App.-El Paso
2001, no pet.).
engaged in the development and ownership of "amusement
machines," which the State alleges are eight-liner
machines. GGL is engaged in the ownership, leasing,
franchising, and operation of amusement facilities in South
Texas. Appellees executed a lease agreement in Cameron County
in which appellees would operate and utilize their machines.
On or about September 15, 2017, the State informed appellants
that it would close the facility and seize the machines.
November 15, 2017, appellees filed their original petition
for injunctive relief and declaratory judgment alleging that
the State was improperly interpreting § 47.01 of the
penal code and attempting to enforce their misinterpretation
via criminal prosecution and forfeiture. See Tex.
Penal Code Ann. § 47.01. In their pleadings, appellees
sought declaratory judgment to determine whether: (1) the
State is applying chapter 47 in a manner which
"threatens appellees' vested property and
constitutional rights" related to the machines; (2) the
State has "engaged in wrongfully oppressive and
unconstitutional ultra vires interpretation" of chapter
47; (3) the State has "failed to promulgate, or utilize,
any investigative procedures which would allow it to make a
proper determination as to whether the amusement
machine has been properly programmed to operate in
compliance" with chapter 47; (4) the State has engaged
in seizure and forfeiture actions which violate
appellees' constitutional and vested property rights; (5)
the State's refusal to determine the legitimacy of the
machines is "an extreme unconstitutional
application" of chapter 47; (6) the State's actions
constitute official oppression in violation of section 39.03
of the penal code; and (7) the State is in violation of
section 2.01 of the penal code by "pursuing prosecution
and not to see that justice is done." Appellees further
sought injunctive relief to "immediately and temporarily
restrain" the State from conducting its criminal
investigations because it would interfere with appellees'
State filed its original answer, plea to the jurisdiction,
special exceptions, and request for disclosure, asserting
that the trial court lacked jurisdiction because appellees
failed to plead the unconstitutionality of the statute at
issue, appellees lacked standing, the issue is not ripe, and
the State is entitled to governmental immunity and
prosecutorial immunity. The trial court held a hearing on
November 29, 2017 and denied the State's plea to the
jurisdiction shortly thereafter. This interlocutory appeal
Plea to the Jurisdiction
first issue, the State asserts the trial court erred in
denying its plea to the jurisdiction because appellees did
not attack the constitutionality of chapter 47, and there is
no irreparable injury to vested property rights. We agree.
Standard of Review
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." Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). The plea challenges the trial court's subject
matter jurisdiction over a pleaded cause of action. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). Subject matter jurisdiction is a
question of law; therefore, when the determinative facts are
undisputed, we review the trial court's ruling on a plea
to the jurisdiction de novo. Id. The plaintiff has
the burden to allege facts that affirmatively demonstrate the
trial court's jurisdiction to hear a case. Tex.
Dep't of Transp. v. Ramirez, T4 S.W.3d 864, 867
(Tex. 2002). "When deciding a plea to the jurisdiction,
the general rule is the trial court must look to the
allegations in the petition and must accept those allegations
as true. The trial court does not look at the merits of the
case." City of Longview v. Head, 33 S.W.3d 47,
51 (Tex. App.-Tyler 2000, no pet.)
construe the pleadings liberally in favor of the plaintiff
and look to the pleader's intent. Ryder lntegrated
Logistics, lnc. v. Fayette Cty., 453 S.W.3d 922, 927
(Tex. 2015) (per curiam). We cannot sustain a plea if the
pleadings generate a fact question regarding the
jurisdictional issue. Id. at 927. We consider any
evidence submitted by the parties when jurisdictional facts
are relevant. Blue, 34 S.W.3d at 555. "[I]f the
relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issues, the trial court rules
on the plea to the jurisdiction as a matter of law."
Miranda, 133 S.W.3d at 228. "However, in some
cases, disputed evidence of jurisdictional facts that also
implicate the merits of the case may require resolution by
the finder of fact." Id. at 226.
"[o]rdinarily, the validity of a penal statute should be
determined by courts exercising criminal jurisdiction,"
Cornyn, 50 S.W.3d at 738), a civil court may enjoin
enforcement of a penal statute if the complainant alleges
"the statute is unconstitutional and its enforcement
will result in irreparable injury to vested property
rights." State v. Morales, 869 S.W.2d 941, 945
(Tex. 1994) (emphasis added); Sterling v. San Antonio
Police Dept., 94 S.W.3d 790, 794 (Tex. App.-San Antonio
2002, no pet.) (holding that the trial court could not
prevent the district attorney's office from investigating
and prosecuting criminal offenses under the chapter 47 penal
code statute). If either of the factors is not satisfied, the
trial court has no jurisdiction to enjoin the proceeding.
See Morales, 869 S.W.3d at 942; Cornyn, 50
S.W.3d at 738.
sister court's analysis in Sterling is
particularly instructive. Sterling, 94 S.W.3d at
794. The San Antonio Police Department raided Sterling's
facilities and seized his eight-liner machines. Id.
In response, Sterling filed an original petition, application
for temporary restraining order, permanent injunction, and
declaratory judgment, seeking relief on the following
grounds: (1) the use of the eight-liners did not constitute
gambling as defined by chapter 47; (2) the use of the
eight-liners was legal under chapter 43 of the Texas Business
and Commerce Code; and (3) the State's reading of chapter
47 of the penal code renders the statute unconstitutionally
vague as applied. Id. at 793-94. In its plea to the
jurisdiction, the City of San Antonio asserted the trial
court had no jurisdiction to declare a penal statute
unconstitutional or to prevent the district attorney's
office from investigating and prosecuting criminal offenses
under chapter 47 of the penal code. Id. at 793. The
trial court granted the plea to the jurisdiction, and the
Fourth Court of Appeals agreed:
Although Sterling insists his challenge is an attack on the
constitutionality of section 47.01, his argument is nothing
more than a request for an interpretation of section 47.01
and the [Business and Commerce Code], and a declaration that
the use of his machines . . . was not illegal under Penal
Code chapter 47. Because this argument does not implicate the
constitutionality of section 47.01, the first element of
Morales has not been satisfied.
case is analogous. Appellees filed an original petition,
temporary restraining order, temporary injunction, permanent
injunction and requested a declaratory judgment. Appellees
requested the trial court to enjoin the State from
"interpreting, applying, and enforcing" chapter 47
of the penal code in an unconstitutional manner. However,
"mere allegations that a statute is unconstitutional do
not entitle a party to an adjudication of the constitutional
validity of a statute," and appellees themselves concede
their pleading falls short of such a claim. State v.
Wofford, 34 S.W.3d 671, 680 (Tex. App.-Austin 2000, no
pet.). Appellees' arguments are but a request for an
alternative interpretation of chapter 47 and a declaration
that use of the eight-liners complies with chapter 47-issues
that, alone, do not proffer jurisdiction to the trial court
and can be addressed in a criminal proceeding. See Potter
Cty. Attorney's Office v. Stars & Stripes
Sweepstakes, L.L.C., 121 S.W.3d 460, 469 (Tex.
App.-Amarillo 2003, no pet.) (quoting Letson v.
Barnes, 979 S.W.2d 414, 418 (Tex. App.-Amarillo 1998,
pet. denied) (using a Morales analysis to hold that
"a trial court lack[s] jurisdiction to issue a temporary
injunction prohibiting law enforcement officials from
pursuing allegedly improper interpretations of gambling
statutes by 'seizing, confiscating, forfeiting, or
initiating forfeiture proceedings against' the
plaintiffs' eight-liner machines.")); see In re
Cornyn, 27 S.W.3d 327, 337 (Tex. App.- Houston [1st
Dist.] 2000, no pet.) (vacating a temporary restraining order
and reversing the trial court's denial of the State's
plea to its jurisdiction because the restraining order
interfered with the "investigation of crime and the
enforcement of penal laws" under Morales);
Cornyn, 50 S.W.3d at 738 (reversing the trial
court's denial of the State's plea to the
jurisdiction pursuant to a Morales analysis in a
suit challenging the seizure of eight-liners and seeking an
injunction restoring possession of them to the plaintiffs);
Warren v. Aldridge, 992 S.W.2d 689, 693 (Tex.
App.-Houston [14th Dist.] 1999, no pet.) (holding that the
trial court had no jurisdiction to declare that use of
eight-liners does not constitute criminal activity where
plaintiff sought an interpretation of chapter 47); see
also Letson, 979 S.W.2d at 418 (holding that the trial
court lacked jurisdiction to enter an injunction, interpret
section 47.01, and declare the plaintiff's rights
thereunder when plaintiff failed to implicate the
unconstitutionality of section 47.01 pursuant to
Morales); Letson v. Vanaman, No.
07-98-0263, 1998 WL 767093, at *3 (Tex. App.-Amarillo 1998)
(mem. op.) (reversing the trial court's grant of a
temporary injunction from pursuing the forfeiture of
eight-liners because plaintiffs failed to plead the first
prong of Morales). Though appellees asserted
numerous allegations in their pleading, we find none
implicating the constitutionality of section
47.01. Therefore, the trial court is without
jurisdiction to consider the merits of appellees'
complaint. See Sterling, 94 S.W.3d at 795.
assuming, without deciding, that appellees had raised a
constitutional challenge, they have not satisfied the second
requirement of Morales because appellees have
"no constitutionally protected property right to lease
gambling devices," and "[t]he harm inherent in
prosecution for an offense does not constitute irreparable
harm as contemplated by Morales."
Sterling, 94 S.W.3d at 794; City of
Longview, 33 S.W.3d at 53; see also City of Corpus
Christi v. Maldonado, 398 S.W.3d 266, 270 (Tex.
App.-Corpus Christi-Edinburg 2011, no pet.) ("Property
owners do not have a constitutionally protected, vested right
to use property in any certain way, without
legal precedent is clear: because the statute's
constitutionality is not in question, appellee's vested
property rights are not in jeopardy and the applicability and
validity of the criminal statute in this case can be resolved
in a criminal proceeding, a court of equity is without right
to intervene. See Morales, 869 S.W.2d at 942;
Sterling, 94 S.W.3d at 794; see also Passel v.
Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex.
1969) ("A person may continue his activities until he is
arrested and then procure his release by showing that the law
we conclude that the trial court has no jurisdiction over
appellees' suit. See City of Longview, 33 S.W.3d
at 53 ("To the extent [Plaintiff] has requested relief
in the form of a declaration that his machines are not
illegal gambling devices, such relief is inappropriate . . .
."). Accordingly, we reverse the trial court's order
denying the State's plea to the jurisdiction and remand
this cause to the trial court with instructions to dismiss
for want of jurisdiction. See Cornyn, 50 S.W.3d at
735; City of Longview, 33 S.W.3d at 54. We sustain
the State's first issue.