Establishment of Religion Devotion Christian Ministries Non Denomination Community of Jesus Christ, et al. v. The County of Atascosa, et al.--Appeal from 81st Judicial District Court of Atascosa County

MEMORANDUM OPINION

No. 04-03-00932-CV

ESTABLISHMENT OF RELIGION DEVOTION CHRISTIAN MINISTRIES NON DENOMINATION COMMUNITY OF JESUS CHRIST, Pastor: Servando Avelar Alvarez, Minister, Thomas Gonzales Votion, Ambassador of Jesus Christ, De Jure Citizen s of the Kingdom of God, Rev. Robert Gonzales Votion,

Appellants

v.

THE COUNTY OF ATASCOSA, TEXAS 78026, Atascosa County Judge, Deborah Hurber, Atascosa County Attorney, Thomas Franklin, Atascosa County Justice of the Peace, Frank Leal, Atascosa County Com. 1, 2, 3, 4, Atascosa County Chief Appraisal Tommy Watson, Atascosa County App. Review Board, Melinda Eustice, Atascosa County Tax Assessor Collector, Barbara Schorsch, Atascosa County, Pleasanton ISD, Board President, Roger Castillo, Tax Collector, Maureen Burris, Tax Collecting Agents at Law Attorneys, Linebarger Heard Goggan Blair Graham Pena & Sampson LLP,

Appellees

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 02-09-0645-CVA

Honorable Stella Saxon, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 26, 2005

AFFIRMED

This is an appeal of the trial court s granting of defendants pleas to the jurisdiction and summary judgment. Finding no error, we affirm.

Discussion

Robert Votion, appearing pro se and on behalf of all the plaintiffs, brought this lawsuit against defendants in the Atascosa County District Court. He named numerous ad valorem taxing authorities and individuals as defendants as well as the law firm of Linebarger, Heard, Goggan, Blair, Graham, Pena & Sampson LLP. In the petition, plaintiffs appear to allege damages in connection with the assessment of property taxes. Plaintiffs prayed for the court to award money damages in federal reserve notes. All defendants, with the exception of the Linebarger law firm, filed pleas to the jurisdiction in the trial court. The trial court held a hearing and granted all pleas. The Linebarger law firm filed a motion for summary judgment which was granted. Plaintiffs appeal the trial court s judgment.

Appellants brief does not state concisely issues or points presented for review as required by Texas Rule of Appellate Procedure 38.1(e). In construing the brief liberally, however, we discern two issues: (1) the taxing authorities are not protected by sovereign immunity, and (2) appellants were denied a jury trial. Appellants make reference to the summary judgment granted in favor of the Linebarger firm, but make no arguments relating to the summary judgment that we can discern other than complaining of the denial of a jury trial. Again, construing the brief liberally, we will review the trial court s granting of the Linebarger s summary judgment motion. //

A. Sovereign Immunity

With the exception of the Linebarger law firm, all defendants are governmental taxing authorities. Sovereign immunity protects the State, its agencies, political subdivisions, and its officials from lawsuits for damages, absent legislative consent to sue. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Such a legislative consent to sue is the Texas Tort Claims Act, which provides for a limited waiver of immunity in certain circumstances. See generally Tex. Civ. Prac. & Rem. Code Ann. 101.001-.109 (Vernon 1997 & Supp. 2004-05). The Act, however, specifically preserves immunity for claims arising in connection with the assessment or collection of taxes by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. 101.055 (Vernon 1997); Driskill v. State, 787 S.W.2d 369, 370 (Tex. 1990). Not only do appellants claims not fall within the Tort Claims Act s limited waiver of immunity, they are specifically excluded from the Act s limited waiver of immunity. Thus, the trial court did not err in granting the taxing authorities pleas to the jurisdiction. We overrule this issue on appeal.

B. Trial by Jury

The taxing authorities properly brought pleas to the jurisdiction to raise the sovereign immunity issue. Tex. Dep t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). Whether the trial court has subject matter jurisdiction is a question of law. Tex. Dep t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). And, whether undisputed evidence of jurisdictional facts establishes a trial court s jurisdiction is a question of law. Id. However, in some cases, disputed evidence involving jurisdiction that also implicate the merits of the case may require resolution by the finder of fact. Id. In that case, the trial court reviews the evidence to determine if a fact issue exists. Id. at 227. If the evidence creates a fact question on the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. But, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

In this case, there appears to be no disputed facts regarding the jurisdictional issue. Although the trial court held a hearing, no testimony or evidence was presented. The trial court made the jurisdictional determination based on the pleadings and, therefore, as a matter of law. Thus, appellants were not entitled to have the jurisdictional issue decided by a jury. We overrule this issue on appeal.

C. Summary Judgment in favor of the Linebarger Law Firm

In filing its motion for summary judgment, the Linebarger firm identified five allegations contained within the appellants pleading that could conceivably relate to the Linebarger firm. Those were: (1) religious discrimination, (2) placing a lien on appellants property to secure payment of ad valorem taxes, (3) causing personal injury and death to Concepcion H.M. Orosco, (4) refusing to honor a promise to allow a jury trial before the justice of the peace, and (5) failing to allow appellants an administrative hearing before the school board. The Linebarger firm filed a motion for summary judgment as to these five issues, attaching as evidence the affidavits of school district attorneys Kent M. Rider and Douglas Steven Bird. Also attached as evidence were three other documents supporting the Linebarger firm s motion for summary judgment. Appellants responded, but failed to include any evidence in opposition to the motion for summary judgment. We have reviewed the Linebarger firm s motion for summary judgment and supporting affidavits and evidence and conclude that the trial judge properly granted summary judgment. Appellants failed to raise a fact issue and, therefore, they were not entitled to a jury trial.

Conclusion

Having overruled all issues, we affirm the trial court s judgment.

Karen Angelini, Justice