Hunt Co.
Green Tree Serv

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Court of Appeals of Texas, Fifth District, DallasFeb 2, 2006
No. 05-05-00940-CV (Tex. App. Feb. 2, 2006)

No. 05-05-00940-CV

Opinion Filed February 2, 2006.

On Appeal from the 354th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 68,499.




In this inter locutory appeal, appellant Hunt County contends that the trial judge erred in denying its plea to the jurisdiction. We affirm the order of the trial court.


Appellee Green Tree Servicing L.L.C. held a perfected security interest in each of three manufactured homes that were located in Hunt County, Texas. Pursuant to tax warrants, Hunt County seized the manufactured homes and sold them at a tax sale. The funds were then disbursed to satisfy the outstanding taxes and administrative costs in accordance with the Texas Tax Code. See Tex. Tax Code Ann. § 33.25 (Vernon Supp. 2005). After these disbursements, there were excess proceeds from the sale of each of the three manufactured homes.

The Hunt County Tax Office followed its usual procedure and distributed these excess proceeds among the taxing entities in accordance with their tax rate. According to Hunt County, it implemented this procedure because there is no statutory authority that specifically addresses the disbursement or distribution of excess proceeds from the tax sale of personal property.

Green Tree brought suit against Hunt County for the excess proceeds, alleging that Hunt County retained funds to which Green Tree was entitled as first lien holder. Hunt County filed a plea to the jurisdiction and requested that the trial court dismiss Green Tree's lawsuit based on governmental immunity, lack of standing, and lack of a justiciable issue. Green Tree responded to the plea, asserting its right to recover funds under a constitutional takings claim. To justify the claim, Green Tree referred the trial court to its original complaint and the evidence submitted by the parties.

The trial court denied Hunt County's plea to the jurisdiction, and this appeal ensued. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005) (allowing interlocutory appeal from order denying plea to jurisdiction). Hunt County contends that the trial court erred in denying its plea to the jurisdiction because (1) Hunt County is immune from suit; (2) Green Tree lacks standing to sue; and (3) Green Tree's suit did not present a justiciable issue.


A plea to the jurisdiction is a dilatory plea; its purpose 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). Subject matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In performing this review, we determine if the pleader has alleged facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Tex. Dept. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe these pleadings liberally in favor of the plaintiff and look to the pleader's intent. Id.


In its first issue, Hunt County contends that the trial erred in denying its plea to the jurisdiction because it is immune from suit. We disagree.

The doctrine of governmental immunity prohibits suits against a governmental entity unless there has been a clear and unambiguous constitutional or statutory waiver of that immunity. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997), superceded by statute on other grounds as stated in Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001). It is well settled in Texas that governmental immunity extends to the State's political subdivisions. Sauls v. Montgomery County, 18 S.W.3d 310, 313 (Tex.App.-Beaumont 2000, no pet.). Because Hunt County is a political subdivision of the State, it is immune from suit absent a constitutional or statutory waiver of immunity. See id.

A governmental entity does not have governmental immunity from a valid claim under Article I, section 17 of the Texas Constitution. Texas Workforce Comm'n v. MidFirst Bank, 40 S.W.3d 690, 697 (Tex.App.-Austin 2001, pet. denied). The "takings clause" forbids the governmental entity from taking, damaging, or destroying a person's property for public use without payment of adequate compensation. Tex. Const. art. I, § 17. Violation of this section is established upon proof that (1) the governmental entity intentionally performed certain acts (2) that resulted in a taking of property (3) for public use. MidFirst Bank, 40 S.W.3d at 696.

In reviewing Hunt County's first issue, we must therefore determine whether Green Tree alleged a proper takings claim. After reviewing the record, we conclude that it did. Green Tree alleged (1) that Hunt County conducted the tax sale and distributed the excess proceeds among its taxing authorities pursuant to its self-implemented practice; (2) that, as first lien holder, Green Tree was entitled to claim the excess proceeds that were wrongly disbursed to the taxing authorities; and (3) the tax sale was conducted to satisfy the outstanding taxes due on the manufactured homes . See County of Burleson v. General Electric Capital Corp., 831 S.W.2d 54 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (when the county violated § 33.25 of the tax code by failing to give the lien holder prior notice, the county's tax sale of a mobile home constituted a prohibited constitutional taking). Here, Green Tree alleged that Hunt County violated § 33.25 of the tax code, not by failing to give notice, but by distributing to the taxing authorities funds that were not owed to them. See Tex. Tax Code Ann. § 33.25(f) (Vernon Supp. 2005).

Because Green Tree alleged a valid takings claim, Hunt County was not immune from suit. We overrule Hunt County's first issue.


In issues two and three, Hunt County contends that the trial court erred in denying its plea to the jurisdiction because Green Tree lacks standing to bring the suit and failed to present a justiciable issue. A party has standing to bring suit if (1) it has suffered a distinct injury and (2) there exists a real controversy that will be determined by the judicial determination sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). This second component of standing refers to presentation of a justiciable issue. State Bar v. Gomez, 891 S.W.2d 243, 245-46 (Tex. 1994). The pleadings and the record in this case reveal that Green Tree pled both injury and a real controversy with respect to the disbursement of the excess funds. We overrule Hunt County's remaining two issues.


Having overruled all of Hunt County's issues, we affirm the order of the trial court denying Hunt County's plea to the jurisdiction.

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