       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-18-00596-CV


                                The City of Houston, Appellant

                                                v.

                           Texas Propane Gas Association, Appellee


              FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
 NO. D-1-GN-17-001089, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The City of Houston appeals from the trial court’s order denying its motion

for summary judgment, in which the City asserts that the court lacks jurisdiction over claims

for declaratory relief made by appellee Texas Propane Gas Association (TPGA). Because we

determine that the trial court erred in concluding that TPGA met its burden to plead facts

affirmatively demonstrating that it has associational standing to bring its claims, we will reverse

and remand to the trial court to allow TPGA an opportunity to cure this pleading defect.


                                        BACKGROUND

               Chapter 113 of the Texas Natural Resources Code, also known as the Liquefied

Petroleum Gas (LP-Gas) Code, provides that the Railroad Commission of Texas “shall administer

and enforce the laws of this state and the rules and standards of the commission relating to

liquefied petroleum gas.” Tex. Nat. Res. Code §§ 113.001-.011. Pursuant to its authority under

the Code to “promulgate and adopt rules or standards,” the Commission adopted the LP-Gas
Safety Rules. Id. § 113.051; 16 Tex. Admin. Code §§ 9.1-.403 (Railroad Comm’n of Tex.,

LP-Gas Safety Rules).

               In 2017 TPGA filed suit against the City challenging the legality of several

“ordinances and regulations” that were passed by the Houston City Council in 2015 and which

took effect in early 2016. According to its petition, TPGA is a “trade association representing a

statewide membership of companies and individuals actively engaged in the liquefied petroleum

gas (‘LP-gas’ or ‘propane’) industry.” In general, the ordinances challenged by TPGA amended

the City’s Fire Code and placed new restrictions on the ability to store, use, handle, or dispense

LP-Gas within the City’s jurisdiction. According to TPGA, the ordinances impose more restrictive

conditions on the LP-Gas industry than those imposed by the Commission’s LP-Gas Safety

Rules. TPGA sought a declaration that these ordinances and resulting regulations are invalid

because they are pre-empted by Section 113.054 of the Texas Natural Resources Code and by the

LP-Gas Safety Rules. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (Declaratory Judgments

Act). In relevant part, Section 113.054 states:


       The rules and standards promulgated and adopted by the [Railroad Commission]
       under section 113.051 preempt and supersede any ordinance, order, or rule
       adopted by a political subdivision of this state relating to any aspect or phase of
       the liquified petroleum gas industry.


Tex. Nat. Res. Code § 113.054. Specifically, TPGA requested that the court declare the following:


       Those portions of City of Houston’s Ordinance Nos. 2015-1108, 2015-1289, and
       2015-1316, that adopted or amended Chapter 61 of the Houston Amendments of
       the 2012 International Fire Code or purported to otherwise regulate the LP-Gas
       industry, together with Chapter 61 of the Houston Amendments of the 2012
       International Fire Code itself, . . . are invalid and ineffective to the extent they
       regulate to any aspect of the LP-Gas industry . . . .



                                                  2
In the alternative, TPGA requested declarations that certain portions of the City’s regulations are

invalid because they are more restrictive than the LP-Gas Safety Rules, including from Chapter

61 of the Fire Code: (1) “6101.02 relating to fees and permits, (2) “6101.2 and 6103.3 relating to

aggregate water capacity of LP-Gas containers,” (3) “6101.3 relating to the required submission

of applications and/or construction documents,” and (4) “6104.2 relating to maximum storage

capacity within certain storage capacity within districts of limitation.” TPGA also challenged

what it contends are more restrictive provisions found in Chapter 1, entitled “Scope and

Administration,” generally setting out the procedural mechanisms for enforcing the Fire Code’s

substantive regulations.

               TPGA subsequently filed a traditional motion for summary judgment on its

claims against the City. See Tex. R. Civ. P. 166a. In response, the City filed a motion for

summary judgment for lack of jurisdiction and a traditional motion for partial summary

judgment. The trial court denied the parties’ competing motions, including the City’s motion for

summary judgment for lack of jurisdiction. The City timely filed its notice of interlocutory

appeal from the trial court’s ruling on its jurisdictional challenge.1 See Tex. Civ. Prac. & Rem.

Code § 51.014(a)(8). In three issues, the City asserts that the trial court erred in concluding that

it has subject-matter jurisdiction to consider TPGA’s claims.

1
   Generally, appeals may only be taken from final judgments and certain appealable interlocutory
orders. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see Tex. Civ. Prac. &
Rem. Code § 51.014 (listing appealable interlocutory orders). Section 51.014(a)(8) of the Texas
Civil Practice and Remedies Code provides for an interlocutory appeal from a grant or denial
of a plea to the jurisdiction filed by a governmental unit. See Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(8). The Texas Supreme Court has construed the phrase “plea to the jurisdiction” in
Section 51.014(a)(8) to mean a challenge to jurisdiction, “irrespective of the procedural vehicle
used.” Thomas v. Long, 207 S.W.3d 334, 349 (Tex. 2006); see Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 553-54 (Tex. 2000) (recognizing that subject-matter jurisdiction may be challenged
by motion for summary judgment). Here, the City brought its jurisdictional challenge in a motion
for summary judgment, which the trial court expressly denied. As a result, we have jurisdiction
to consider this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
                                                 3
                                   STANDARD OF REVIEW

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

Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—

Austin 2010, pet. denied) (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,

443-45 (Tex. 1993)). A challenge to subject-matter jurisdiction may be raised in a plea to the

jurisdiction or in a motion for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.Wd.3d 547,

553-54 (Tex. 2000). “A summary-judgment motion challenging jurisdiction may challenge either

the pleadings or the existence of jurisdictional facts.” Lazarides v. Farris, 367 S.W.3d 788, 797

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004), and applying standard of review to denial of motion

for summary judgment challenging subject-matter jurisdiction). When the movant challenges the

pleadings, we determine if the plaintiff has met his burden to allege facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. In conducting

this review, we construe the pleadings liberally, taking them as true, and look to the pleader’s

intent. Id. (citing Texas Ass’n of Bus., 852 S.W.2d at 446). If the plaintiff has not affirmatively

pleaded facts to support jurisdiction or negate jurisdiction, the matter is one of pleading

sufficiency, and the court should provide the plaintiff with the opportunity to amend its pleadings

to cure jurisdictional issues.   Id. at 226-27.       But if the pleadings affirmatively negate the

existence of jurisdiction, the motion should be granted. Id.

               In addition, we may consider evidence that the parties presented below and must

do so when necessary to resolve jurisdictional issues. Bland Indep. Sch. Dist., 34 S.W.3d at 547.

When a motion for summary judgment challenges the existence of jurisdictional facts, the trial

court must consider relevant evidence submitted by the parties to resolve the jurisdictional issues


                                                  4
raised. Miranda, 133 S.W.3d at 226. If a fact question is presented by the evidence regarding a

jurisdictional issue, the trial court is precluded from granting summary judgment on the

jurisdictional challenge. Id. at 227-28; Lazarides, 367 S.W.3d at 797. When the relevant evidence

is undisputed or fails to raise a fact issue on the jurisdictional issue, the court should grant or

deny the motion for summary judgment as a matter of law. Miranda, 133 S.W.3d at 228;

Lazarides, 367 S.W.3d at 797.

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

we review de novo.       Miranda, 133 S.W.3d at 228. “Our ultimate inquiry is whether the

particular facts presented, as determined by the foregoing review of the pleadings and any

evidence, affirmatively demonstrate a claim within the trial court’s subject-matter jurisdiction.”

Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.).


                                           DISCUSSION

Standing

               In its first and third issues on appeal, the City contends that the trial court erred in

denying its jurisdictional challenge on grounds that there is no justiciable controversy between

the parties. See Texas Quarter Horse Ass’n v. American Legion Dep’t of Tex., 496 S.W.3d 175,

180 (Tex. App.—Austin 2016, no pet.) (referring to doctrines of ripeness, mootness, and standing

as justiciability doctrines derived from Texas Constitution). Specifically, in its first issue, the

City asserts that the relevant pleadings and jurisdictional evidence fail to establish that TPGA has

standing to sue as an organization on behalf of its members. In its third issue, the City argues

that the relevant pleadings and jurisdictional evidence fail to establish that TPGA’s claims are

not ripe or, alternatively, are moot. We turn first to the City’s arguments with respect to standing.



                                                  5
               “Standing is a prerequisite to subject-matter jurisdiction, and subject-matter

jurisdiction is essential to a court’s power to decide a case.” Bland Indep. Sch. Dist, 34 S.W.3d

at 553-54. A plaintiff must demonstrate standing for each of his claims, and the court must dismiss

any claim for which it lacks jurisdiction. Heckman v. Williamson County, 369 S.W.3d 137, 150

(Tex. 2012) (citing Andrade v. NAACP, 345 S.W.3d 1, 14 (Tex. 2011)). The general test for

constitutional standing in Texas is whether there is a “real” (i.e., justiciable) controversy between

the parties that will actually be resolved by the judicial declaration sought. Texas Ass’n of Bus.,

852 S.W.2d at 446. The requirement of standing is derived from the Texas Constitution’s

separation-of-powers provision, which denies the judiciary authority to decide cases in the

abstract, and from the open-courts provision, which provides court access only to a “person for

an injury done him.” Meyers v. JDC/Firestone, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (citing

Tex. Const. art. I, § 13). “An opinion issued in a case brought by a party without standing is

advisory because rather than remedying an actual or imminent harm, the judgment addresses

only a hypothetical injury.” Texas Ass’n of Bus., 852 S.W.2d at 444.

               Standing is a constitutional prerequisite to filing suit for both individuals and

associations. South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007). When, as in

this case, an association sues on behalf of its members, the association’s standing is established

by a three-prong test established by the United States Supreme Court in Hunt v. Washington

State Apple Advertising Commission, 432 U.S. 333, 343 (1977). See Texas Ass’n of Bus.,

852 S.W.2d at 447 (adopting Hunt test for associational standing). Under this test, an association

must demonstrate that (1) its members would otherwise have standing to sue in their own right,

(2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the

claim asserted, nor the relief requested, requires the participation of individual members. Id.

                                                 6
(quoting Hunt, 432 U.S. at 343). In its motion and on appeal, the City has focused its arguments

on whether TPGA has adequately shown that it meets the first prong of the Hunt test.

               The purpose of the first prong is “simply to weed out plaintiffs who try to bring

cases, which could not otherwise be brought, by manufacturing allegations of standing that lack

any real foundation.” Id. (quoting New York State Club Ass’n v. City of New York, 487 U.S. 1,

9 (1988)). An association plaintiff satisfies this prong by showing that “at least one of the

organization’s members has standing individually.” Save Our Springs All., 304 S.W.3d at 878.

That is, the plaintiff must first demonstrate that at least one of its members has suffered an

“injury in fact”— an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Meyers, 548 S.W.3d at 485

(laying out federal test for standing under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992), noting similarity to elements of standing under Texas law); see Save Our Springs All.,

304 S.W.3d at 878, 882-84 (applying federal test under Lujan to analyze associational standing

under first prong of Hunt test). Second, the plaintiff must demonstrate that the injury is fairly

traceable to the challenged action and, third, is likely to be redressed by the requested relief.

Id. When, as in this case, the suit challenges governmental action, the plaintiff must show that

the injury is distinct from that sustained by the public at large. See Bland Indep. Sch. Dist.,

34 S.W.3d at 555-56; Lomas, 223 S.W.3d at 307.

               In its pleadings, TPGA alleges that one of its members, Green’s Blue Flame Gas

Company, Inc., became involved on a project that included installation of an LP-Gas tank “to

fuel buses serving the Texas Medical Center.” “During the course of this project, [an inspector

from the Houston Fire Marshall’s Office] refused to evaluate the LP-Gas installation under the

LP-Gas Safety Rules and instead imposed inapplicable and more restrictive conditions and

                                                  7
requirements from Houston’s Fire Code and the 2006 and 2012 International Fire Codes simply

on the basis that the inspector ‘felt’ that they were ‘relevant and increased public safety.’”

According to TPGA’s allegations, although Green’s Blue Flame Gas had filed the form for

installation required with the Railroad Commission, the inspector refused to issue a permit

beyond 90 days and charged Green’s Blue Flame Gas Company $2,180 in permitting fees.

These undisputed allegations, taken as true, demonstrate that at least one member of the

association has already been assessed fees for a permit that is currently required by Chapter 61 of

the Houston Fire Code but not by the rules promulgated by the Railroad Commission. We

conclude that TPGA has satisfied the first prong of the Hunt test for associational standing to the

extent TPGA is challenging this permitting requirement on LP-Gas.

               In its pleadings, TPGA also generally alleges that inspectors have reviewed

projects involving installation of LP-Gas tanks and have issued red tags for “unspecified

violations of Houston’s Building Code” to unspecified persons. In one instance, a City inspector

issued a “red tag” and directed a home owner to remove a propane bottle from under a mobile

home, and in another instance, an inspector served a “Notice of Deficiencies” on a homeowner, a

customer of a TPGA member, related to an LP-Gas tank used to fuel a pool heater. Similarly,

TPGA describes an incident where another customer of a TPGA member installed “a rack

housing” for LP-Gas cylinders and was later notified by an inspector that an operational permit

was required based on the number and capacity of cylinders installed. In describing these

instances, TPGA’s pleadings fail to explain how any TPGA member, as opposed to its customer,

has suffered an injury “fairly traceable” to enforcement of what it contends are invalid

regulations on LP-Gas. See Save Our Springs All., 304 S.W.3d at 878 (laying out Supreme

Court’s test for individual standing under first prong of test for associational standing and

                                                8
concluding that allegations of harm to environmental, scientific, or recreational interests of

members who did not possess property interest in or in connection to real property involved in

development agreements were insufficient to demonstrate injury distinct from general public).

To the extent TPGA is suggesting that members will suffer an indirect economic impact as a

result of regulatory burdens placed on their customers or others, TPGA has failed to sufficiently

plead facts demonstrating a particularized injury from the challenged regulations. See Stop the

Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 929 (Tex. App.—Austin 2010, no

pet.) (explaining that indirect economic injury resulting from regulations placed on plaintiff’s

customers is substantially more difficult to establish than direct injury and that plaintiffs

claiming that challenged ordinance “discourage[ed] tourists from visiting,” and thus had

“chilling effect” on their businesses, failed to meet burden).

               Although, as previously discussed, TPGA has established that at least one of its

members has suffered an “injury in fact” that is “fairly traceable” to permitting requirements

imposed by the City, TPGA’s challenge to the ordinances is not limited to permitting requirements.

Instead, in its pleadings to the trial court, TPGA broadly requests a declaration that “those

portions of the City of Houston’s [ordinances] that adopted or amended [Chapter 61] or

purported to otherwise regulate the LP-Gas industry, together with [Chapter 61] itself . . . are

invalid and ineffective to the extent they relate to any aspect of the LP-Gas industry.” The City

argues that because standing must be examined on a claim-by-claim basis and because the

TPGA effectively seeks a declaration that all LP-Gas regulations promulgated by the City are

invalid, TPGA must establish associational standing as to each regulation but has failed to do so.

See Heckman, 369 S.W.3d at 153, 156. In response, TPGA explains that is has sufficiently

established associational standing as to each of its claims because it effectively has only one

                                                  9
claim: a declaration that the Railroad Commission’s LPG Safety Rules “preempt and supersede

any ordinance, order, or rule adopted by a political subdivision of this state relating to any

aspect or phase of the liquefied petroleum gas industry.” (Emphasis added.). In other words, in

TGPA’s view, its sole claim is a challenge to the City’s regulation of LP-Gas as a whole, and it

has sufficiently demonstrated that at least one or more of its members has suffered injury as

result of that regulation.

                In effect, TPGA challenges all of the City’s regulations “relating to” the LP-Gas

industry. Thus, to demonstrate that the first prong for associational standing has been satisfied as

to TPGA’s sole claim—as it has been framed by TPGA—the pleadings and evidence must

demonstrate that at least one of its members has suffered a particularized injury, distinct from the

general public, that is “fairly traceable” to each of the City’s regulations relating to the LP-Gas

industry—whatever TPGA contends those are—that the requested declaration will “redress.”

See Meyers, 548 S.W.3d at 485. Based on our review of the pleadings, liberally construed and

taken as true, we cannot conclude that this burden has been satisfied.

                In its pleadings, TPGA does not specifically identify for the trial court which

regulations “relat[e] to” the LP-Gas industry or where those regulations are found in the City Code,

other than to assert that the entirety of Chapter 61 of the Fire Code consists of impermissible

regulations. Similarly, TPGA does not identify what, if anything, the City’s regulations require

of TPGA members and it and has not pleaded any facts demonstrating an injury from direct

restrictions imposed on its members, apart from the one previously mentioned permitting

requirement. Because TPGA has not identified what action or inaction is required by the

regulations and from whom, we cannot evaluate whether a member of TPGA has suffered or

imminently will suffer an invasion of “some ‘legally protected’ interest that is sufficiently unique

                                                10
to the member, as distinguished from the general public,” as a result of the challenged regulatory

scheme. See Stop the Ordinances Please, 306 S.W.3d at 929. Similarly, because the relief

requested, on its face, does not ask the trial court to determine which regulations, if any, qualify

as being sufficiently “relat[ed] to any aspect or phase of the liquefied petroleum gas industry,”

we cannot conclude that the relief requested by TPGA would effectively redress any injury

caused by the City’s regulations related to LP-Gas.

               In conclusion, TPGA has failed to demonstrate the members it represents have a

sufficient personal stake in the controversy such that “the lawsuit would not yield a mere

advisory opinion or draw the judiciary into generalized policy disputes that are the province of

other branches.” Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825, 833 (Tex. App.—

Austin 2010, no pet.) (citing Save Our Springs All., 304 S.W.3d at 871 (concluding that

association members had not established injury distinct from that of general public)). However,

because this defect is a matter of pleading sufficiency, we will reverse and remand to the trial

court to allow TPGA an opportunity to cure the pleading defect, unless one of the City’s

remaining issues requires that we reverse and render judgment in favor of the City. See Tex. R.

App. P. 43.3. Accordingly, we turn to the City’s remaining appellate issues.


Ripeness and Mootness

               Next, we consider the City’s argument that the trial court lacks subject-matter

jurisdiction because TPGA’s claims are not ripe or, alternatively, have become moot. Like

standing, ripeness and mootness doctrines concern whether a justiciable controversy exists

between the parties and serve to bar the court from issuing advisory opinions. Texas Quarter

Horse Ass’n, 496 S.W.3d at 180. Under the ripeness doctrine, a court must “consider whether, at

the time the lawsuit is filed, the facts are sufficiently developed ‘so that an injury has occurred or
                                                 11
is likely to occur, rather than being contingent or remote.’” Id. (quoting Waco Indep. Sch. Dist.

v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000)). Conversely, the mootness doctrine applies

when a justiciable controversy existed between the parties at the time the case arose, but the live

controversy no long exists because of subsequent events. Id.

               In this case, the City’s mootness and ripeness theories turn on an exception to

preemption found in Section 113.054. Specifically, Section 113.054, which is the basis of

TPGA’s preemption claim, states in relevant part:


       A political subdivision may petition the commission’s executive director for
       permission to promulgate more restrictive rules and standards only if the political
       subdivision can prove that the more restrictive rules and standards enhance public
       safety.


Tex. Nat. Res. Code § 113.054. According to TPGA, there is no dispute that the Railroad

Commission has not adopted any formal petition process, and therefore, the City does not have

any “formal opportunity to save its propane regulations and ordinances from preemption under

this [exception].” In the City’s view, the Court cannot enforce the alleged restrictions of Section

113.054 “without also affording the City its statutory protections.” Thus, unless and until a

formal petition process is implemented by the Commission, TPGA’s claims are not ripe.

Similarly, in the alternative, the City asserts that the summary-judgment evidence shows that it

has in fact received informal permission from the Commission to continue to enforce its local

ordinances and regulations related to LP-Gas. The City reasons that this evidence establishes

that the statutory exception to preemption has been met and that, as a result, TPGA’s claims have

become moot.

               The issue of whether the City has met the statutory exception under Section

113.054 by receiving permission from the Commission to promulgate the challenged ordinances

                                                12
and regulations is an issue to be resolved in the lawsuit and goes to the merits of TPGA’s claim.

To the extent the City argues that it has been effectively prevented from obtaining permission

under Section 113.054 by the Commission’s failure to implement a formal process, we conclude

that this has no effect on the trial court’s power to decide the immediate issues in this dispute:

whether the challenged ordinances and regulations are preempted by Section 113.054 and, if so,

whether the ordinances and regulations are excepted from preemption because the City has

obtained permission from the Commission “to promulgate more restrictive rules and standards.”

Finally, the City’s assertion that the evidence establishes that it in fact received permission

from the Commission through informal measures is, in effect, an argument that the evidence

establishes that it has met the statutory exception and that TPGA cannot, as a matter of law,

prevail on the merits of its suit. Because the City’s arguments regarding the statutory exception

go to the merits of the case and not to the court’s power to decide the case, the City’s third issue

on appeal is overruled.


Jurisdiction of Civil Courts over Penal Ordinances

               Finally, we turn to the City’s second appellate issue. In this issue, the City asserts

that the trial court erred in denying its motion for summary judgment for lack of jurisdiction

because the ordinances and regulations at issue are penal in nature and, as a result, the civil trial

court does not possess jurisdiction to determine their validity.

               Texas courts have long recognized that the meaning and validity of a penal statute

or ordinance should ordinarily be determined by courts exercising criminal jurisdiction. See

State v. Morales, 869 S.W.2d 941, 945 (Tex. 1994); City of New Braunfels v. Stop the Ordinances

Please, 520 S.W.3d 208, 212 (Tex. App.—Austin 2017, pet. denied); City of La Marque v.

Braskey, 216 S.W.3d 861, 863 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); Sterling v.
                                                 13
San Antonio Police Dep’t, 94 S.W.3d 790, 793 (Tex. App.—San Antonio 2002, no pet.). This

constraint on civil courts is grounded in both pragmatism, i.e., a need to avoid conflicting

decisions by Texas high courts in Texas’s bifurcated judicial system, and in longstanding

limitations imposed on equity jurisdiction and thus, the “very balance of state governmental

power imposed by framers of the Texas Constitution.” Morales, 869 S.W.2d at 944, 947-48; see

City of New Braunfels, 520 S.W.3d at 212; Ryan v. Rosenthal, 314 S.W.3d 136, 142 (Tex.

App.—Houston [14th Dist.] 2010, no pet.). If the meaning and validity of a criminal statute or

ordinance can be resolved in a criminal proceeding “and vested property rights are not in

jeopardy,” then a court of equity should not intervene. Consumer Serv. All. of Tex., Inc. v. City

of Dallas, 433 S.W.3d 796, 804 (Tex. App.—Dallas 2014, no pet.) (quoting Passel v. Fort Worth

Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex. 1969)). “A person may continue his activities until he

is arrested and then procure his release by showing that the law is void.” Id.

               When a penal statute or ordinance is being enforced and the plaintiff is being

prosecuted or the threat or prosecution is imminent, an equity court will not interfere with

the ordinary enforcement of the statute or ordinance unless (1) the statute or ordinance is

unconstitutional and (2) its enforcement will result in irreparable injury to vested property rights.

Id. This limitation on jurisdiction applies not only in suits where the plaintiff seeks to enjoin

enforcement but also in suits seeking a declaratory judgment as to the constitutionality of the

statute or ordinance. Morales, 869 S.W.2d at 947; Ryan, 314 S.W.3d at 142 (“The considerations

that lead courts of equity to deny injunctive relief against enforcement of the criminal laws apply

with equal force to an action for a declaratory judgment construing a penal statute.”).

               Recently, in City of Laredo v. Laredo Merchants Association, 550 S.W.3d 586

(Tex. 2018), the Texas Supreme Court considered whether the civil courts had jurisdiction in

                                                 14
a suit that challenged an ordinance prohibiting the use of certain non-compliant plastic bags

by vendors. In deciding that the exercise of civil jurisdiction was proper in the suit, the court

recognized that the challenged ordinance (the violation of which constituted a class C misdemeanor,

punishable by a fine of up to $2,000 per violation) was penal in nature and therefore could only

be enjoined or declared void if there was “a threat of irreparable injury to vested property rights.”

Id. at 592 n.28 (citing Morales, 869 S.W.2d at 945). The Texas Supreme Court concluded that

this exception had been met, and therefore the challenge to the penal ordinance could be brought

in civil court, because the ordinance imposed “a substantial per violation fine that effectively

preclude[d] small local businesses from testing the ban’s constitutionality in defense to a criminal

prosecution.” Id. (citing City of Austin v. Austin City Cemetery Ass’n, 28 S.W. 528, 529-30

(Tex. 1894)).

                Here, the dispute on appeal centers on whether the ordinances and regulations at

issue are penal in nature and, if so, whether their enforcement will result in irreparable injury to

vested property rights. The City argues that Sections 104 and 109 of the Fire Code, found in

Chapter 1, provide the enforcement mechanism for any substantive requirements in the Fire Code,

including Chapter 61, and that these provisions make clear that violations of the Fire Code

are punishable as criminal offenses. In response, TPGA asserts that the challenged LP-Gas

regulations are not criminal regulations because they do not, on their face, impose criminal

penalties or criminalize certain conduct.

                Assuming without deciding, however, that the challenged ordinances and

regulations are penal in nature, we conclude that the trial court did not err in determining that it

has jurisdiction over TPGA’s claims. Section 109.4 of the City’s Fire Code provides that the

doing of any act that the Fire Code declares to be unlawful, and for which no specific penalty is

                                                 15
provided, “shall be punished by a fine of not less than $500.00 and no more than $2,000.00”

and that “each day any violation of this code shall continue shall constitute a separate offense.”

Based on this per day-violation fine and on the Texas Supreme Court’s recent decision in City of

Laredo, we must conclude that TPGA members are “effectively preclude[d]” “from testing the

ban’s constitutionality in defense to a criminal prosecution.” See id. Because there is a “threat

of irreparable injury to vested property rights,” TPGA’s suit to declare certain Fire Code

regulations invalid may be brought in civil court. See id. (citing Morales, 869 S.W.2d at 945).

We overrule the City’s second issue on appeal.


                                           CONCLUSION

                Because TPGA failed to plead facts affirmatively demonstrating subject-matter

jurisdiction, we conclude that the trial court erred in denying the City’s motion for summary

judgment for lack of jurisdiction and reverse the trial court’s order. We also conclude, however,

that TPGA’s pleadings do not affirmatively negate the existence of subject-matter jurisdiction.

Accordingly, we remand this cause so that TPGA may have a reasonable opportunity to amend

its pleadings, if possible, to demonstrate that it has standing to bring its suit for declaratory relief.



                                                __________________________________________
                                                Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Kelly and Smith
 Dissenting Opinion by Chief Justice Rose

Reversed and Remanded

Filed: July 18, 2019




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