                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                                 NO. 2-08-118-CV


LARRY YORK D/B/A                                                        APPELLANT
YORK TANK TRUCKS

                                        V.

STATE OF TEXAS AND
WISE COUNTY, TEXAS                                                      APPELLEES

                                    ------------

          FROM THE COUNTY COURT AT LAW OF WISE COUNTY

                                    ------------

                        OPINION ON REHEARING

                                    ------------

      After considering the motions for rehearing filed by appellant and both

appellees, we deny all four motions, but we withdraw our prior opinion and

judgment of June      11, 2009      and      substitute   the   following   to   make

nonsubstantive clarifications.

      Appellant Larry York d/b/a York Tank Trucks (York) appeals from the trial

court’s order dismissing York’s suit against appellees State of Texas and Wise
County, Texas for want of jurisdiction. In seven issues, York challenges the

trial court’s conclusions of law supporting its dismissal orders, as well as

appellees’ other grounds for dismissal in their pleas to the jurisdiction. We

affirm in part and reverse and remand in part.

                                 Background Facts

      On October 29, 2006, Trooper Tim Godwin, a Texas Department of

Public Safety (DPS) officer, seized and impounded a tank trailer bearing the

license plate number W41 503 because the vehicle identification number (VIN)

had been removed. Upon checking the license plate number, DPS determined

that the registered owner of the trailer was listed as McNutt Co. in Snyder,

Texas. Instead of contacting McNutt Co., however, Sergeant David Martinez

contacted York. York Vacuum was listed on the registration receipt, which

expired in October 2006, as the “renewal recipient,” and the vehicle location

was shown as an address in Bridgeport.1 Also, “York” was painted on the side

of the trailer. York explained that he owned the trailer but that the title had not

been transferred.      He stated that the VIN plates had been removed and

presumably destroyed while the trailer was being repaired.2 Sergeant Martinez



      1
          … York’s business is located in nearby Paradise.
      2
       … According to York, the trailer was sandblasted and then repainted
several months before the stop. During that process, the painters removed the

                                         2
asked a DPS Motor Vehicle Theft Analyst to search for similar trailers in Texas.

The analyst located five, only one of which was currently registered. According

to Sergeant Martinez,

      Without the VIN, I had no way of determining whether the trailer
      matched an MD trailer currently registered in Texas or whether the
      trailer was stolen and brought in from out of state. No further
      action was taken because Mr. York indicated that all parts with the
      VIN attached had been destroyed.

However, there were no reports of a stolen trailer similar to the one seized.

      Although York requested that the trailer be returned to him, on February

16, 2007, the State, through Sergeant Martinez, petitioned a Wise County

magistrate to dispose of the property as stolen under chapter 47 of the Texas

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 47.01–12

(Vernon 2006 and Supp. 2009); Tex. Transp. Code Ann. § 501.158 (Vernon

2007) (providing that vehicle with removed, altered, or obliterated VIN may be

treated as stolen for purposes of custody and disposition).

      On March 29, 2007, York and Trooper Martinez appeared in Justice of

the Peace Court No. 2 in Wise County. According to York, he “presented a

substantial amount of evidence showing [his] ownership in and right to




VIN plates and forgot to reattach them. York did not know the VIN plates were
missing and no one could find them after the seizure. The fifth wheel plate,
which also had the VIN stamped on it, had been removed and discarded.

                                       3
possession of the tank trailer,” including his “testimony, several photographs

of the trailer with the other vehicles” he owned, “the billing records for having

the trailer converted to a tank trailer, repair records on the trailer, records

showing [he] insured the vehicle, inspection records from [DPS], and

Registration Renewal Receipts from the State.” Also according to York, no

evidence was presented that the trailer was actually lost or stolen. Even so,

the justice court awarded the trailer to the State and ordered that it be used or

disposed of by the Wise County Sheriff’s Department at its discretion. 3 York

failed to timely appeal although he attempted to do so.4 See Tex. Code Crim.

Proc. Ann. art. 47.12(c) (requiring appellant to give oral notice of appeal

immediately after decision and to post bond); Phillips v. State, 77 S.W.3d 465,

466–67 (Tex. App.—Houston [1st Dist.] 2002, no pet.); White v. State, 930

S.W.2d 673, 676 (Tex. App.—Waco 1996, no writ). The trailer has remained

locked and fenced in since that time, and the markings for York’s business have

been removed.




      3
      … The justice court’s order states that “[j]udgment is ruled to the Court
upon good and sufficient evidence that Plaintiff [the State] is entitled to recover
judgment.”
      4
       … York later filed a bill of review in the justice court, which was denied.
He did not appeal the denial.

                                        4
      On August 22, 2007, York sued appellees. He alleged that when DPS

seized the trailer, and when the justice court awarded it to appellees, the trailer

was part of York’s bankruptcy estate under a January 14, 2003 filing that had

not yet been discharged. York sought a declaratory judgment that the justice

court’s order was void because it was rendered in violation of the bankruptcy

code’s automatic stay. See 11 U.S.C.A. § 362(a)(3) (West 2004). He also

raised a takings claim under article I, section 17 of the Texas constitution,

seeking damages.5     Tex. Const. art. I, § 17.      In their answers, appellees

asserted sovereign immunity from suit and liability. In addition, they both filed

pleas to the jurisdiction on the same grounds; they also alleged that York had

not proven that the trailer was part of the bankruptcy estate, that only the

bankruptcy court could determine whether it was included in the estate, and

that even if it was, the order was voidable, not void. They further alleged that

because the trailer was stolen, the justice court’s action fell within the exercise

of police or regulatory power exception to the automatic bankruptcy stay. See

11 U.S.C.A. § 362(b)(4). York filed traditional and no-evidence motions for

summary judgment on both appellees’ immunity defenses and jurisdictional

allegations.


      5
     … York initially pled a claim for conversion, but he dropped it in his first
amended petition.

                                        5
      The trial court initially granted the State’s plea to the jurisdiction. York

then filed a motion for reconsideration, in which he asked to present new

evidence showing that McNutt Co. had sold his father the trailer during the late

1980s or early 1990s and that York had bought the trailer, along with the other

assets of his father’s business, in 1993. He financed the sale through a loan

from Roscoe State Bank, which took a lien on the business’s assets, including

the trailer. York never obtained a certificate of title to the trailer in his name

because his father originally planned to scrap the trailer for parts; because his

father never did so, the trailer sat unused for several years. York decided to put

the trailer into service in 1999; he obtained a new license plate, began having

the trailer inspected by DPS, and started registering it with the State. The trial

court granted York’s motion for reconsideration.

      York filed a second amended petition, in which he alleged the new facts

showing his ownership of the trailer and explaining why the VIN plates were

missing.   He also alleged a new declaratory judgment claim:             that the

proceeding in the justice court violated his substantive and procedural due

process rights because chapter 47 does not require a prompt hearing once

property is seized as stolen; that chapter 47 does not provide for a fair and

meaningful hearing—as evidenced by the fact that during a five-year period

preceding York’s suit, the justice court had awarded Wise County property

                                        6
seized for lack of a VIN in “virtually every case,” except one involving a Wise

County Commissioner; and that the statutory deadlines for perfecting an appeal

are “wholly unreasonable and violate the due process rights of [York] and

others involved in such hearings.”

      Appellees responded by filing supplements to their pleas to the

jurisdiction. In those responses, the State contended that only the bankruptcy

court in which York’s case was pending could determine whether the trailer

was a part of the bankruptcy estate, that York’s suit should be against the

justice court rather than appellees, that the seizure of the trailer under section

501.158 of the transportation code was not a taking under article I, section 17

of the Texas constitution, and that they are immune from the newly pled due

process claims. The State presented evidence that York attempted to file an

undated notice of appeal, which has the following handwritten notation, “4-9-

07 No Bond required per Judge. Respondent is not in possession of property.”

The notation is signed “X Judge Johnson.” Also attached to the supplemental

response is a copy of a petition for bill of review that York filed in the Justice

Court Precinct No. 2 of Wise County, contending that he failed to meet the oral

notice of appeal requirement due to accident or official mistake because he

appeared without counsel and no record was made. The justice court denied

the bill of review, concluding that York did not have a meritorious defense.

                                        7
      York subsequently filed affidavits from Tyson Schiflett, the owner of the

painting business; Brian Studdard, a senior Vice President for Roscoe State

Bank, which claimed a lien on the trailer; and Lyndia McNutt. Schiflett averred

that his painters removed the VIN plates from the trailer and “failed to rivet”

them back onto the trailer when they were finished. Although he searched for

the VIN plates after York contacted him, he was unable to locate them.

According to Schiflett, they had “probably been lost or discarded.”

      Studdard averred that the trailer was accepted by the bank as collateral

for a loan to York and that the bank currently held a lien on the trailer. The

bank was never notified of the proceedings in the justice of the peace court.

Studdard also averred that York had delivered a true and correct copy of title

to the trailer in his name. Attached to his affidavit was a copy of a Texas

certificate of title to the trailer listing (on the back in the “Assignment of Title”

space) the owner as McNutt Co., and signed by David McNutt and Larry Wayne

York. Also attached is a recorded UCC-1 financing statement showing the

bank’s secured interest in the trailer.

      McNutt averred in her affidavit that her late husband, Harold McNutt, sold

the trailer to York’s father and that David McNutt subsequently signed over title

on behalf of McNutt Co. Attached to her affidavit is the same certificate of title

with the assignment from McNutt Co. to Larry Wayne York. She averred that

                                          8
David McNutt was authorized to sign the assignment and that his signature on

the certificate is genuine.

      After a hearing, the trial court sent the parties a letter attaching the

following ruling and asking for an order to be prepared:

             After hearing further argument of counsel, and reading the
      briefs submitted by the parties, the Court is of the opinion that it
      lacks jurisdiction to hear this matter, both as to the State of Texas,
      and the County of Wise. If the Court takes everything as true on
      behalf of [York], the Court is left with the following:

            No direct appeal was made from the evidentiary hearing
      before the Justice of the Peace Court. Therefore, the matter
      became final and appealable as a matter of law.

             The Declaratory Judgment[s] Act’s purpose is to allow a
      procedural device for deciding cases already within the court’s
      jurisdiction, not create a substantive cause of action. Since this
      court does not have jurisdiction over a case that became final and
      unappealable at the Justice Court level, this Court has no ability to
      hear a Declaratory Judgment case as a matter of law. A contrary
      opinion of the law would amount to creating a new cause of action
      in collaterally attacking any level of court decisions that have
      become procedurally final.

            The Court is of the opinion that the Justice Court’s ruling is
      voidable, not void, and the Bankruptcy Court is the only proper
      forum for deciding whether or not the public policy exception is
      applicable to the bankruptcy stay regarding the trailer.

            Therefore, the Court grants both Defendants’ Pleas to the
      Jurisdiction of the Court. The Court does not reach the issues of
      whether or not a taking occurred, or whether or not sovereign
      immunity applies in this case. [Emphasis added.]




                                        9
Thereafter, the trial court signed two orders granting each appellee’s plea to the

jurisdiction; the trial court’s orders each state that, granted in conjunction with

the other order, they “dismiss[] all claims and parties to this suit and . . .

operate as a final judgment in this action.” [Emphasis added.]

      Upon York’s request, the trial court filed findings of fact and conclusions

of law. York appeals from the trial court’s final orders dismissing the case for

want of jurisdiction.

                 Standard of Review—Plea to the Jurisdiction

      We review the trial court’s ruling on a plea to the jurisdiction under a de

novo standard of review.      Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 225–26, 228 (Tex. 2004); Tex. Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); City of Carrollton v.

Singer, 232 S.W.3d 790, 794 (Tex. App.—Fort Worth 2007, pet. denied).

Whether a pleader has alleged facts that affirmatively demonstrate a trial

court’s subject matter jurisdiction, or whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction, is a question of law.

Miranda, 133 S.W.3d at 226; City of Carrollton, 232 S.W.3d at 794.

      When a plea to the jurisdiction challenges the pleadings, we determine if

the pleader has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus.

                                        10
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the

pleadings liberally in favor of the plaintiff and look to the pleader’s intent.

Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus., 852 S.W.2d at 446.

      But if a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary

to resolve the jurisdictional issues raised, as the trial court is required to do.

Miranda, 133 S.W.3d at 227; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.

2000); Tex. Dep’t of Pub. Safety v. Andrews, 155 S.W.3d 351, 355 (Tex.

App.—Fort Worth 2004, pet. denied). If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to

the jurisdiction, and the fact issue will be resolved by the factfinder. Miranda,

133 S.W.3d at 227–28; Andrews, 155 S.W.3d at 355. 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.

Miranda, 133 S.W.3d at 228; Andrews, 155 S.W.3d at 355. This standard

generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d

at 228; see Tex. R. Civ. P. 166a(c).

       Correctness of Conclusions of Law Upon Which Ruling is Based

      In his first five issues, York challenges the trial court’s conclusions of law.

We may review conclusions of law to determine their correctness based upon

                                        11
the facts. Citizens Nat’l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex.

App.—Fort Worth 2006, no pet.); Dominey v. Unknown Heirs & Legal

Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth

2005, no pet.).

      The trial court concluded as follows:

      1.    [The] Chapter 47 evidentiary hearing has become final and
            unappealable.

      2.    The County Court at Law has no direct jurisdiction over the
            Chapter 47 evidentiary hearing, because there was no appeal
            perfected by [York].

      3.    The Declaratory Judgment[s] Act does not confer jurisdiction
            upon the County Court at Law in order to allow a collateral
            attack upon the final judgment of the Precinct 2 Justice
            Court.

      4.    The proper forum for deciding whether or not an item of
            property is included in an existing bankruptcy case is the
            Bankruptcy Court where said case is filed.

      5.    The Precinct 2 Justice Court’s judgment is voidable only (not
            void), subject to a ruling of the Bankruptcy Court that (1) the
            property in question is part of the bankruptcy estate, and (2)
            that the police power exception does not apply.

      Finality of Justice Court’s Judgment

      York contends in his second issue that the trial court’s first conclusion is

erroneous because the justice court’s decision cannot be final and unappealable




                                       12
if it is void, as York claims.6 But a void judgment may nevertheless still be final

in the sense that a direct appeal is no longer available once the appellate filing

deadlines have passed. See Newsom v. Ballinger ISD, 213 S.W.3d 375, 380

(Tex. App.—Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 237–38

(Tex. App.—San Antonio 2004, orig. proceeding). Accordingly, we overrule

York’s second issue challenging the trial court’s first conclusion of law.

      Proper Court to Determine Applicability of Stay

      York’s first and fifth issues challenge the trial court’s fourth and fifth

conclusions of law: that the proper forum for deciding if the trailer is part of

the bankruptcy estate is the bankruptcy court in which the case was filed and

that the justice court’s decision is voidable only, subject to the bankruptcy

court’s determination that the property is part of the bankruptcy estate and that

the police power exception to the automatic stay is inapplicable.

      The filing of a bankruptcy petition triggers the automatic stay under the

bankruptcy code.     11 U.S.C.A. § 362(a)(1); In re Sensitive Care, Inc., 28

S.W.3d 35, 38–39 (Tex. App.—Fort Worth 2000, orig. proceeding).                The

automatic stay deprives state courts of jurisdiction over proceedings against the


      6
        … None of the trial court’s findings and conclusions provides support for
its dismissal of York’s takings claim. Accordingly, we will review the propriety
of the dismissal of that claim in our analysis of appellees’ other challenges to
the trial court’s jurisdiction.

                                        13
debtor, and any action taken against the debtor while the stay is in place is void

and without legal effect. In re Sensitive Care, 28 S.W.3d at 39; see Kalb v.

Feuerstein, 308 U.S. 433, 439, 60 S. Ct. 343, 346 (1940); Howell v.

Thompson, 839 S.W.2d 92, 92 (Tex. 1992). This is true regardless of whether

a party or the state court learns of the stay before taking action against the

debtor. In re Sensitive Care, 28 S.W.3d at 39.

      Bankruptcy courts do not have exclusive jurisdiction to determine whether

and to what property the automatic stay applies; a state court in which an

action is pending may determine whether a stay divests it of jurisdiction. In re

McDaniel, 149 S.W.3d 860, 861 (Tex. App.—Waco 2004, order); Bamburg v.

Townsend, 35 S.W.3d 85, 88 (Tex. App.—Texarkana 2000, no pet.); see, e.g.,

Lockyer v. Mirant Corp., 398 F.3d 1098, 1106 (9th Cir. 2005); Chao v. Hosp.

Staffing Servs., 270 F.3d 374, 382–85 (6th Cir. 2001); cf. Houston Mun.

Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (“Courts

always have jurisdiction to determine their own jurisdiction.”). If the state court

decides that the stay does not apply, however, it runs the risk of the

bankruptcy court later disagreeing; if the bankruptcy court later determines that

the stay did apply, the state or district court’s judgment is void ab initio.

Lockyer, 398 F.3d at 1106; Chao, 270 F.3d at 382–85. But if the bankruptcy

court decides that the state or district court correctly determined that the stay

                                        14
did not apply, the state court proceedings are not void. Lockyer, 398 F.3d at

1106; Chao, 270 F.3d at 382–85. In other words, the state court’s holding is

not entitled to preclusive effect in the bankruptcy court if later challenged in

that forum. Lockyer, 398 F.3d at 1106.

      Appellees did not urge forum non conveniens grounds here, i.e., that the

bankruptcy court was a more appropriate forum to determine applicability of the

stay. Instead, they argued that the county court at law was completely devoid

of jurisdiction to determine the stay’s applicability. Thus, the trial court’s fourth

conclusion is erroneous. Likewise, a trial court’s judgment taken in violation of

the automatic stay—as alleged here—is void, not voidable; just because a state

court’s determination of the applicability of a stay is subject to later validation

or invalidation by the bankruptcy court does not turn a void action into a

voidable one.     See In re De la Garza, 159 S.W.3d 119, 120–21 (Tex.

App.—Corpus Christi 2004, orig. proceeding); Paine v. Sealy, 956 S.W.2d 803,

805–07 (Tex. App.—Houston [14th Dist.] 1997, no pet.); Chunn v. Chunn,

929 S.W.2d 490, 493 (Tex. App.—Houston [1st Dist.] 1996, order). That the

allegation of voidness is on collateral rather than direct attack is of no import

to this aspect of the trial court’s judgment. Accordingly, we conclude and hold

that the trial court’s fourth and fifth conclusions of law are erroneous. We

sustain York’s first and fifth issues.

                                         15
      Jurisdiction Under Uniform Declaratory Judgments Act

      York contends in his third and fourth issues that the trial court’s third

conclusion—that the trial court has no jurisdiction under the Uniform

Declaratory Judgments Act (DJA) to hear a collateral attack upon the justice

court’s decision—is erroneous.

      The DJA provides that it is to “be liberally construed and administered”

to fulfill its purpose “to settle and to afford relief from uncertainty and

insecurity with respect to rights, status, and other legal relations.” Tex. Civ.

Prac. & Rem. Code Ann. § 37.002(b) (Vernon 2008). A court of record may,

“within its jurisdiction[,] . . . declare rights, status, and other legal relations

whether or not further relief is or could be claimed.” Id. § 37.003(a). The

subject matter of a declaratory judgment action includes a “declaration of

rights, status, or other legal relations” of any question of construction or

validity arising under a statute when the person’s “rights, status, or other legal

relations are affected by [the] statute.” Id. § 37.004(a).

      Whether a court has subject matter jurisdiction in a declaratory judgment

action depends upon whether the underlying controversy is within the

constitutional and statutory jurisdiction of that court. Monk v. Pomberg, 263

S.W.3d 199, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on

reh’g); Nelson v. Regions Mortgage, Inc., 170 S.W.3d 858, 863 (Tex.

                                        16
App.—Dallas 2005, no pet.). It is well settled that the DJA is not a grant of

jurisdiction; rather, it is a procedural device for deciding cases already within a

court’s jurisdiction. Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996);

City of Houston v. Buttitta, 274 S.W.3d 850, 853 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (op. on reh’g).

      Here, York claims that the justice court’s order awarding the property to

the State for the benefit of the Wise County Sheriff’s Office is void because it

was in violation of the bankruptcy stay and, therefore, the justice court was

without jurisdiction to enter it. Judgments—even final ones—that are void for

jurisdictional defects are subject to collateral attack. Middleton v. Murff, 689

S.W.2d 212, 213 (Tex. 1985); Nguyen v. Intertex, Inc., 93 S.W.3d 288,

294–95 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Zarate v. Sun

Operating, Ltd., 40 S.W.3d 617, 620–21 (Tex. App.—San Antonio 2001, pet.

denied). But the ability to collaterally attack a judgment is limited by the long-

standing and well-settled rule that we must presume the validity of the

judgment under attack and, thus, extrinsic evidence may not be used to

establish a lack of jurisdiction. See In re A.G.G., 267 S.W.3d 165, 169 (Tex.

App.—San Antonio 2008, pet. denied) (holding that extrinsic evidence of

applicability of automatic stay could not be considered because divorce decree,

on its face, recited that trial court had jurisdiction of matter and no evidence in

                                        17
record of divorce proceeding affirmatively showed that automatic stay deprived

trial court of jurisdiction); Toles v. Toles, 113 S.W.3d 899, 914 (Tex.

App.—Dallas 2003, no pet.); Davis v. Boone, 786 S.W.2d 85, 87 n.3 (Tex.

App.—San Antonio 1990, no writ).7 But see S. County Mut. Ins. Co. v. Powell,

736 S.W.2d 745, 749–50 (Tex. App.—Houston [14th Dist.] 1987, no writ)

(holding, in dictum, that extrinsic evidence should be permissible to show

applicability of automatic stay in collateral attack against judgment). To prevail

on a collateral attack, the challenger must show that the judgment is void on

its face. In re A.G.G., 267 S.W.3d at 169; Sotelo v. Scherr, 242 S.W.3d 823,

830 (Tex. App.—El Paso 2007, no pet.).

      Here, nothing in the parts of the justice court record presented as

evidence shows that the justice court did not have jurisdiction, that York had

filed for bankruptcy, or that the automatic stay affected the proceeding. To

determine these matters, extrinsic evidence—such as that introduced in the

county court at law proceedings—must be considered. Accordingly, the trial

court did not have jurisdiction to consider a collateral attack on the justice

court’s judgment because it is presumed regular and there is no nonextrinsic




      7
      … See also, e.g., Treadway v. Eastburn, 57 Tex. 209, 1882 WL 9490
(1881); Switzer v. Smith, 300 S.W. 31, 33 (Tex. Comm’n App. 1927, judgm’t
adopted).

                                       18
evidence showing that it is void due to the applicability of the automatic stay.8

See In re A.G.G., 267 S.W.3d at 169. We conclude and hold that the trial

court could not hear the dispute independently of the DJA;9 thus, it could not

hear the dispute within the procedural framework of the DJA. See Chenault,

914 S.W.2d at 141; Buttitta, 274 S.W.3d at 853.

      In addition, York may not collaterally attack the justice court’s judgment

based on the alleged unconstitutionality of article 47.01a. A challenge to the

constitutionality of a criminal statute must be brought in the trial court or it is

forfeited. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); see

White, 930 S.W.2d at 675 (holding that action under 47.01a is a criminal case

because trial court functions in its capacity as a criminal magistrate). That a

criminal proceeding is based upon an unconstitutional statute does not render

that proceeding void if the trial court otherwise has jurisdiction. See Karenev,



      8
        … On rehearing, York contends that the application of this rule frustrates
the purpose of the automatic stay. But the rule is based upon a competing and
equally valid principle, that of the need for “absolute verity” of judgments that
appear regular and are no longer subject to direct attack. See Treadway, 1882
WL 9490, at *4–5. York could have raised the pending bankruptcy proceeding
in the justice court, thereby making the judgment subject to collateral attack,
but he failed to do so. In addition, extrinsic evidence is available to challenge
a void judgment in a direct attack, such as in a bill of review.
      9
         … See Bland ISD v. Blue, 34 S.W.3d 547, 553–55 (Tex. 2000) (holding
that sometimes court must look at facts involving merits of claim to determine
its jurisdiction to hear claim).

                                        19
281 S.W.3d at 432. The only part of York’s constitutional complaint that

appears to implicate the justice court’s subject matter jurisdiction is his

assertion that the value of the property disposed of could exceed the court’s

monetary jurisdiction in civil cases. But that complaint is not implicated here

because the justice court was acting in its capacity as a criminal magistrate.

See Tex. Code Crim. Proc. Ann. art. 47.01a; White, 930 S.W.2d at 675.

      And even if the statute is more properly characterized as civil in nature,

if a civil court renders judgment on a claim that is within its subject matter

jurisdiction, but a relevant statute is determined to be unconstitutional on its

face, the judgment is merely rendered erroneous or voidable, not void. In re

R.B., 225 S.W.3d 798, 802 (Tex. App.—Fort Worth 2007, no pet.); see Mass.

v. Davis, 140 Tex. 398, 168 S.W.2d 216, 220 (1942), cert. denied, 320 U.S.

210 (1943); Kaye v. Harris County Mun. Util. Dist., 866 S.W.2d 791, 795–96

(Tex. App.—Houston [14th Dist.] 1993, no writ); Dallas Mkt. Ctr. Dev. Co. v.

Beran & Shelmire, 824 S.W.2d 218, 222–23 (Tex. App.—Dallas 1992, writ

denied).   Thus, we conclude and hold that the trial court did not have

jurisdiction to hear a collateral attack on the constitutionality of article 47.01a

in an action under the DJA. Because the trial court did not have jurisdiction to

consider York’s declaratory judgment complaints under the DJA, we conclude




                                        20
and hold that the trial court’s third conclusion of law is not erroneous. We

overrule York’s third and fourth issues.

      We are left, then, with York’s takings claim, which is an entirely new

cause of action pled in the alternative and which presumes the finality of the

justice court’s judgment and seeks damages because of that judgment’s effect.

Unlike York’s declaratory judgment claim, his takings claim is not a collateral

attack and therefore not subject to the extrinsic evidence rule discussed above.

      None of the trial court’s findings and conclusions support its dismissal of

York’s takings claim, and the trial court specifically declined to rule on that

claim. Thus, we must determine whether appellees’ other asserted reasons for

defeating jurisdiction apply.

           Sovereign and Governmental Immunity - Takings Claim

      Appellees contended in the trial court that they are entitled to sovereign

and governmental immunity 10 from suit; the trial court did not rule on these




      10
        … Sovereign immunity refers to the State’s immunity while
governmental immunity refers to the immunity of political subdivisions of the
State, including counties, cities, and school districts. Wichita Falls State Hosp.
v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Sanders v. City of Grapevine,
218 S.W.3d 772, 776 n.1 (Tex. App.—Fort Worth 2007, pets. denied). For
ease of reference, we will refer to both as sovereign immunity.

                                       21
jurisdictional challenges. 11   But because immunity implicates subject matter

jurisdiction, it may be reviewed on appeal regardless of whether the trial court

expressly ruled on that issue. See Miranda, 133 S.W.3d at 225–26; City of

Carrollton, 232 S.W.3d at 794. Therefore, we address appellees’ contentions

that they are immune from suit as to York’s pled takings claim.

      Appellees contended in the trial court that their immunity had not been

waived under the Texas Tort Claims Act. But York nonsuited his only tort

claim, and he contends that appellees’ immunity as to his takings claim is

waived by the takings clause of the Texas constitution rather than the Tort

Claims Act. Accordingly, we will consider whether article I, section 17 waives

appellees’ immunity to York’s claim.

      Appellees also contend that York’s pleadings belie the existence of a valid

takings claim because he claimed that they are illegally holding his trailer; thus,

their actions could not constitute a valid, intentional taking of property for

public use. In other words, appellees claim that a takings claim lies only for

property legally obtained by a governmental entity.




      11
       … Appellees also contended that they are immune from liability, which,
as an affirmative defense, is not a jurisdictional matter. See Miranda, 133
S.W.3d at 224; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999); City of Carrollton, 232 S.W.3d at 795.

                                        22
      The Texas constitution provides that “[n]o person’s property shall be

taken, damaged or destroyed for or applied to public use without adequate

compensation being made, unless by the consent of such person.” Tex. Const.

art. I, § 17.   By its plain terms, this takings provision does not limit the

government’s power to take private property for public use but instead requires

that a taking be compensated; physical possession is, categorically, a taking for

which compensation is constitutionally mandated. Sheffield Dev. Co. v. City

of Glenn Heights, 140 S.W.3d 660, 669–70 (Tex. 2004).

      Article I, section 17 waives governmental immunity for actions seeking

compensation under that provision. Gen. Servs. Comm’n v. Little-Tex Insulation

Co., 39 S.W.3d 591, 598 (Tex. 2001); Tex. Bay Cherry Hill, L.P. v. City of Fort

Worth, 257 S.W.3d 379, 395 (Tex. App.—Fort Worth 2008, no pet.).               To

establish a takings claim, a claimant must prove that (1) a governmental entity

intentionally performed certain acts, (2) that resulted in a “taking” of property,

(3) for public use. Little-Tex Insulation Co., 39 S.W.3d at 598; Tex. Bay Cherry

Hill, 257 S.W.3d at 395.

      When a plaintiff fails to allege facts that would support a valid takings

claim, governmental immunity applies, and the trial court should grant a plea to

the jurisdiction. Little-Tex Insulation Co., 39 S.W.3d at 600; Tex. Bay Cherry

Hill, 257 S.W.3d at 395. Whether alleged facts constitute a takings claim is

                                       23
a question of law.     Little-Tex Insulation Co., 39 S.W.3d at 598; Tex. Bay

Cherry Hill, 257 S.W.3d at 395. Thus, we must determine whether appellees’

challenges to York’s pled takings claim are sufficient to defeat jurisdiction.

      Appellees have alleged that “[t]he exercise of police powers in seizing and

impounding the trailer by DPS officials is authorized under state law [as] a valid,

proper, and reasonable exercise of police powers”; therefore, “[t]here can be

no compensable taking for the ‘seizure and impounding’ of the trailer by DPS

officials.” 12 But even the valid exercise of police power does not bar a takings

claim under article I, section 17 if the taking was for a “public use.” See Steele

v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); City of Dallas v. VSC,

LLC, 242 S.W.3d 584, 591–92 (Tex. App.—Dallas 2008, pet. filed); Sefzik v.

City of McKinney, 198 S.W.3d 884, 898 (Tex. App.—Dallas 2006, no pet.)

(quoting DuPuy v. City of Waco, 396 S.W.2d 103, 107 n.3 (Tex. 1965)).

      Appellees further alleged that because York also pled that the justice

court acted outside its jurisdiction in awarding the property to appellees that he


      12
        … York clarified in his reply brief that he does not contend that the initial
seizure of the trailer constituted a compensable taking, but rather that
appellees’ continued possession and assertion of rights to the trailer constitute
such a taking. Although the State contends on rehearing that it has never
possessed the trailer, and therefore cannot be responsible under a takings
theory for its continued possession, the State filed the justice court action in its
name, and the justice court awarded the trailer to the State, for the County’s
use or disposal.

                                         24
did not allege a lawful taking. However, as York made clear in his response, he

was not alleging that the justice of the peace acted “unlawfully,” as in

completely outside her authority as a judge; he simply contends that in

exercising her valid judicial authority, she ruled in a case in which the court did

not have subject matter jurisdiction of the action brought by appellees and that,

as a result, appellees continue to intentionally possess his trailer for public use.

Accordingly, York’s allegations that the justice court lacked subject matter

jurisdiction because of the bankruptcy stay do not defeat his takings claim. See

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997); Cobb v.

Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945).

      Appellees further allege that a valid takings claim requires that the

governmental entity act pursuant to its eminent domain powers and that the

DPS officials and the justice of the peace were acting “under color of right”

granted by article 47.01a rather than exercising their eminent domain powers.

But this is not a valid challenge to a takings claim. See Steele, 603 S.W.2d at

789; VSC, 242 S.W.3d at 592–93; Tex. Workforce Comm’n v. MidFirst Bank,

40 S.W.3d 690, 697 (Tex. App.—Austin 2001, pet. denied). Indeed, it would

negate the validity of inverse condemnation claims based on regulatory actions

(rather than actual physical takings), which have long been permissible in

Texas. See, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.

                                        25
1998) (holding that zoning ordinance can effect a regulatory taking if the

ordinance “does not substantially advance legitimate state interests” or denies

an owner all “economically viable use of his land”), cert. denied, 526 U.S. 1144

(1999). We conclude and hold that the dismissal cannot be upheld based on

appellees’ challenges to the validity of York’s alleged takings claim.

      The crux of York’s complaint, then, seems to hinge on this issue:

whether appellees, with knowledge that York actually owned the trailer,

intentionally utilized article 47.01a to divest him of ownership. In arguing this

issue, appellees contend that York cannot bring a takings claim as to the trailer

because it is deemed stolen by virtue of the missing VIN plates; therefore, he

has no legally cognizable property interest in the trailer. York, however, alleged

in his Second Amended Petition that the justice court had awarded Wise County

property seized for lack of a VIN in “virtually every case” over a five-year

period, except one involving a Wise County Commissioner. A fair reading of his

complaint is that the county, at least, has been using the statute as a means

to take physical possession of property owned by private citizens without

compensation.

      Indeed, appellees’ interpretation of the statute appears to lend at least

some support to this theory. Appellees repeatedly refer to article 47.01a as a

forfeiture statute.   A civil forfeiture action is an in rem proceeding against

                                       26
contraband. State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex.

2004). Civil forfeiture statutes are typically remedial rather than punitive and

serve to deter criminal behavior by imposing an economic penalty upon property

itself, rather than an individual. See Fant v. State, 931 S.W.2d 299, 304–08

(Tex. Crim. App. 1996); Prear v. State, 933 S.W.2d 643, 646 (Tex. App.—San

Antonio 1996, no pet.). Under Chapter 59 of the code of criminal procedure,

even an owner can lose his or her interest in property that was used or intended

to be used in the commission of certain felonies. See Tex. Code Crim. Proc.

Ann. § 59.02(c)(1) (Vernon 2006) (providing that owner’s property may not be

forfeited only if owner “did not know or should not reasonably have known of

the act or omission giving rise to the forfeiture or that it was likely to occur”).

      The purpose of article 47.01a, in contrast, is to return property to its

rightful owner, not to enable the State to obtain property as a means to deter

criminal activity through the imposition of an economic penalty. See Act of

May 27, 1977, 65th Leg., R.S., ch. 813, 1977 Tex Gen. Laws 2034, 2034

(describing act creating article 47.01a as “relating to the return of stolen

property to the rightful owner when no criminal trial is pending”); Universal

Underwriters Group v. State, 283 S.W.3d 897, 899–901 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (holding State not entitled to retain stolen property

under article 47.01a simply because rightful owner’s gross negligence made it

                                        27
possible for thief to steal it); White, 930 S.W.2d at 676 n.2 (considering

legislative history of appeal provision of chapter 47 showing that its purpose is

to “facilitate the rapid return of the property to its owner”).    Under article

47.01a, the operative issue is who has the superior right to possess the

property, not whether the owner has somehow facilitated the theft.13 See

Universal Underwriters, 283 S.W.3d at 900. Thus, it is clear that the purpose

of transportation code section 501.158’s 14 allowing vehicles without VINs to




      13
         … The State claims that when property is seized for lack of a VIN, “DPS
officials cannot allow a citizen to possess the property with its [VIN] removed,
as the actual owner of the property cannot be conclusively determined.”
[Emphasis added.] But article 47.01a does not require that ownership be
conclusively proved to return property, only that the interested party show a
“superior right to possession.” Tex. Code Crim. Proc. Ann. art. 47.01a (a)(1).
      14
         … See Tex. Transp. Code § 501.158 (using the permissive term, “may,”
to provide that property seized for lack of a VIN is subject to disposition under
article 47.01a). No other provision in the statutory scheme regarding vehicles
with missing, altered, or obliterated VINs indicates that such vehicles are
considered “per se” stolen. For example, it is an affirmative defense to
prosecution for possessing or operating such a vehicle that the person operating
or possessing the vehicle is the owner. Tex. Penal Code Ann. § 31.11(b)(1)
(Vernon 2003). And a person “determined by the department or a court to be
the owner of a motor vehicle . . . that has had the serial number removed,
altered, or obliterated may apply to [DPS] for an assigned vehicle identification
number.” Tex. Transp. Code Ann. § 501.033(a) (Vernon 2007) (emphasis
added). A certificate of title or “other valid evidence of ownership as required
by the department” is required to apply for such a number. Id. § 501.033(b)
(emphasis added). This is in direct contrast to the State’s argument that if a
vehicle seized for lack of a VIN were returned to the public domain, the seizure
and impounding of the vehicle under section 501.158 would be repeated.

                                       28
be disposed of in the same manner as stolen property via article 47.01a is not,

as appellees contend, to “remove such property from the public domain to

prevent stolen property from being used and circulated” but, instead, to ensure

that such vehicles are returned to their rightful owners if those owners can be

ascertained. See Tex. Code Crim. Proc. Ann. art. 47.01a(a)(1)–(3) (providing

that upon application of interested party, court shall order property delivered to

“whoever has the superior right to possession,” either without conditions or

subject to the condition that the property be made available to the State if

needed in future prosecutions, or to a peace officer pending resolution of

criminal investigations), art. 47.01a(b) (providing that if probable cause exists

to believe that property is stolen, and “the identity of the actual owner of the

property cannot be determined,” the court shall order it delivered to a

governmental agency for official purposes, delivered to a person authorized to

receive and dispose of property under article 18.17, or destroyed), art. 47.03

(requiring officer seizing property to “immediately file a schedule of same, and

its value, with the court having jurisdiction of the case” and “notify the court

of the names and addresses of each party known to the officer who has a claim

to possession of the seized property”), art. 47.04 (providing that if ownership

is proven to the court upon an examining trial, property shall be restored to the

owner, subject to the property being made available during trial), art. 47.06–07

                                       29
(providing that property can be sold if not claimed within thirty days of

conviction but also allowing owner to recover property after sale as set forth

in article 18.17 of the code of criminal procedure).

      Here, York has put forth considerable, credible evidence of his ownership

of the vehicle, regardless of the missing VIN.15 Appellees have not controverted

that evidence. Although from York’s affidavit testimony it appears that the

evidence he presented to the justice court showed that McNutt Co., rather than

York, was the true owner of the property,16 Sergeant Martinez’s testimony does



      15
          … In its motion for rehearing, Wise County contends, and the dissent
agrees, that York cannot now claim he owns the trailer for purposes of a
takings claim because the justice court’s determination that he did not own the
trailer is final and entitled to preclusive effect. But the justice court did not find
that York is not the owner of the trailer; “ownership” was not at issue in the
proceeding. As we have previously stated, article 47.01a does not require a
party to prove ownership, but rather a superior right of possession. If McNutt
were the rightful owner of the trailer and now bringing a claim as a result of the
awarding of the trailer to the State in the justice court proceeding, would we
hold that the issue of “ownership” had already been litigated and, therefore,
that McNutt could not now attempt to show ownership? Surely a statute
compelling such a result would effect a compensatory “taking.”
      16
         … York averred that he produced registration receipts, photographs of
the trailer with his other equipment, billing records, repair records, DPS
inspection records, and his own testimony. However, the registration receipts
in this record show the owner as McNutt Co. and York only as the “registration
recipient.” There is no indication that York presented the justice court with the
ownership evidence that he brought forward here. Interestingly, though, he
alleges in his Second Amended Petition that in the case of the Wise County
Commissioner who recovered his property, the justice court initially ruled that
the property be awarded to the county, but in a subsequent proceeding over a

                                         30
not indicate that he ever contacted or attempted to contact McNutt Co.; he

simply concluded that since York could not produce the original VIN plates that

the property was “deemed” stolen and that there was no way of ever tracing

ownership.17 McNutt Co. was never served in the 47.01a proceeding or named

as an interested party. This is significant because if McNutt Co. were the

owner, as evidenced on the DPS registration receipts, and was allowing York

to use the property, also as evidenced by the DPS registration receipts, then

York would have a superior right to possess the trailer as against appellees,

regardless of whether the trailer was deemed stolen or not. See Universal

Underwriters, 283 S.W.3d at 901 (holding that a title holder has “‘the superior

right to possession’ over one who holds no title”). It seems logical that if DPS

were acting in furtherance of the true purpose of article 47.01a, to return

property to its rightful owner, that Sergeant Martinez would at least have



year later, and after the time for appeal had expired, the justice court ruled that
the Commissioner could recover the property. Although mere allegations at this
point, it is interesting to note whether the governmental entities in that case
accused the plaintiff of overwhelming the court with voluminous filings while
at the same time raising numerous avoidance defenses.
      17
       … See Am. Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 768 (Tex.
App.—Texarkana 1992, writ denied) (referencing officer’s testimony regarding
confidential VIN plate that, when cross-referenced through the automobile
manufacturer, identified the truck as one reported stolen by the owner). There
was no testimony or other evidence as to whether the trailer here would have
contained a confidential VIN plate in addition to the plates that were removed.

                                        31
included McNutt Co. in his investigation. The evidence that he contacted York

instead, coupled with York’s allegations (and appellees’ admissions that

appellees are treating article 47.01a as a forfeiture statute), is enough to at

least raise a fact issue sufficient to survive appellees’ jurisdictional challenge to

York’s alleged takings claim. See Miranda, 133 S.W.3d at 227–28; Andrews,

155 S.W.3d at 355.

      Likewise, we conclude and hold that York raised a fact issue as to

whether the trailer was to be used for a public purpose because, although it is

currently being stored in a locked area, the justice court’s order states that the

sheriff’s department had the discretion to either use the trailer or dispose of it

in its discretion.18

                       Immunity of Governmental Officials

      Wise County also alleged that it is entitled to derivative immunity through

the qualified or official immunity of Trooper Godwin and Sergeant Martinez, and

the qualified, official, or judicial immunity of Justice of the Peace Johnson.




      18
        … York states in his brief, without record references, that “Chief Deputy
Doug Whitehead, of the Wise County Sheriff’s Department testified in
deposition that his intent was to convert the trailer to public use by designating
the trailer for use in homeland security and utilizing it to distribute water to
county residents in the event of a terrorist attack.” Appellees did not challenge
this factual assertion.

                                         32
      Official immunity is an affirmative defense to personal monetary liability

available to an official sued in his or her individual capacity. Tex. A&M Univ.

Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex. 2007); City of Lancaster v.

Chambers, 883 S.W .2d 650, 653 (Tex. 1994). It is not a proper basis for a

plea to the jurisdiction by a governmental entity. See Koseoglu, 233 S.W.3d

at 843; City of Lancaster, 883 S.W.2d at 653. Qualified immunity, likewise,

is an analogous affirmative defense to federal section 1983 claims against

public officials, a claim York has not made here. 42 U.S.C.A. § 1983 (West

2004); Leo v. Trevino, 285 S.W.3d 470, 479 (Tex. App.—Corpus Christi 2006,

no pet.); see Leachman v. Dretke, 261 S.W.3d 297, 312 (Tex. App.—Fort

Worth 2008, no pet.). Accordingly, we conclude and hold that the dismissal

orders cannot be upheld as to York’s takings claim based on Wise County’s

allegations that it is entitled to the benefit of any official or qualified immunity

of Trooper Godwin and Sergeant Martinez.

      Additionally, derived judicial immunity protects officers of the court or one

to whom a judge has delegated or appointed a person to perform services on

behalf of the court.    Dallas County v. Halsey, 87 S.W.3d 552, 553 (Tex.

2002); Alpert v. Gerstner, 232 S.W.3d 117, 125–26 (Tex. App.—Houston [1st

Dist.] 2006, pet. denied). This type of immunity flows from the official judicial

capacity of the judge. See Dallas County, 87 S.W.3d at 554. Thus, it logically

                                        33
does not extend to a party to a proceeding, nor to the State or a county simply

by virtue of a judge’s employment. Accordingly, we conclude and hold that

dismissal of York’s takings claim would not have been proper on a derivative

immunity theory.

      Having determined that none of appellees’ immunity allegations defeats

the county court at law’s jurisdiction over York’s takings claim as pled, we

sustain York’s sixth and seventh issues as to that claim only.

                                  Conclusion

      Having overruled York’s issues dispositive to his declaratory judgment

claims, we affirm the trial court’s dismissal orders as to those claims. But

having sustained York’s sixth and seventh issues as to his takings claim, we

reverse the trial court’s dismissal orders as to that claim only and remand this

case for further proceedings consistent with this opinion.




                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

CAYCE, C.J. filed a dissenting opinion.

DELIVERED: September 24, 2009


                                      34
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-118-CV


LARRY YORK D/B/A                                                    APPELLANT
YORK TANK TRUCKS
                                       V.

STATE OF TEXAS AND                                                  APPELLEES
WISE COUNTY, TEXAS
                                   ------------

          FROM THE COUNTY COURT AT LAW OF WISE COUNTY

                                   ------------

               DISSENTING OPINION ON REHEARING

                                   ------------

      I respectfully dissent. The majority correctly held that the Justice of the

Peace’s judgment, which determined the issue of York’s alleged ownership,

was not void on its face and, therefore, that it was not subject to collateral

attack. The majority, however, disregards the finality of the Justice of the

Peace’s determination on the issue of ownership and erroneously holds that

York’s takings claim may proceed. In so holding, the majority has allowed York
to do what it held he cannot do—collaterally attack the Justice of the Peace’s

judgment.

         An essential element of a takings case is that the plaintiff owned the

property.1 The basis of York’s takings claim is that the State of Texas and

Wise County wrongfully took his trailer. But, the Justice of the Peace has

determined that the trailer was not York’s property.      York did not directly

appeal this decision. Thus, the Justice of the Peace’s factual determination

that York did not own the property became final with respect to any further

challenge raised in state court. York’s only available option was to challenge

the Justice of the Peace’s finding in bankruptcy court, which he failed to do.

He cannot collaterally challenge the Justice of the Peace’s finding in state

court.

         Because York’s takings claim constitutes an impermissible collateral

attack on a final judgment, I dissent. I would affirm the judgment of the trial

court dismissing York’s suit for want of jurisdiction.




                                                 JOHN CAYCE
                                                 CHIEF JUSTICE

DELIVERED: September 24, 2009




         1
       … Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998),
cert. denied, 526 U.S. 1144 (1999).

                                        2
