REVERSE and RENI)ER; Opinion Filed April 1, 2013.




                                              In The
                                        Qoitrt of Appeah3
                                      li1ricI of     xu at ki11a

                                      No. 05-i 2-01269-CV

                                 CITY OF DALLAS, Appellant

                                                V.

          rIEXAS EZPAWN, LP. DIBIA EZMONEY LOAN SERVICES,
                                                          Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. I)C-12-03373-A

                                MEMORANDUM OPINION
                 l3efore Chief Justice Wright and Justices Lang and Lang-Miers
                                 Opinion by Justice Lang-Miers
       This is an interlocutory appeal from the denial of the City of Dallas’s amended plea to the

jurisdiction. We reverse the trial court’s order and render judgment granting the City’s plea and

dismissing appellee’s lawsuit with prejudice. We issue this memorandum opinion pursuant to

Texas Rule of Appellate Procedure 47.4 because the law to he applied in the case is well settled.

       Texas EZPAWN, L.P. operates a pawn shop in Dallas County. In 2003 it began to offer

short- and long-term loans under the trade name EZMONEY Loan Services. In 2012 the City

told EZPAWN that        its   loan services business constitutes     an   “Alternative   Financial

Establishment” under Dallas City Code section 51A-4.207 and that it must comply with the

provisions of that section. As relevant here, section 51A-4.207 defines Alternative Financial

Establishment as “a car title loan business, check cashing business, or money transfer
 business.    .   ,   An alternative financial establishment does not include an establishment that

 provides tinanciul services that arc accessor to another main use.’’ Dallas, ‘rex., Code ch. 5 I A.

 art. IV,   § 51 A4207( 1) (1987).
            EZPAWN disagreed with the City’s interpretation ol section 51 A4.207 and informally

attempted. but liiled. to persuade the City that EZMONEY is not an Alternative Financial

Establishment. EZPAWN then filed this lawsuit seeking a judicial declaration that its loan

services business is not an Alternative Financial Establishment, or, alternatively, that the

business is accessory to its “main pawn shop use.” The City filed a plea to the jurisdiction based

in part on governmental immunity. EZPAWN amended its petition and alleged that section

37.004 of the Uniform Declaratory Judgments Act waived the City’s immunity because the “suit

seeks the determination of the question of whether the ‘accessory use’ provisions of Dallas City

Code sections 51A4.207 and 51A-4.217 should he construed to encompass the olfermg ol short

term and long term loans to the customers of a pawn shop, incidental to the operation of the

pawnshop jsicj.” The City amended its plea to the jurisdiction to assert that the IJDJA did not

waive its governmental immunity for a suit against the City for the construction or interpretation

of an ordinance and that EZPAWN had not challenged the validity of the ordinance, In response,

EZPAWN alleged that the waiver of immunity applies to suits involving statutory interpretation

as well as invalidation. After a hearing, the trial court denied the City’s amended plea and this

interlocutory appeal followed.

                                           Standard of Review

        Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and is

properly asserted in a plea to the jurisdiction. City cf Dallas v. Turley, 316 S.W.3d 762, 767

(Tex. App.—Dallas 2010, pet. denied). Whether a trial court has subject matter jurisdiction is a

question of law, which we review de novo. Id.


                                                  —2--
          When a plea to the jurisdiction challenges the pleadings, we must determine ii the pleader

 has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. The

 plaintiff hears the burden to allege facts that aflirmatively demonstrate the trial court s

 jurisdiction to hear the case. Id. We construe the allegations in the pleadings liberally in tavor
                                                                                                    of
 the plaintiff and look to the pleaders’ intent. Id. If the pleadings do not contain sufficient facts
                                                                                                      to
 affirmatively demonstrate jurisdiction, but might be cured by amendment, the issue is one of

 pleading sufficiency and the court should allow the plaintil an    opportunity   to amend. Tex. Dep ‘t
of Parks & Wi1dlif’ e. Miranda. 133 S.W 3d 217, 226-27 (Tex. 2004). On the other
                                                                                 hand, if the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may
                                                                                                  be
granted without allowing the plaintiff an opportunity to amend its pleading. Id. at 227.

                                           Applicable Law

         “[S jovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in

which the state or certain governmental units have been sued unless the state consents to
                                                                                          suit.”

hi. at 224. Municipalities are political subdivisions of the state and entitled to governmental

immunity unless it has been waived.    Re’aia Constr.   Corp. v. City of Dallas, 197 S.W.3d 371, 374

(Tex.   2006). The waiver of governmental immunity must he in clear and unambiguous language.

TEx. Gov’T CODE ANN.        3 11.034 (West Supp. 2012).

                                              Analysis

         The issue in this appeal is whether section 37.004 of the UDJA waived the City’s

governmental immunity. The City argues there is no waiver for declaratory judgm
                                                                                ent actions
seeking only to construe the meaning of a statute. It argues that because EZPAWN sought
                                                                                        oniy a
construction or interpretation of the city ordinance and did not seek to invalidate the section,

governmental immunity bars the lawsuit.




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              Sect ion 37.004 states. A person                .    whose rights.   status, or   other legal tehit ions are
      affected by a ...municipal ordinance    .   .   may have determined any question of construction or

      validity arising under the ...ordinance     .   .   .       and obtain a declaration ot rights, status, or other

      legal relations ihereunder.’ TEX. Civ. PRAC. & REM. CODE ANN. 37.004 (West 2008),
                                                                   §
              The Supreme Court ol lexas has stated that the UI)JA “does not enlarge the trial
                                                                                               court’s
      jurisdiction   and “is ‘mere!   a procedural device for deciding, cases already within a courts

  jurisdiction.” Tex, Dep’t of lransp, v. Sefik, 355 S.W.3d 618. 621—22 (Tex. 2011) (quotin
                                                                                            g Tex,
  Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384. 388 (Tex, 2011)), The
                                                                                court has
  recognized that the legislature expressly waived immunity for lawsuits challenging
                                                                                     the validity
 of a municipal ordinance because section 37.006(b) of the IJDJA expressly requires
                                                                                    joinder of a
 municipality in actions challenging the validity of a municipal ordinance. See Id. at 622
                                                                                           & n.3;
 see also City of LI Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009)). But the
                                                                                     court has
 concluded that the legislature through the UDJA has not clearly and unambiguous
                                                                                 ly waived
 governmental immunity for actions in which “the plaintiff seeks a declaration of his
                                                                                      or her rights
 under a statute or other law.” See Sefik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at
                                                                                      373 n.6.
             EZPAWN’s petition does not challenge the validity of the ordinance: it
                                                                                    seeks a
construction of the ordinance. But EZPAWN does not direct us to any provision
                                                                              in the UDJA
that expressly waives the City’s immunity for that claim. It argues that three opinio
                                                                                      ns from the
supreme court have held that governmental immunity is waived for declaratory judgm
                                                                                   ent actions
seeking to construe a statute. We address each in turn.

            The first case that EZPAWN contends supports its argument is Texas Educat
                                                                                      ion Agency
i’.    Leeper, 893 S.W.2d 432 (Tex. 1994). EZPAWN quotes language from that case stating
                                                                                         , “[tjhe
DJA expressly provides that persons may challenge ordinances or statute
                                                                        s, and that
governmental entities must be joined or notified” and “[tjhe Act thus contem
                                                                             plates that

                                                          -4-
 ç’oreriitnental   entities mar   IN’   indeed, must be           omed in    suits   io construe their legislative

 pronouncemnents,” Id. at 446 (emphasis added). But this discussion was in the contex
                                                                                      t of lawsuits
 in which governmental entities must be made a party. See Id. And the only provision
                                                                                     in which a
 municipality must be made a        party   is   in   an action challenging the validity of a statute. See TEX.

 Civ. PRAc. & RiM. CODE ANN. § 37.00I.001 I. Additionally, in Leeier. the parties
                                                                                  did
 challenge the validity of a statute See Leeper. 893 S.W.2d at 337 (class action suit filed
                                                                                            to halt
 State’s enforcement of compulsory attendance law based on “nothing other than the
                                                                                   fact that a
 child was being schooled at home”).

        The second case upon which EZPAWN relies is Texas Natural Resources C’onse
                                                                                   rvation

Commission v. IT-Davy, 74 S. W .3d 849 (Tex. 2002). EZPAWN argues that IT-Do
                                                                             yr concluded
that “the term challenges’ was not limited to challenges to the validity of an ordinance
                                                                                         or statute.
but included challenges to a governmental entity’s construction of the ordinance or statute
                                                                                            .” But
in interpreting Leeper, the IT-I)avv court stated that ‘the DJA expressly allows person
                                                                                        s to
challenge ordinances or statutes. Moreover, the DJA requires challengers to join govern
                                                                                        mental
entities in suits to construe legislative pronouncements                    Id. at 859—60. Because the UDJA

requires governmental entities to be joined only in suits challenging the validity of
                                                                                      an ordinance
or statute, the ITDay case was referring to those types of challenges. See id. Additi
                                                                                      onally, IT
I)avv involved a contract dispute, not a challenge to the validity of the statute
                                                                                  . See id. at 856—57.
       Finally, EZPAWN relies on Texas Lottery                  commission   v. First State Bank of DcQueen,

325 S.W.3d 628 (Tex. 2010). The issue in that case was whether provisions of
                                                                             the Texas
Uniform Commercial Code conflicted with provisions of the Texas Lottery Act
                                                                            and,
consequently, rendered the provisions of the Texas Lottery Act ineffective. Id. at 639.
                                                                                        Although
the court used language like statutory interpretation” and “statutory construction,”
                                                                                     it was




                                                          —5—
undisputed that the lawsuit challenged the validity of the provisions of the Texas Lottery Act
                                                                                               and
did not simply seek an interpretallon of the statute. See’   itt. at 634-35, 610.

        Construing EZPAWN’ s a! legations liberally in its favor, we conclude that they do not

allege facts that, if true, affirmatively demonstrate the trial court’s subject matter jurisdiction.

Indeed, because EZPAWN sought only the interpretation of an ordmance and a declaration that

the ordinance does not apply to its loan services business, we conclude that the allegations

affirmatively negate the trial court’s subject matter jurisdiction. See Turley, 316 S.W,3d at 770—

71.

                                             Conclusion

       We sustain the City’s issues, reverse the trial court’s order, and render judgment

dismissing the petition with prejudice.




12 1269F.P05




                                                —6—
                                 (!!nitrt of Appiu16
                         fift1! Jitrirt of exa Lit aU&u
                                         JUDGMENT

CITY OF DALLAS. Appellant                           On Appeal from the 14th Judicial District
                                                    Court, Dallas County, Texas
No, 05-12-01 269-CV         V.                      Trial Court Cause No. DC-I 2-03373-A.
                                                    Opinion delivered by Justice Lang-Miers.
TEXAS EZPAWN, LP. Dill/A EZMONEY                    Chief Justice Wright and Justice Lang
LOAN SERVICES. Appellee                             participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
REV! RSI I) md IudgmLnt is RI NDEREI) th it

       City of Dallas’s plea to the jurisdiction is GRANTED and appellee Texas
       EZPAWN, L.P. d/b/a EZMONEY Loan Services’s lawsuit is dismissed with
       prejudice,

        It is ORDERED that appellant City of Dallas recover its costs of this appeal from
appellee Texas EZPAWN. LP. dibia EZMONEY Loan Services.


Judgment entered this l day of April, 2013.




                                                                 F       /1(/



                                                  EL,VABTH LANG-?RS
