                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-440-CV


DESTRUCTORS, INC.                                                    APPELLANT

                                        V.

CITY OF FOREST HILL                                                    APPELLEE

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           FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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I. INTRODUCTION

      In three issues, Appellant Destructors, Inc. appeals the trial court’s order

granting Appellee City of Forest Hill’s plea to the jurisdiction.      We must

determine whether the trial court had subject-matter jurisdiction to enjoin the

enforcement of the municipal ordinance at issue. Because we hold that it does

not, we affirm.



      1
          … See Tex. R. App. P. 47.4.
II. BACKGROUND

      Destructors operates concrete and asphalt recycling plants. Destructors

accepts the materials for free from independent contractor hauling companies

hired by governmental entities. Destructors then crushes and sells the concrete

and asphalt to cities, counties, the Texas Department of Transportation, and oil

and gas companies for use in new road and drilling pad site foundations.

      A. The City’s Truck Route Ordinances

      In 1976, the City adopted an ordinance designating three truck routes

within the city limits.   Forest Hill, Tex., Code § 126-212(b) (November 6,

2007). Aside from these designated truck routes, the City prohibits commercial

motor vehicles 2 from using a residential street without either (1) a point of

origin or destination within the City; or (2) a City-issued permit. Id. §§ 126-

212(a), 126-216–218.       The City’s municipal code prohibits a “commercial

motor vehicle, truck tractor, trailer, or semitrailer” weighing more than 72,000

pounds from receiving a permit. Id. § 126-278.

      B. Destructors’ Recycling Plant

      On October 27, 2008, Destructors leased approximately 15.5 acres just

outside the City’s eastern boundary, entirely within the City of Fort Worth, and


      2
       … The ordinance defines a commercial motor vehicle as “any motor
vehicle designed or used for the transportation of property, not including a
passenger bus, passenger automobile, motorcycle, panel delivery truck, or
pickup truck.” Forest Hill, Tex., Code § 126-211.

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began operating a concrete and asphalt recycling facility. The plant is accessed

by Esco Drive or Freeman Drive—the two roads form the “Freeman-Esco Loop”

within the Fort Worth city limits. Access to the Freeman-Esco Loop is available

only via Anglin Drive, a residential street entirely located in the City, 3 south of

the City’s designated truck routes. The trucks using Anglin Drive to deliver the

used concrete and asphalt to Destructors’ facility weigh approximately fifteen

tons and typically haul a minimum of twenty-five tons per load—for a total

approximate weight of 80,000 pounds.4

      C. The City Enforces Ordinance

      Within four days of opening its facility, at least twelve truck drivers

delivering used concrete and asphalt to Destructors’ plant received citations

from the City’s police officers for violating the ordinances.          Destructors

contends the ordinance will put its plant out of business because the

independent contractor truck drivers will avoid being ticketed by delivering

materials to competing concrete recycling facilities instead of meeting the

ordinance’s weight limit requirements and applying and paying for a permit from

the City.



      3
      … The City’s eastern boundary is the eastern edge of the right-of-way
of Anglin Drive.
      4
      … In its second amended pleading, Destructors does not indicate the
approximate weight of vehicles using Anglin Drive to pick up crushed asphalt
and concrete from the facility.

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      D. Procedural Background

      Destructors filed suit against the City on October 14, 2008. The City

answered on October 30, 2008. The next day, Destructors filed its second

amended petition and application for a temporary restraining order, alleging (1)

the City illegally took Destructors’ property without compensation, violating the

Texas Private Real Property Rights Preservation Act; (2) inverse condemnation;

(3) nuisance; and (4) equal protection.

      The City filed a plea to the jurisdiction asserting three grounds: (1)

Destructors failed to exhaust all administrative remedies before seeking

injunctive relief; (2) a civil court has no jurisdiction to render naked declarations

of “rights, status or other legal relationships arising under a penal statute;” and

(3) Destructors failed to affirmatively allege facts showing an irreparable harm

to a vested property right. After a hearing, the trial court granted the City’s

plea by written order without specifying the ground on which the plea was

granted.

III. DISCUSSION

      On appeal, Destructors contends by its first and fourth issues that the

trial court erred by granting the City’s plea to the jurisdiction because it has a

vested property interest that is threatened by irreparable harm. By its second

issue, Destructors contends there was no administrative procedure for it to

follow before filing suit against the City.       By its third issue, Destructors

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contends the trial court erred by granting the plea because the City’s ordinance

is preempted by Texas law, void, and unconstitutional under the Texas

Constitution and United States Constitution. Because they are dispositive, we

address Destructors’ first and fourth issues, contending that the trial court erred

by granting the plea to the jurisdiction on the ground that Destructors failed to

assert irreparable harm to a vested property interest.

      A. Standard of Review

      Whether the trial court has subject-matter jurisdiction is a question of law

we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea that

challenges the trial court’s subject-matter jurisdiction. Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of

action without regard to whether the claims asserted have merit. Id.

      Analysis of whether a trial court has authority to decide a case begins

with the plaintiff’s live pleadings.   See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff has the burden of

alleging facts that affirmatively establish the trial court’s subject-matter

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We construe the pleadings liberally in favor of the plaintiff, look

to the pleader’s intent, and accept the pleadings’ factual allegations as true.

Miranda, 133 S.W.3d at 226. When the trial court does not specify the basis

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for its ruling, we must affirm the trial court’s judgment if any one of the

theories advanced is meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005). To prevail on appeal, then, Destructors must show the

trial court could not properly grant the plea to the jurisdiction on any of the

grounds asserted by the City. See Star Telegram, Inc. v. Doe, 915 S.W.2d

471, 473 (Tex. 1995).

      B. Analysis

      Destructors contends that the trial court has subject-matter jurisdiction

to determine whether the City’s penal ordinance is unconstitutional because the

ordinance threatens irreparable injury to Destructors’ vested property rights.

      1. Civil Trial Court Has Narrow Jurisdiction Over Criminal Statutes

      Because Texas has a bifurcated system of criminal and civil jurisdiction,

the meaning and validity of a penal statute or ordinance should ordinarily be

determined by courts exercising criminal jurisdiction. State v. Morales, 869

S.W.2d 941, 945 (Tex. 1994). However, an equity court possesses a narrow

jurisdictional power to decide a matter regarding a criminal statute:

      A civil court has jurisdiction to declare constitutionally invalid and
      enjoin the enforcement of a criminal statute only when (1) there is
      evidence that the statute at issue is unconstitutionally applied by
      a rule, policy, or other noncriminal means subject to a civil court’s
      equity powers and irreparable injury to property or personal rights
      is threatened, or (2) the enforcement of an unconstitutional statute
      threatens irreparable injury to property rights.




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Id. at 942; City of Argyle v. Pierce, 258 S.W.3d 674, 681 (Tex. App.—Fort

Worth 2008, no pet.).

      Here, the City’s ordinances make it unlawful to operate any truck or

commercial motor vehicle “on a public street in [Forest Hill] without a business

destination or point of business origin within the corporate limits of the city

except upon streets designated as truck routes or commercial delivery routes

. . . . without first obtaining a [City] permit to do so.” Forest Hill, Tex., Code

§§ 126-212, 126-216—217, 126-271, 126-273.                Because of the term

“unlawful,” and the authority granted to the City’s police department to enforce

the ordinance, this is a penal ordinance.      Id. § 126-246; see Morrow v.

Truckload Fireworks, Inc., 230 S.W.3d 232, 237 (Tex. App.—Eastland 2006,

no pet.) (finding a penal ordinance exists when no ancillary administrative

actions, such as modifying an individual’s salary, can be taken or threatened by

violating the ordinance).

      2. Jurisdiction Over Criminal Statutes Requires Harm to Property Rights

      Civil equity courts have no jurisdiction to enjoin the enforcement of

criminal statutes in the absence of irreparable harm to vested property rights.

See Morales, 869 S.W.2d at 943. Property rights are created and defined by

state law. Reese v. City of Hunter’s Creek Vill., 95 S.W.3d 389, 391 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (citing Stratton v. Austin Indep. Sch.

Dist., 8 S.W.3d 26, 29 (Tex. App.—Austin 1999, no pet.)).             A person’s

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property interests include actual ownership of real estate, chattels, and money.

Id. Property owners do not have a constitutionally protected vested right to use

real property in any certain way, without restriction. City of La Marque v.

Braskey, 216 S.W.3d 861, 862 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(citing City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972)); Hang

On III, Inc. v. Gregg County, 893 S.W.2d 724, 726 (Tex. App.—Texarkana

1995, writ dism’d by agr.) (holding that property owner did not have a vested

property right in operating a sexually-oriented business on that property).

      In City of La Marque, Braskey operated a cat shelter on property she

owned within 100 feet of three residences. 216 S.W.3d at 862. The City of

La Marque passed an ordinance prohibiting the operation of a kennel within 500

feet of a dwelling. Id. Braskey sought an injunction from the trial court to

prevent the enforcement of the ordinance against her, which she claimed would

result in her facility being closed.   Id.   Because Braskey’s asserted harm

concerned a particular use of her property, which is not a constitutionally

protected vested right, the civil trial court did not have jurisdiction to hear

Braskey’s lawsuit. Id. at 864.

      Destructors attempts to distinguish the present case from City of La

Marque by arguing its holding only applies to zoning ordinances, not traffic

ordinances. However, Destructors cites no authority for its argument and we

see no reason the two types of ordinances should be treated differently in this

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instance. Similar to Braskey’s claim in City of La Marque, Destructors’ pleaded

injury relates only to the particular use of the leased property, as a concrete

recycling plant, not the right to use the property. Such an allegation is not a

threat of an irreparable injury to a vested property right as is required to grant

the trial court subject-matter jurisdiction. See Morales, 869 S.W.2d at 945,

n.8; City of LaMarque, 216 S.W.3d at 864.

      Citing Passel v. Fort Worth Indep. Sch. Dist., Destructors contends that

the trial court has jurisdiction to protect its personal rights 5 from the ordinance’s

unconstitutional application. 440 S.W.2d 61 (Tex. 1969). In Passel, injunctive

relief was sought solely to protect personal rights—the right of free and private

association—by preventing administrative enforcement of an administrative

regulation adopted for the purpose of implementing a statute. Id. at 64. In

Morales, the Texas Supreme Court clarified its holding in Passel, stating that a

trial court may have subject-matter jurisdiction and grant an injunction to

protect personal property rights when a plaintiff complains about a rule and

does not seek a naked declaration of a penal statute’s unconstitutionality. 869

S.W.2d at 946. Here, Destructors is not attempting to prevent enforcement of

an administrative regulation or rule; rather it is seeking a naked declaration of

a penal ordinance’s unconstitutionality. A personal right cannot uniformly be


      5
       … Destructors does not identify or explain the personal rights needing
protection.

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substituted for a property right and thereby expand a civil court’s equity

jurisdiction over criminal statutes or ordinances. See id.

      3. Jurisdiction Requires the Ordinance to Operate Against Destructors

      Destructors alternatively argues that the trial court has jurisdiction

because it will never be prosecuted under the City’s ordinance and has no

ability to challenge the ordinance in criminal court. Destructors cites City of

Austin v. Austin City Cemetery Ass’n for the proposition that there are cases

in which there is no pending or anticipated prosecution, but that a civil court

can grant an injured party an injunction to prevent the enforcement of a penal

ordinance.   28 S.W. 528 (Tex. 1894)        However, in City of Austin, the

challenged ordinance operated against both a business and its customers. Id.

Here, the City’s ordinance does not ban the possession or transportation of

concrete or asphalt or make Destructors liable for any customer transporting

materials to or from Destructors’ plant without a city permit. Moreover, as

Destructors admits, the ordinance cannot be enforced against it because the

plant is not in the City’s limits and because Destructors neither owns nor hires

trucks to transport the materials.   If a party faces no prosecution under a

challenged ordinance, the ordinance has no in terrorem effect. Morales, 869

S.W.2d at 944, n.7. Because the ordinance in this case cannot be enforced

against Destructors, City of Austin does not apply.




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      4. Destructors Failed To Establish Jurisdiction

      Construing the pleadings liberally in favor of Destructors, it failed to

establish the civil equity court’s subject-matter jurisdiction because it did not

identify an irreparable injury to vested property rights. Destructors’ first and

fourth issues are overruled.

      Because we conclude that the trial court lacked jurisdiction absent

irreparable injury to vested property rights, we need not address Destructors’

second issue that no administrative procedures exist for Destructors to follow

before filing suit against the City. See Tex. R. App. P. 47.1. And, because civil

equity courts have no jurisdiction to enjoin the enforcement of criminal statutes

in the absence of irreparable harm to vested property rights, we do not reach

Destructors’ third issue that the City’s ordinance is preempted by Texas law

and unconstitutional under the state and federal constitutions.         See id.;

Morales, 869 S.W.2d at 943; City of Houston v. Guthrie, No. 01-08-00712-

CV, 2009 WL 5174258, at *13–14 (Tex. App.—Houston [1st Dist.] 2009, no

pet.) (holding that because a lessee’s rights do not exceed those of the property

owners, lessees did not have a constitutionally protected right to use the

property in any certain way, without restriction, and could not establish the

threat of an irreparable harm to a vested property interest).




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IV. CONCLUSION

      Accordingly, we affirm the trial court’s order granting the City’s plea to

the jurisdiction.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: May 13, 2010




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