AFFIRM; Opinion Filed December 21, 2018




                                                                     In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                          No. 05-18-00084-CV

     THE STATE OF TEXAS BY AND THROUGH THE CITY OF DALLAS, Appellant
                                  V.
                       DALLAS PETS ALIVE, Appellee

                                   On Appeal from the County Court at Law No. 2
                                               Dallas County, Texas
                                       Trial Court Cause No. CC-18-00229-B

                                            MEMORANDUM OPINION
                                        Before Justices Lang, Fillmore, and Schenck
                                                Opinion by Justice Schenck
           The State of Texas by and through the City of Dallas1 appeals a trial court’s order denying

its plea to the jurisdiction. In its first issue, appellant argues that a court does not have subject-

matter jurisdiction over injunctive relief against a governmental entity without a valid waiver of

immunity. In its second and third issues, appellant urges that the trial court lacks subject-matter

jurisdiction to consider an appeal of a determination under section 822.003 of the health and safety

code. We affirm the trial court’s order. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.




      1
        Appellant’s briefing and documents at the county courts at law identify appellant as “State of Texas by and through the City of Dallas.” We
express no opinion as to whether appellant represents the State of Texas by and through the City of Dallas and hereinafter will refer to the appealing
party as “appellant.”
                                                              BACKGROUND

           In late 2016, Dallas Animal Services took in a pit bull terrier-type dog, Rusty, and soon

after Dallas Pets Alive (“DPA”), a non-profit animal rescue organization, accepted Rusty and

placed him in foster care. On December 16, 2017, DPA took Rusty to an adoption event held at a

public park, at which Rusty bit and injured a two-year-old child. Rusty was taken to Dallas Animal

Services for a mandatory ten-day bite quarantine. After that quarantine period had expired, a City

of Dallas animal control officer signed an affidavit for probable cause requesting a warrant to seize

Rusty for causing death or serious bodily injury to a person pursuant to section 822.002 of the

health and safety code. A municipal court held a hearing to determine whether Rusty caused

serious bodily injury to a person by attacking, biting, or mauling the person. Based on the

testimony and evidence presented, the municipal court found that Rusty attacked, bit, and mauled

a minor child, resulting in serious bodily injury to the child as defined by section 822.001(2) of

the health and safety code. On January 5, 2018, pursuant to section 822.003(e) of the health and

safety code, the municipal court ordered the dog to be humanely euthanized on January 16, 2018.

           On January 10, 2018, DPA filed a notice of appeal in the county courts at law, seeking to

appeal the municipal court order. Two days later, but before the appeal of the municipal court

order was docketed, DPA filed an application for temporary restraining order (“TRO”), temporary

injunction, and permanent injunction, seeking to stay the municipal court’s order.                                                        In its

application, DPA stated that appellant would not agree to stay the euthanization of Rusty pending

the appeal of the municipal court’s order and that the requested injunction was necessary to

preserve the subject matter of the suit. The TRO application was assigned to County Court at Law

No. 2.2 On January 12, the trial court granted the application and signed an order directing




      2
        The appeal of the municipal court order was later assigned to County Court at Law No. 5, and the appeal from that court’s order is resolved
in a separate opinion. See State ex rel City of Dallas v. Dallas Pets Alive, No. 05-18-00282-CV (Tex. App.—Dallas ___, 2018, no pet. h.).

                                                                      –2–
appellant to cease and desist from euthanizing Rusty during the temporary restraining period and

setting a hearing on the application in fourteen days (“January 12, 2018 TRO”).

        On January 16, 2018, appellant filed a plea to the jurisdiction in County Court at Law No.

2, urging that the county court at law lacked subject-matter jurisdiction over DPA’s TRO

application because of a lack of waiver of governmental immunity and because Subchapter A of

Chapter 822 does not provide a right of appeal. The county court at law conducted a hearing on

the plea and later issued an order dated January 22, 2018, denying appellant’s plea to the

jurisdiction. The following day, appellant filed its notice of accelerated appeal.

                                             DISCUSSION

        In its first issue, appellant argues that a court does not have subject-matter jurisdiction over

injunctive relief against a governmental entity without a valid waiver of immunity. Appellant

urges that DPA did not have, nor did it assert, a valid waiver, but instead asserted subject-matter

jurisdiction existed based on its appeal from the municipal court’s order. DPA responds that this

action arises out of an appeal of the municipal court order, and that appellant initiated the

underlying proceeding in the municipal court, and there is no immunity from DPA’s responsive

suit.

        Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). It is never presumed and

cannot be waived. Id. at 443–44. An appellate court is obligated, even sua sponte, to determine

the threshold question of jurisdiction. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd.,

95 S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The existence of subject-

matter jurisdiction is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).




                                                  –3–
           Whether subject-matter jurisdiction exists is a question of law that can be challenged, as it

was here, by a plea to the jurisdiction. City of Dallas v. E. Vill. Ass’n, 480 S.W.3d 37, 42 (Tex.

App.—Dallas 2015, pet. denied). On appeal, we review an order denying a plea to the jurisdiction

de novo. Id.

           Generally, a plea to the jurisdiction may challenge the sufficiency of the claimant’s

pleadings or the existence of necessary jurisdictional facts. Id. When the plea challenges the

claimant’s pleadings, we determine whether the claimant has pleaded facts that affirmatively

demonstrate the trial court’s jurisdiction, construing the pleadings liberally and in favor of the

claimant. Id. When the plea appropriately challenges jurisdictional facts, we consider evidence

submitted by the parties. Id. In performing our review, we do not look to the merits of the

claimant’s case, but consider only the pleadings and the evidence pertinent to the jurisdictional

inquiry. Id. If the jurisdictional evidence creates a fact question, then the trial court cannot grant

the plea to the jurisdiction, and the issue must be resolved by the fact finder. Id. This standard

mirrors our review of summary judgments. Id.

           In this case, appellant challenged the trial court’s subject-matter jurisdiction on two

grounds: lack of waiver of governmental immunity and lack of subject-matter jurisdiction to

consider an appeal of a determination under section 822.003 of the health and safety code.

           Sovereign or governmental3 immunity consists of two distinct components: immunity from

suit and immunity from liability. Id. at 45. While appellant does not assert immunity from

liability, it does urge that it remains immune to this suit. Immunity from suit bars an action against

the state unless the state expressly consents to the suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d




      3
        In our jurisprudence we employ the phraseology “sovereign immunity” and “governmental immunity” respectively to refer to the immunity
applicable to the state itself, in the first instance, and to the various political subdivisions that are created by the Legislature’s will and operate
independently from the state itself in the second instance. E. Vill. Ass’n, 480 S.W.3d at 45 n.5.



                                                                        –4–
636, 638 (Tex. 1999). Absent the state’s consent to suit, a trial court lacks subject-matter

jurisdiction. See id. However, where the state initiates litigation, it has no immunity from suit.

See State v. Fid. & Deposit Co. of Md., 223 S.W.3d 309, 310–11 (Tex. 2007).

       Here, appellant initiated the underlying proceedings in the municipal court. After filing its

notice of appeal, DPA filed an application for temporary restraining order, temporary injunction,

and permanent injunction, seeking to stay the municipal court’s order. Thus, appellant waived its

immunity from suit by initiating the underlying proceedings in the municipal court. See id.

       Additionally, as appellant concedes in its brief, an appellate court can issue injunctions to

preserve its appellate jurisdiction. See Madison v. Martinez, 42 S.W.2d 84, 86 (Tex. Civ. App.—

Dallas 1931, writ ref’d). DPA’s application for injunctive relief urged that, “[i]n order to preserve

the status quo during the pendency of the appeal of the underlying order, Dallas Pets Alive requests

that the State of Texas, by and through the City of Dallas, be temporarily enjoined from killing

Rusty.” However, appellant further argues in its second and third issues that, because neither

Subchapter A of Chapter 822 of the health and safety code nor section 30.00014(a) of the

government code provide a right to appeal a court’s order pursuant to section 822.003 of the health

and safety code, the trial court lacks subject-matter jurisdiction to consider an appeal of a

determination under section 822.003 of the health and safety code.

       Appellant also raised these issues in its appeal of an order denying its plea to the jurisdiction

in County Court at Law No. 5, the court to which DPA’s direct appeal of the municipal court order

was assigned. See State ex rel City of Dallas v. Dallas Pets Alive, No. 05-18-00282-CV (Tex.

App.—Dallas ___, 2018, no pet. h.). In determining that appeal, we concluded that the county

court at law had subject-matter jurisdiction to hear DPA’s appeal of the municipal court’s order

pursuant to section 822.003 of the health and safety code. See id. Accordingly, the trial court here




                                                 –5–
properly issued the January 12, 2018 TRO in order to preserve the county court at law’s subject-

matter jurisdiction.

       We overrule appellant’s first, second, and third issues.

                   STAY PENDING CONCLUSION OF INTERLOCUTORY APPEAL

       On January 30, 2018, DPA filed a motion and request for emergency relief from this Court,

requesting a stay of the municipal court’s euthanization order during the pendency of the

interlocutory appeal. While appellant’s accelerated appeal proceeded in this Court, all other

proceedings in the trial court, including the hearing on DPA’s application for injunctive relief,

were stayed pending the resolution of the appeal. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(b). DPA complained that in spite of that stay and because the January 12, 2018 TRO had

expired, appellant sought to proceed with the euthanization of Rusty. That same day, this Court

granted DPA’s request and stayed the municipal court’s order and further proceedings in the

county court at law until the conclusion of the interlocutory appeal. With the foregoing resolution

of this appeal and the related appeal in State ex rel City of Dallas v. Dallas Pets Alive, No. 05-18-

00282-CV (Tex. App.—Dallas ___, 2018, no pet. h.), we lift this Court’s stay of the proceedings

and remand the case to the county court at law for further proceedings consistent with this opinion.

                                           CONCLUSION

       We affirm the trial court’s order denying appellant’s plea to the jurisdiction.




                                                   /David J. Schenck/
                                                   DAVID J. SCHENCK
                                                   JUSTICE

Lang, J., dissenting

180084F.P05


                                                –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 THE STATE OF TEXAS BY AND                           On Appeal from the County Court at Law
 THROUGH THE CITY OF DALLAS,                         No. 2, Dallas County, Texas
 Appellant                                           Trial Court Cause No. CC-18-00229-B.
                                                     Opinion delivered by Justice Schenck,
 No. 05-18-00084-CV          V.                      Justices Lang and Fillmore participating.

 DALLAS PETS ALIVE, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee DALLAS PETS ALIVE recover its costs of this appeal
from appellant THE STATE OF TEXAS BY AND THROUGH THE CITY OF DALLAS.


Judgment entered this 21st day of December, 2018.




                                               –7–
