Reversed and Remanded and Opinion filed September 25, 2012.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-11-00383-CV

      GREGORY R. MATTOX AND BARBARA WILKERSON, Appellants

                                         V.

   COUNTY COMMISSIONERS’ COURT, GRIMES COUNTY, BETTY
  SHIFLETT, GRIMES COUNTY JUDGE, JOHN BERTLING, COUNTY
COMMISSIONER PCT 1, AND PAM FINKE, COUNTY COMMISSIONER PCT
                          4, Appellees


                      On Appeal from the 506th District Court
                             Grimes County, Texas
                          Trial Court Cause No. 30,919


                                  OPINION
      After a county commissioners court denied an application filed by two landowners
under section 232.008 of the Texas Local Government Code, the landowners sought a
writ of mandamus from a district court commanding the county commissioners court to
grant that application. The landowners filed a summary-judgment motion asserting that
they were entitled to the mandamus relief as a matter of law. The county commissioners
court and other defendants filed a summary-judgment motion seeking, among other
things, a remand to the county commissioners court.           The trial court denied the
landowners’ summary-judgment motion and granted summary judgment ordering that the
case be remanded to the county commissioners court. The landowners appeal the trial
court’s partial grant of the defendants’ motion and denial of the landowners’ motion. We
conclude that the trial court did not err in denying the landowners’ motion but that the
trial court erred in ordering a remand to the county commissioners court. Accordingly,
we reverse in part and remand to the trial court for further proceedings in accordance
with this opinion.

                     I. FACTUAL AND PROCEDURAL BACKGROUND
       In May 2005, appellants/plaintiffs Gregory R. Mattox and Barbara Wilkerson
(collectively the “Mattox Parties”) purchased lots 35 and 36 in the Hill Forest Manor
Subdivision (hereinafter, the “Subdivision”). These lots are in the southwest corner of
the Subdivision, and lot 36 borders undivided acreage to the west that is currently owned
by Clifford and Eleanor Jackson (collectively, the “Jacksons”). A dedicated road, known
as Hill Forest Lane, runs along the southern border of the Subdivision. According to the
plat for the Subdivision, the western end of Hill Forest Lane stops at the Jacksons’
property and forms the southern border of lots 35 and 36. There is no road on the
Jacksons’ property leading up to this corner of their land that the plat reflects borders on
Hill Forest Lane.

       The Mattox Parties assert that when they purchased their land, most of what the
plat shows as the part of Hill Forest Lane south of their property was not being
maintained as a road. The Mattox Parties claim that they believed that this area was part
of the land that they had purchased and was not part of Hill Forest Lane. After the
Mattox Parties cleaned out the weeds, brush, and debris in this area, they learned that
some residents in the Subdivision contended that this land was part of Hill Forest Lane,
which is a county road.

       According to the Mattox Parties’ pleading in the district court below, the Mattox
Parties first filed an application with appellee/defendant Grimes County Commissioners’
                                             2
Court (“Commissioners Court”) asking the court to abandon or vacate that part of Hill
Forest Lane, but the court denied the application in July 2006. See Tex. Transp. Code
Ann. § 251.051 (West 2012) (providing that the commissioners court of a county has the
authority to close, abandon, or vacate a public road).

       In April 2007, the Mattox Parties filed an “APPLICATION TO CANCEL
DEDICATION” with the Commissioners Court. In this application, the Mattox Parties
asked the court to “cancel the dedication of that portion of HILL FOREST LANE shown
on the plat of HILL FOREST MANOR SUBDIVISION . . . beginning at the west side of
our property and extending 134 feet toward the east and ending at the place where
GRIMES COUNTY currently begins maintaining HILL FOREST LANE, which is the
west terminating end of HILL FOREST LANE.” The Mattox Parties based this second
application on section 232.008 of the Texas Local Government Code.1 See Tex. Loc.
Gov’t Code Ann. § 232.008 (West 2005). On June 11, 2007, the Commissioners Court
considered the Mattox Parties’ second application. After hearing argument from counsel
for the Mattox Parties and counsel for the Jacksons and other proceedings, the
Commissioners Court denied the application by a 3-2 vote.

       The Mattox Parties then filed a petition for writ of mandamus in district court
against the Commissioners Court, Grimes County Judge Betty Shiflett, John Bertling,
Grimes County Commissioner for Precinct 1, and Pam Finke, Grimes County
Commissioner for Precinct 4 (collectively, the “Court Parties”). The Mattox Parties
asserted that the Commissioners Court abused its discretion by denying rather than
granting the Mattox Parties’ section 232.008 application. On this basis, the Mattox
Parties sought a writ of mandamus compelling the Commissioners Court to grant the
Mattox Parties’ section 232.008 application (“Application”).

       The Mattox Parties filed a motion for summary judgment asserting they were
entitled to the relief they sought as a matter of law. The Court Parties filed a motion for
1
 Unless otherwise stated, all statutory references in this opinion are to the Texas Local Government
Code.


                                                 3
summary judgment asserting that, as a matter of law, the Commissioners Court had
discretion to deny the application under subsection (h) of section 232.008 (“Subsection
(h)”). The district court denied the former motion and granted the latter motion. The
Mattox Parties appealed both rulings to this court.

       On appeal, this court noted that, under the law existing at that time, Subsection (h)
applied only to land subdivided or plats filed on or after September 1, 1999. See Mattox
v. Grimes County Commissioners Court, 305 S.W.3d 375, 383 n.7 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied). See also Act of May 5, 1999, 76th Leg., R.S., ch. 129, §
10, 1999 Tex. Gen. Laws 574, 578. (providing that Subsection (h) applied only to land
subdividied or plats filed on or after September 1, 1999). In this first appeal, no party
argued that section 232.008 did not provide for the relief sought in the Application, and
no party argued that Subsection (h) did not apply because the land for the Subdivision
was subdivided and the plat was filed before September 1, 1999. This court did not
address these issues. See id. at 383–85 & n.7. In the first appeal, this court held that,
under the summary-judgment ground asserted in the Court Parties’ motion, these parties
had the burden of proving as a matter of law that the factual predicate stated in
Subsection (h) applied so that, as a matter of law, granting the Application was
discretionary. See id. at 381–82. See also Act of May 5, 1999, 76th Leg., R.S., ch. 129,
§ 7, 1999 Tex. Gen. Laws 574, 577 (providing that “[t]he commissioners court may deny
a cancellation under this section if the commissioners court determines the cancellation
will prevent the proposed interconnection of infrastructure to pending or existing
development”) (formerly codified at TEX. LOC. GOV’T CODE ANN. § 232.008(h)).
Concluding that the summary-judgment evidence did not prove this factual predicate as a
matter of law, this court held that the trial court erred in granting the Court Parties’
summary-judgment motion. See id. at 383–85. Accordingly, this court reversed the trial
court’s judgment and remanded for further proceedings consistent with the court’s
opinion. See id. at 387.
       On remand, the Mattox Parties and the Court Parties both filed second motions for


                                             4
summary judgment. In their summary-judgment motion, the Mattox Parties asserted the
following: (1) under the law-of-the-case doctrine the only issue remaining for the trial
court on remand was whether Subsection (h) applies to the case under review; (2)
Subsection (h) does not apply to the case under review because the Subdivision was not
created nor was the plat for the Subdivision filed after September 1, 1999, and therefore
the Mattox Parties are entitled to mandamus relief as a matter of law; and (3) in the
alternative, even if Subsection (h) applied, the Mattox Parties’ summary-judgment
evidence conclusively proves that the factual predicate in Subsection (h) cannot be
satisfied based upon a Grimes County Road Map known as the “258 Map.”

       In their summary-judgment motion, the Court Parties asserted the following
grounds: (1) Subsection (h) applied to the Commissioners Court’s consideration of the
Application; (2) if the trial court were to conclude that Subsection (h) did not apply to the
Commissioners Court’s consideration of the Application, the trial court should remand
the case under review to the Commissioners Court to consider the Application without
the use of Subsection (h) because, according to the Court Parties, Subsection (h) was the
sole basis for the denial of the Application; and (3) denial of the Application was
warranted and the Mattox Parties are not entitled to mandamus relief as a matter of law
because in the Application the Mattox Parties sought relief not provided under section
232.008.
       The trial court denied the Mattox Parties’ motion. As to the Court Parties’ motion,
the trial court stated in its order that it would not address the applicability of Subsection
(h). The trial court granted the Court Parties’ motion “[t]o the extent that [the Court
Parties] requested [the trial court] to remand the matter to the Grimes County
Commissioners Court for further action, considering the entire applicable law.” The trial
court denied the remainder of the Court Parties’ summary-judgment motion and ordered
“that this matter is remanded to the Grimes County Commissioners Court for further
action.” The Mattox Parties appealed the trial court’s final summary judgment; the Court
Parties did not appeal the denial in part of their summary-judgment motion.


                                             5
       After the Mattox Parties filed this appeal and effective June 17, 2011, the Texas
Legislature amended Subsection (h) so that it now applies to an application under section
232.008 “[r]egardless of the date land is subdivided or a plat is filed for a subdivision.”
See Act of May 25, 2011, 82nd Leg., R.S., ch. 829, § 1, 2011 Tex. Sess. Law Serv. 2100,
2100 (codified at Tex. Loc. Gov’t Code Ann. § 232.008(h) (West 2012)). This amended
version of Subsection (h) applies “to an application for cancellation of all or part of a
subdivision filed on or after [June 17, 2011] or before [June 17, 2011] if the approval of
the application filed before [June 17, 2011] is not final.’’ Act of May 25, 2011, 82nd
Leg., R.S., ch. 829, § 2, 2011 Tex. Sess. Law Serv. 2100, 2100.

                                  II. ISSUES PRESENTED
       In two appellate issues, the Mattox Parties assert that (1) the trial court erred when
it partially granted the Court Parties’ summary-judgment motion, and (2) the trial court
erred when it denied the Mattox Parties’ summary-judgment motion.

                               III. STANDARD OF REVIEW
       In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of law,
the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to
defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d
22, 23 (Tex. 2000). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-
minded jurors could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007).
We can affirm the trial court’s summary judgment based only upon a ground expressly
stated in the summary-judgment motion. See Stiles v. Resolution Trust. Corp., 867
S.W.2d 24, 26 (Tex. 1993).

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                                           IV. ANALYSIS
A.     Should this court consider the trial court’s letter discussing its summary-
       judgment rulings and the reasons for these rulings?
       In their appellate briefing the parties cite to a letter that the trial court sent to the
parties discussing the trial court’s summary-judgment rulings and the reasons for these
rulings. Before reviewing the trial court’s summary-judgment rulings, we address, as a
threshold matter, whether this court should consider the letter in conducting this review.
The trial court’s rulings are contained in the summary-judgment orders signed by the trial
court. Findings of fact and conclusions of law have no place in a summary-judgment
proceeding.     See Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994) (per
curiam). A letter is not the proper method for a trial court to apprise the parties of the
grounds or reasons for the trial court’s summary-judgment rulings. See RRR Farms, Ltd.
v. American Horse Protection Ass’n, 957 S.W.2d 121, 126 (Tex. App.—Houston [14th
Dist.] 1997, pet. denied); Shannon v. Texas General Indem. Co., 889 S.W.2d 662, 664
(Tex. App.—Houston [14th Dist.] 1994, no writ). Our precedent instructs that appellate
courts should not consider such letters in reviewing the trial court’s summary judgment.
See RRR Farms, Ltd., 957 S.W.2d at 126; Shannon, 889 S.W.2d at 664.                    For the
foregoing reasons, in reviewing the trial court’s summary judgment we do not consider
the trial court’s letter to the parties.

B.     Did the trial court err in remanding the case under review to the
       Commissioners Court for further proceedings?
       Under their first issue, the Mattox Parties argue that the trial court erred in
remanding the case under review to the Commissioners Court for further proceedings. In
the only ground or request for relief involving a remand to the Commissioners Court, the
Court Parties argued that, if the trial court were to conclude that Subsection (h) did not
apply to the Commissioners Court’s consideration of the Application, then the trial court
should remand the case under review to the Commissioners Court to consider the
Application without the use of Subsection (h) because, according to the Court Parties,
Subsection (h) was the sole basis for the denial of the Application. But, in its summary-


                                                7
judgment order, the trial court expressly declined to rule on the applicability of
Subsection (h). After declining to address whether Subsection (h) applied, the trial court
granted the Court Parties’ summary-judgment motion “[t]o the extent that [the Court
Parties] requested this Court to remand the matter to the [Commissioners Court] for
further action, considering the entire applicable law.” In their motion, the Court Parties
never requested the trial court to remand the matter to the Commissioners Court for
further action, considering the entire applicable law. Instead, the Court Parties requested
a remand only if the trial court concluded that Subsection (h) did not apply, and this
conditional request was for a remand to consider the Application under the parts of
section 232.008 other than Subsection (h), rather than under the entire applicable law.
We conclude that the trial court erred by granting relief that no party requested in any
summary-judgment motion and that the relief granted by the trial court was not supported
by any summary-judgment ground. See Stiles v. Resolution Trust. Corp., 867 S.W.2d 24,
26 (Tex. 1993) (stating that appellate court can affirm trial court’s summary judgment
based only upon a ground expressly stated in the summary-judgment motion); LaGoye v.
Victoria Wood Condominium Ass’n, 112 S.W.3d 777, 786 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (holding trial court cannot grant relief on summary judgment that
was not requested by a movant for summary judgment).

       In addition, we conclude that a remand to the Commissioners Court is not
available in an original mandamus proceeding filed in the district court against county
commissioners and the commissioners court of a county. No statute provides for an
appeal from the order of the Commissioners Court denying the Application. But, the
district court has original mandamus jurisdiction over the Court Parties. See Tex. Const.
art. V, § 8; Tex. Gov’t Code Ann. § 24.020 (West 2012); Vondy v. Commissioners Court
of Uvalde County, Texas, 620 S.W.2d 104, 109 (Tex. 1981). The Mattox Parties invoked
the mandamus jurisdiction of the district court, seeking a writ of mandamus in which the
district court would compel the Commissioners Court to grant the Mattox Parties’
Application.   If, under applicable law, the Mattox Parties plead and prove their

                                            8
entitlement to this remedy, they are entitled to mandamus relief. If not, they are not
entitled to mandamus relief. The Mattox Parties did not appeal the Commissioners Court
order denying the Application to the district court. The parties have not cited, and
research has not revealed, any case providing that a district court, in exercising its
mandamus jurisdiction over a commissioners court, may remand the matter to the
commissioners court for further proceedings that effectively constitute a reconsideration
of an application that the commissioners court already has denied. The district court may
not substitute its discretion for that of the commissioners court. See Vondy, 620 S.W.2d
at 109. In the case under review, the Commissioners Court has no mandatory duty to
reconsider the Application that it denied in June 2007. By remanding the matter to the
Commissioners Court, the district court enforced no mandatory duty, and it intruded upon
the discretion of the Commissioners Court. See Ector County v. Stringer, 843 S.W.2d
477, 479 (Tex. 1992) (“Once the commissioners court exercises its discretion, the district
court may review the order for abuse of discretion, but it cannot substitute its discretion
for that of the commissioners court.”).
       For these reasons, we conclude the trial court erred in remanding the case under
review to the Commissioners Court for further proceedings, and we sustain the first issue
to the extent the Mattox Parties argue that the trial court erred in ordering a remand to the
Commissioners Court.2
C.     In the Application, did the Mattox Parties seek relief not afforded under
       section 232.008?
       In their live pleading, the Mattox Parties assert that the Commissioners Court
abused its discretion by denying rather than granting the Application and that the Mattox
Parties are entitled to a writ of mandamus compelling the Commissioners Court to grant
the Mattox Parties’ Application. In their summary-judgment motion, the Mattox Parties
asserted that they are entitled to this mandamus relief as a matter of law. The trial court
denied this motion, and, in their second issue, the Mattox Parties argue that the trial court

2
 Concluding that the trial court erred in granting summary judgment for the reasons stated above, we
need not and do not address the other arguments asserted by the Mattox Parties under their first issue.

                                                  9
should have granted this motion. To be entitled to summary judgment, the Mattox Parties
had to conclusively prove in their traditional motion that the facts of the case and
controlling law gave the Commissioners Court no discretion to deny the Application and
permitted the Commissioners Court to make only one decision, to grant the Application.
See Wortham v. Walker, 128 S.W.2d 1138, 1151 (Tex. 1939) (holding that to prove
entitlement to mandamus relief against public official, relator had burden to prove clear
legal right to mandamus relief commanding the official to perform the act in question); In
re Univ. Interscholastic League, 20 S.W.3d 690, 692 (Tex. 2000) (per curiam) (stating
that relator in mandamus proceeding must establish that the facts and law permit the
respondent to make but one decision); In re Stanford Group Co., 273 S.W.3d 807, 813
(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (holding that (1) because a
respondent in a mandamus proceeding cannot abuse its discretion in reaching a correct
result for the wrong reasons, courts will uphold the respondent’s order on any ground
supported by the record and (2) the relator must establish that the facts of the case and
controlling law permitted the respondent to make but one decision). In determining
whether the Mattox Parties satisfied this burden, we examine section 232.008, entitled
“Cancellation of Subdivision,” which contains the following language:

      (b) A person owning real property in this state that has been subdivided into
      lots and blocks or into small subdivisions may apply to the commissioners
      court of the county in which the property is located for permission to cancel
      all or part of the subdivision, including a dedicated easement or roadway, to
      reestablish the property as acreage tracts as it existed before the
      subdivision. If, on the application, it is shown that the cancellation of all or
      part of the subdivision does not interfere with the established rights of any
      purchaser who owns any part of the subdivision, or it is shown that the
      purchaser agrees to the cancellation, the commissioners court by order shall
      authorize the owner of the subdivision to file an instrument canceling the
      subdivision in whole or in part. The instrument must describe the
      subdivision or the part of it that is canceled. The court shall enter the order
      in its minutes. After the cancellation instrument is filed and recorded in the
      deed records of the county, the county tax assessor-collector shall assess the
      property as if it had never been subdivided.
      ...


                                            10
        (d) If delinquent taxes are owed on the subdivided tract for any preceding
        year, and if the application to cancel the subdivision is granted as provided
        by this section, the owner of the tract may pay the delinquent taxes on an
        acreage basis as if the tract had not been subdivided. For the purpose of
        assessing the tract for a preceding year, the county tax assessor-collector
        shall back assess the tract on an acreage basis.
        (e) On application for cancellation of a subdivision or any phase or
        identifiable part of a subdivision, including a dedicated easement or
        roadway, by the owners of 75 percent of the property included in the
        subdivision, phase, or identifiable part, the commissioners court by order
        shall authorize the cancellation in the manner and after notice and a hearing
        as provided by Subsections (b) and (c). However, if the owners of at least
        10 percent of the property affected by the proposed cancellation file written
        objections to the cancellation with the court, the grant of an order of
        cancellation is at the discretion of the court.
        ...
        (g) A person who appears before the commissioners court to protest the
        cancellation of all or part of a subdivision may maintain an action for
        damages against the person applying for the cancellation and may recover
        as damages an amount not to exceed the amount of the person=s original
        purchase price for property in the canceled subdivision or part of the
        subdivision. The person must bring the action within one year after the
        date of the entry of the commissioners court=s order granting the
        cancellation.
        (h) The commissioners court may deny a cancellation under this section if
        the commissioners court determines the cancellation will prevent the
        proposed interconnection of infrastructure to pending or existing
        development.3
Tex. Loc. Gov’t Code Ann. § 232.008 (West 2005).

        This court reviews de novo the district court’s interpretation of applicable statutes.
See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655B56 (Tex. 1989). In construing a
statute, our objective is to determine and give effect to the legislature’s intent. See Nat=l
Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, this court
must ascertain that intent from the language the legislature used in the statute and not
look to extraneous matters for an intent the statute does not state. Id. If the meaning of

3
 We quote the pre-2011 version of Subsection (h), but we presume, without deciding, that this version of
Subsection (h) applied to the Subdivision and to the Application.

                                                  11
the statutory language is unambiguous, this court adopts the interpretation supported by
the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952
S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or strained construction;
instead, we must yield to the plain sense of the words the legislature chose. See id.

         Based on the unambiguous language of section 232.008, a person owning real
property that has been subdivided into lots and blocks or into small subdivisions may
apply to the commissioners court of the county in which the property is located for
permission to cancel all or part of the subdivision, and the applicant may include in this
proposed cancellation, the cancellation of a dedicated easement or roadway. See Tex.
Loc. Gov’t Code Ann. § 232.008(b). In this statute, however, the legislature states that
the purpose of any requested cancellation must be “to reestablish the property [that is the
subject of the cancellation] as acreage tracts as it existed before the subdivision.” Id. If
the cancellation is granted, the commissioners court shall authorize “the owner of the
subdivision to file an instrument canceling the subdivision in whole or in part” and
describing “the subdivision or the part of it that is canceled.” Id. After this instrument is
filed and recorded, “the county tax assessor-collector shall assess the property as if it had
never been subdivided.” Id. Section 232.008 also states that, if cancellation is granted,
then the county tax assessor-collector shall “back assess the tract” on an acreage basis.
Id. § 232.008(d).

         While an applicant could seek to reestablish as acreage tracts some of the lots in a
subdivision as well as part of a dedicated easement or roadway, cancellation of only part
of a dedicated easement or roadway would not reestablish any property as acreage tracts
as it existed before the subdivision. See id. Under the unambiguous language of the
statute, in section 232.008 the Texas Legislature does not authorize the commissioners
court to cancel only a dedicated easement or roadway or a portion thereof. This statute
speaks to the cancellation of a subdivision or part thereof but not to the cancellation of
only an easement or roadway (or some portion of an easement or roadway). 4 See id. We

4
    Other statutes give commissioners courts the authority to close, abandon, vacate, or alter public roads.
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hold that, in the Application, the Mattox Parties sought relief not afforded under section
232.008. Accordingly, the Mattox Parties did not conclusively prove in their traditional
summary-judgment motion that the facts of the case and controlling law gave the
Commissioners Court no discretion to deny the Application and only permitted the
Commissioners Court to grant the Application.5 See Wortham, 128 S.W.2d at 1151; In re
Univ. Interscholastic League, 20 S.W.3d at 692; In re Stanford Group Co., 273 S.W.3d at
813. Thus, the trial court did not err in denying the Mattox Parties’ summary-judgment
motion.6

D.      Under the law of the case and the scope of remand, was the trial court limited
        to determining whether Subsection (h) applied and, if so, conducting a trial as
        to whether the factual predicate in Subsection (h) was satisfied?
        On appeal, the Mattox Parties argue that under the law of the case and the scope of
remand following the first appeal in the case under review, the trial court was limited to
determining whether Subsection (h) applied. If not, according to the Mattox Parties, they
would be entitled to judgment as a matter of law. If so, then, according to the Mattox
Parties, the trial court would have to determine whether the factual predicate in
Subsection (h) was satisfied. The Mattox Parties assert that, under law of the case and
the limited scope of remand, the trial court was not able to properly consider any other
issues. If this argument were correct, then the trial court would not be able to consider
See Tex. Transp. Code Ann. § 251.051 (Vernon 2012). Indeed, the Mattox Parties unsuccessfully sought
such relief from the Commissioners Court in July 2006. The Mattox Parties have not sought mandamus
relief regarding the Commissioners Court’s denial of this relief.
5
  We need not and do not address the Mattox Parties’ arguments that (1) Subsection (h) does not apply to
the case under review because the Subdivision was not created nor was the plat for the Subdivision filed
after September 1, 1999; and (2) even if Subsection (h) applied, the Mattox Parties’ summary-judgment
evidence conclusively proves that the factual predicate in Subsection (h) cannot be satisfied based upon
the 258 Map. Presuming that these arguments are correct, the Mattox Parties still did not prove their
entitlement to judgment as a matter of law for the reasons stated in Section IV. C. of this opinion.
6
  The Court Parties assert that the 2011 amendment to Subsection (h) applies retroactively to the
Commissioners Court’s consideration of the Application. See Act of May 25, 2011, 82nd Leg., R.S., ch.
829, §§ 1, 2 2011 Tex. Sess. Law Serv. 2100, 2100. The Mattox Parties argue that such a retroactive
application would violate Article I, section 16 of the Texas Constitution. See Tex. Const. art. I, § 16.
Presuming, without deciding, that the 2011 amendment applies retroactively and does not violate the
Texas Constitution, the amended version of Subsection (h) does not alter this court’s analysis in Section
IV. C. of this opinion.

                                                   13
the argument advanced on remand by the Court Parties, which we discussed in the
previous section. Therefore, we address this argument.

       In the first appeal, this court held that, under the summary-judgment ground
asserted in the Court Parties’ motion, these parties had the burden of proving as a matter
of law that the factual predicate stated in Subsection (h) applied so that, as a matter of
law, granting the Application was discretionary.      See Mattox, 305 S.W.3d at 381–82.
Concluding that the summary-judgment evidence did not prove this factual predicate as a
matter of law, this court held that the trial court erred in granting the Court Parties’
summary-judgment motion. See id. at 383–85. Accordingly, this court reversed the trial
court’s judgment and remanded for further proceedings consistent with the court’s
opinion. See id. at 387.    In the first appeal, no party argued that section 232.008 does
not provide for the relief sought in the Application, and no party argued that Subsection
(h) did not apply because the land for the Subdivision was subdivided and the plat was
filed before September 1, 1999. This court did not decide these issues in the first appeal.
See id. at 383–85 & n.7. On remand, the Mattox Parties argued that Subsection (h) did
not apply as a matter of law because the land for the Subdivision was subdivided and the
plat was filed before September 1, 1999. The Court Parties argued to the contrary, and
they also asserted that the Commissioners Court had discretion to deny the Application
because section 232.008 does not provide for the relief sought in the Application. On
remand in the second set of summary-judgment motions, the issues of law and fact were
not substantially the same as those in the first set of summary-judgment motions. See
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Therefore, the law-of-the-case
doctrine does not apply. See id. In the first appeal, no party raised and this court did not
decide whether section 232.008 provides for the relief sought in the Application.
Because the court did not decide this issue in the first appeal, the law-of-the-case doctrine
did not prevent the Court Parties from raising this issue on remand, and this doctrine does
not preclude this court from considering this issue on appeal in analyzing the Mattox
Parties’ second issue. See id.; Stobaugh v. Norwegian Cruise Line Ltd., 105 S.W.3d 302,


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307, n.2 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Bass v. Walker, 99 S.W.3d
877, 884 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). See also Four Brothers
Boat Works, Inc v. Tesoro Petroleum Cos., 217 S.W.3d 653, 661–62 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (holding that law-of-the-case doctrine applies to
holdings in prior appeal not to obiter dicta stated in prior appeal).

       As to the scope of remand, in this court’s mandate, judgment, and opinion in the
first appeal, this court consistently stated that it reversed the trial court’s summary
judgment in favor of the Court Parties and remanded to the trial court for further
proceedings consistent with the court’s opinion.             If an appellate court reverses and
remands and uses language clearly limiting the issues on remand, then the scope of
remand is so limited. See Hudson, 711 S.W.2d at 630. But, in the mandate, judgment,
and opinion in the first appeal, this court did not limit the scope of remand through
special instructions. Therefore, this court’s reversal and remand for further proceedings
was a general remand, and the parties were free to raise new issues and arguments on
remand. See Simulis, L.L.C. v. General Electric Capital Corp., —S.W. —,—, No. 14-09-
01055-CV, 2011 WL 505334, at *1–5 (Tex. App.—Houston [14th Dist.] Feb. 15, 2011,
pet. denied) (holding that remand was general such that new claims could be added on
remand, even though in first appeal court stated that it was reversing the part of the
judgment in which the trial court granted summary judgment on the quantum-meruit
claim and remanding for further proceedings consistent with the court’s opinion).

       We conclude that neither the law-of-the-case doctrine nor the scope of remand
following the first appeal preclude the consideration of new issues and arguments. Thus,
the Court Parties were permitted to argue on remand that the Commissioners Court had
discretion to deny the Application because section 232.008 does not provide for the relief
sought in the Application.7 Likewise, we may properly consider this issue in analyzing

7
  The Mattox Parties also contend that the Court Parties waived their right to assert this argument. The
Mattox Parties cite no cases in support of this contention. They cite no evidence showing an intentional
relinquishment by the Court Parties of a known right in this regard. We conclude this waiver argument
lacks merit.

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this appeal. See Hudson, 711 S.W.2d at 630; Simulis, L.L.C., 2011 WL 505334, at *1–5;
Stobaugh, 105 S.W.3d at 307, n.2; Bass, 99 S.W.3d at 884.

      For the reasons stated above, we overrule the Mattox Parties’ second issue.

                                    V. CONCLUSION
      The trial court erred in granting the Court Parties’ summary-judgment motion in
part and in ordering a remand to the Commissioners Court. In the Application, the
Mattox Parties sought relief not afforded under section 232.008.        Accordingly, the
Mattox Parties did not conclusively prove their entitlement to mandamus relief in their
traditional summary-judgment motion. Thus, the trial court did not err in denying that
motion. Neither the law-of-the-case doctrine nor the scope of remand following the first
appeal precluded the Court Parties from arguing on remand that the Commissioners Court
had discretion to deny the Application because section 232.008 does not provide for the
relief sought in the Application. Likewise, this court may properly consider this issue in
analyzing this appeal. Accordingly, we reverse the trial court’s judgment to the extent
the trial court ordered a remand to the Commissioners Court, and we remand for further
proceedings consistent with this opinion.




                                            /s/    Kem Thompson Frost
                                                   Justice



Panel consists of Justices Frost, Seymore, and Jamison.




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