Marina Landing II, Joint Venture v. State of Texas, County of Bexar, Northside Independent School District and Land Resources Corporation--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00837-CV
MARINA LANDING II JOINT VENTURE,
Appellant
v.
STATE of Texas, County of Bexar, and Northside Independent School District,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-03376
Honorable Michael P. Peden, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: January 14, 2004

JOINT MOTION FOR RULING GRANTED; VACATED AND REMANDED

In this accelerated appeal from a bill of review contesting a real estate tax sale, appellant Marina Landing II Joint Venture (Marina Landing) challenged the trial court's order granting a plea to the jurisdiction filed by the State of Texas, the County of Bexar, and Northside Independent School District (the Taxing Authorities).

In a joint motion filed December 19, 2003, all parties advised the court that it is undisputed Marina Landing was denied due process because it did not receive proper notice of the tax foreclosure trial and sale. The Taxing Authorities concede they are not entitled to sovereign immunity against Marina Landing's due process constitutional claim. We agree that a governmental entity is not entitled to assert sovereign immunity as a defense when a party alleges it has been deprived of property without due process. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995); Nueces County v. Hoff, 105 S.W.3d 208, 211 (Tex. App.-Corpus Christi 2003, pet. filed); Martin v. Tex. Board of Crim. Justice, 60 S.W.3d 226, 230 (Tex. App.-Corpus Christi 2001, pet. for mandamus filed); City of San Antonio v. Cortes, 5 S.W.3d 708, 711 (Tex. App.-San Antonio 1999, pet. denied). (1) Because it is undisputed that Marina Landing was denied due process, the trial court erred in granting the plea to the jurisdiction. (2)

The parties have also requested a mandate remanding the case to the trial court for further proceedings on the bill of review. We interpret this request as a motion for early issuance of the mandate. See Tex. R. App. P. 18.1(c). The motion is granted.

Accordingly, we grant the parties' joint motion requesting ruling. The trial court's order granting the Taxing Authorities' plea to the jurisdiction is vacated, and the cause is remanded to the trial court for further proceedings. Costs of the appeal are adjudged against the party who incurred them. The clerk of this court is directed to issue the mandate immediately.

Paul W. Green, Justice

1. Overruled on other grounds by Texas Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999).

2. The merits of Marina Landing's defense to foreclosure is not at issue at this time, only the question of whether a new trial is warranted.