                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-18-00181-CV


IN RE PHILIP T. PIXLER                                                   RELATOR


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                           ORIGINAL PROCEEDING
                        TRIAL COURT NO. CV17-10-820

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                                    OPINION

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                                 I. INTRODUCTION

      After Real Party in Interest City of Newark sued Relator Philip T. Pixler in

district court for injunctive relief, to enforce penalties that were administratively

assessed against him, to recover civil penalties for violating the City’s junked-

vehicle ordinance, and for violating the Texas Uniform Fraudulent Transfers Act

(TUFTA), Pixler filed a mandamus petition in this court, asking us to order the

district court to dismiss the City’s lawsuit for want of subject-matter jurisdiction.
All but one of the City’s claims are jurisdictionally sound: the administrative-

penalties claim. We therefore will grant in part and deny in part Pixler’s petition.

                                  II. BACKGROUND

      Pixler operates a business, Tim’s Auto Tech, on a .54-acre tract located

within the City. By letter dated March 31, 2017, the City notified Pixler that the

property was in violation of the City’s ordinances related to junked vehicles 1 and

to using parking spaces,2 stating in part,

      It is apparent that you have exceeded the parking capacity of your
      property. You have also resorted to parking your overflow vehicles
      on the Grace Baptist Church parking lot due to your congested
      parking lot. Vehicles are also being parked haphazardly on your
      property, sometimes two and three deep. At other times, vehicles
      are being parked adjacent / parallel to FM 718. When this happens,
      it blocks and obstructs the view for westbound motorists exiting
      Hudson Street onto or across FM 718, which can be a traffic safety
      issue.

      On May 5, 2017, the City filed eight complaints in municipal court involving

eight different vehicles located on the property. Several weeks later, at a hearing

on the complaints, Pixler agreed to submit the matters to an administrative



      1
        Ordinance section 8.05.003(a) declares that a junked vehicle on private or
public land that is visible from a public place or a public right-of-way is a public
nuisance. Newark, Tex., Code of Ordinances ch. 8, art. 8.05.003(a) (2017).
Subsection (b) provides that a person commits an offense by permitting a junked
vehicle “to be parked, left, or maintained on personal real property.” Id., art.
8.05.003(b).
      2
       Zoning ordinance section 26.10 prohibits off-street parking and loading
spaces from being used “for storage or display of boats, trailers, campers, motor
vehicles or other goods, materials, products for sale.” Newark, Tex., Code of
Ordinances ch. 14, exhibit A, § 26.10 (2017).

                                     2
board.3   The administrative board subsequently determined that Pixler had

violated the City’s junked-vehicle ordinance as to each of the eight vehicles, and

it assessed an administrative penalty in the amount of $1,000 for each violation,

for a total of $8,000. Pixler did not appeal the administrative board’s penalties

but instead filed a challenge to the municipal court’s subject-matter jurisdiction

and a motion for summary judgment, neither of which the municipal court

appears to have ruled on.

      In early October 2017, the City filed a petition in district court seeking (1) to

enjoin Pixler from further violating its ordinances, (2) to enforce and to collect the

$8,000 in administrative penalties, and (3) to impose separate civil penalties

against Pixler for violating its ordinances. Pixler answered the City’s suit, filed

counterclaims against numerous employees and agents of the City, and

challenged the district court’s subject-matter jurisdiction to consider the City’s

claims. The district court subsequently granted the City’s jurisdictional plea and

dismissed Pixler’s counterclaims against the counter-defendants. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(e) (West 2011).

      In March 2018, the City filed a motion for partial summary judgment on its

claims for permanent injunctive relief, to recover the $8,000 in administrative

penalties, and to collect civil penalties. The trial court granted the City’s motion


      3
       Pixler now contends that he thought the purpose of the hearing was to
determine only whether the vehicles were “junk” vehicles, but he fails to explain
what effect, if any, his purported misperception has on the district court’s subject-
matter jurisdiction.

                                      3
but reserved a determination on the amount of the penalties for a later date. A

few weeks later, the City filed an amended petition alleging a claim for violation of

the TUFTA and a pleading again seeking civil penalties.4

      On May 7, 2018, the trial court signed an order assessing civil penalties

against Pixler in the amount of $80,000—$1,000 per day for 80 days. The City’s

TUFTA claim is the lone outstanding claim.

                        III. SUBJECT-MATTER JURISDICTION

      In what we construe as his only issue, Pixler argues that the district court

lacks subject-matter jurisdiction over the City’s lawsuit because, regarding the

proceedings against him for violating the junked-vehicles ordinance, the City

improperly converted what he contends is a criminal case to an administrative

matter, where a final adjudication was rendered against him without any statutory

authority and in violation of his right to a jury trial. Directing us to numerous

statutes and ordinances, the City responds that the district court has subject-

matter jurisdiction.

      Pixler’s petition requires us to construe statutes.      When construing a

statute, our primary objective is to ascertain and give effect to the legislature’s

intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek that intent

first and foremost in the statutory text.   Lexington Ins. Co. v. Strayhorn, 209
      4
        Regarding its TUFTA claim, the City explained that Pixler had transferred
all but one of his real properties into investment trusts controlled by his spouse
and him just days before he accrued a substantial debt—the summary judgment
ordered by the trial court. The assets totaled approximately $837,558. After the
transfers, only $600 remained in Pixler’s name.

                                     4
S.W.3d 83, 85 (Tex. 2006). We rely on the plain meaning of the text, unless a

different meaning is supplied by legislative definition or is apparent from context,

or unless such a construction leads to absurd results.        City of Rockwall v.

Hughes, 246 S.W.3d 621, 625‒26 (Tex. 2008); see Tex. Gov’t Code Ann.

§ 311.011(a) (West 2013).      We apply the same principles used to construe

statutes to construe municipal ordinances. BCCA Appeal Grp., Inc. v. City of

Houston, 496 S.W.3d 1, 20 (Tex. 2016).

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Olshan Found. Repair Co., 328

S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992) (orig. proceeding).

A.    The City’s reasons to deny the petition

      We first consider several grounds that the City raised to outright deny

Pixler’s petition. The City argues that mandamus relief is improper because the

record does not contain any order or other document showing that the district

court ruled on Pixler’s challenge to its subject-matter jurisdiction.    But in his

response to the City’s motion for partial summary judgment, Pixler informed the

district court—under the heading “Plea to the Jurisdiction”—that he had

previously filed a jurisdictional challenge that was never ruled on. We can safely

infer that in granting the City summary judgment, the district court considered,

and rejected, Pixler’s challenge, and requiring the court to enter a separate order



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at this point would be futile. See In re Le, 335 S.W.3d 808, 814‒15 (Tex. App.—

Houston [14th Dist.] 2011, orig. proceeding) (observing futility exception to

general rule requiring order).

      Moreover, while a request for action by the trial court and a refusal of that

request is generally a predicate to mandamus relief, In re Perritt, 992 S.W.2d

444, 446 (Tex. 1999) (orig. proceeding), a lack of subject-matter jurisdiction is

fundamental error that can be raised anytime and that an appellate court must

review whenever it appears. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 443 (Tex. 1993) (“Subject matter jurisdiction is essential to the

authority of a court to decide a case.”). The original-proceeding context is no

exception; mandamus is generally proper if a trial court lacks subject-matter

jurisdiction. In re St. Thomas High Sch., 495 S.W.3d 500, 514 (Tex. App.—

Houston [14th Dist.] 2016, orig. proceeding).

      The City and the counter-defendants also argue that we should deny the

petition because Pixler has an adequate remedy by appeal, but any action taken

by a trial court without subject-matter jurisdiction is void, and mandamus will

issue to correct a void order, regardless of whether the relator has an adequate

remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding); In re Office of Att’y Gen. of Tex., 264 S.W.3d 800, 805 (Tex.

App.—Houston [1st Dist.] 2008, orig. proceeding).




                                    6
      Finally, in a letter brief, the City seems to suggest that the district court has

subject-matter jurisdiction because Pixler was the one who requested the

administrative hearing and appeared and participated in it, but the issue here is

subject-matter jurisdiction, which can never be conferred by consent or waiver,

not personal jurisdiction, which a party waives by generally appearing.             See

Trenz v. Peter Paul Petrol. Co., 388 S.W.3d 796, 800 (Tex. App.—Houston [1st

Dist.] 2012, no pet.). The same holds true for the City’s contention that Pixler

“affirmatively invok[ed]” the district court’s subject-matter jurisdiction by filing

counterclaims.    While it is certainly true that a party must allege facts that

affirmatively demonstrate a court’s jurisdiction to hear the claim, see Tex. Ass’n

of Bus., 852 S.W.2d at 446, a party has no power, by its allegations or otherwise,

to vest a court with subject-matter jurisdiction when none exists.           See Fed.

Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (Tex.

1943) (“Jurisdiction of the subject matter exists by operation of law only . . . .”).

B.    The City’s claims

      Both sides employ a rather broad-brushed approach to the issue. We

separately assess each of the City’s claims for subject-matter jurisdiction.

      1.     Injunctive relief

      Local government code chapter 54 contains provisions relating to the

enforcement of municipal ordinances. Tex. Loc. Gov’t Code Ann. §§ 54.001‒

.044 (West 2008 & Supp. 2017). Subchapter B specifically addresses municipal



                                       7
health and safety ordinances. Id. §§ 54.012‒.020. Thereunder, section 54.012

allows a municipality to bring a civil action to enforce an ordinance “relating to the

preservation of public health” and “for zoning that provides for the use of land.”

Id. § 54.012(2), (3). Section 54.013 provides that jurisdiction and venue of an

action under subchapter B of chapter 54 “are in the district court or the county

court at law of the county in which the municipality bringing the action is located.”

Id. § 54.013. And section 54.016 permits the municipality to obtain injunctive

relief against the owner of the premises that is allegedly in violation of the

ordinance.5 Id. § 54.016.

      Code of Ordinance section 8.05.003(a) declares that the presence of any

junked vehicle that is visible from a public place is “detrimental to the safety and

welfare of the public.” Newark, Tex., Code of Ordinances ch. 8, art. 8.05.003(a).

Section 26.10 of the City’s zoning ordinance, which addresses off-street parking

spaces, provides for the use of land.6 Newark, Tex., Code of Ordinances ch. 14,

exhibit A, § 26.10.

      Therefore, local government code sections 54.012, 54.013, and 54.016

combined (1) to authorize the City to file the underlying civil action in the district


      5
      The City also relies on local government code section 211 to support its
request for injunctive relief. See Tex. Loc. Gov’t Code Ann. § 211.012(c)(2)
(West Supp. 2017).
      6
        The City contends, and the district court concluded in its summary-
judgment order, that the City’s junked-vehicle and parking-space ordinances also
relate to other matters contained in local government code section 54.012. See
Tex. Loc. Gov’t Code Ann. § 54.012(1), (6), (7).

                                      8
court for the purpose of enforcing and enjoining the violation of its junked-vehicle

and off-street parking ordinances and (2) to vest the district court with subject-

matter jurisdiction over the claim.       We overrule Pixler’s issue insofar as he

challenges the district court’s subject-matter jurisdiction over the City’s claim for

injunctive relief.

       2.     Civil penalties

       The City’s claim for civil penalties is different than its claim to recover the

administrative penalties that were assessed against Pixler by the administrative

board. Local government code section 54.017(a) provides as follows:

       (a)   In a suit against the owner or the owner’s representative with
       control over the premises, the municipality may recover a civil
       penalty if it proves that:

              (1)   the defendant was actually notified of the provisions of
              the ordinance; and

              (2)    after the defendant received notice of the ordinance
              provisions, the defendant committed acts in violation of the
              ordinance or failed to take action necessary for compliance
              with the ordinance.

Tex. Loc. Gov’t Code Ann. § 54.017(a). Subsection (b) limits the penalty to no

more than $1,000 per day. Id. § 54.017(b). The City alleged in its petition that

Pixler continued to violate its junked vehicle and off-street parking ordinances

even after being warned of the violations. The district court has subject-matter

jurisdiction over the City’s claim for civil penalties. We overrule Pixler’s issue




                                      9
insofar as he challenges the district court’s subject-matter jurisdiction over the

City’s claim for civil penalties.

       3.     TUFTA

       The City alleged that Pixler, with the intent to hinder, delay, or defraud the

City, violated the TUFTA by transferring real property valued at over $800,000 to

one or more entities that he controls shortly before accruing a debt—the

summary judgment ordered by the district court. See Tex. Bus. & Comm. Code

Ann. § 24.005 (West 2015). District courts have original jurisdiction over a civil

matter in which the amount in controversy is more than $500, exclusive of

interest. Tex. Gov’t Code Ann. § 24.007(b) (West Supp. 2017). The district court

has subject-matter jurisdiction over the City’s TUFTA claim. We overrule Pixler’s

issue insofar as he challenges the district court’s subject-matter jurisdiction over

the City’s TUFTA claim.

       4.     Administrative penalties

       The City relies on transportation code section 683.0765 and local

government code section 54.044 to support its assertion that the district court

has subject-matter jurisdiction over the City’s claim to enforce the $8,000 in

penalties that were administratively assessed against Pixler by the administrative

board.

       Transportation code chapter 683 addresses abandoned motor vehicles,

and subchapter E of that chapter specifically addresses junked vehicles. Tex.



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Transp. Code Ann. §§ 683.071‒.078 (West 2011 & Supp. 2017).                    The City

argues, and we have no reason to dispute, that it passed its junked-vehicle

ordinance—Ordinance No. A-241, Article 8.05—“pursuant to Chapter 683.” See

id. § 683.074(a) (“A municipality or county may adopt procedures that conform to

this subchapter for the abatement and removal from private or public property or

a public right-of-way of a junked vehicle . . . as a public nuisance.”). Indeed,

consistent with subchapter E, the City’s junked-vehicle ordinance contains

provisions related to declaring junked vehicles a public nuisance, to notice of an

ordinance violation, and to a hearing on the alleged violation.7                See id.

§§ 683.072, .075, .076; see also Newark, Tex., Code of Ordinances ch. 8, arts.

8.05.003, .005, .006.

      Significantly, the procedures that the City adopted to enforce and

prosecute its junked-vehicle ordinance take place in the “municipal court,” before

a “judge,” and during a “trial.” For example, section 8.05.006, which addresses

requests for a hearing, provides that the request “shall be made to the clerk of

the municipal court of the city . . . , to set a date and time to appear before the

judge of the municipal court for a trial to determine whether the person is in

violation of this article.” Newark, Tex., Code of Ordinances ch. 8, art. 8.05.006.

And section 8.05.008 provides that “[t]he judge of the municipal court shall hear

any case brought before the court pursuant to this article and shall determine

whether the defendant is, in fact, in violation of this article.” Id. art. 8.05.008(a).
      7
       The ordinance even cites chapter 683.

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      In addition to enforcing a junked-vehicle ordinance via the procedures

established by the sections that address notice and a hearing, subchapter E of

chapter 683 permits a municipality to alternatively enforce an ordinance via an

administrative process. Section 683.0765 provides,

      A municipality by ordinance may provide for an administrative
      adjudication process under which an administrative penalty may be
      imposed for the enforcement of an ordinance adopted under this
      subchapter.     If a municipality provides for an administrative
      adjudication process under this section, the municipality shall use
      the procedure described by Section 54.044, Local Government
      Code.

Tex. Transp. Code Ann. § 683.0765 (emphasis added). Local government code

section 54.044(a) provides,

      (a)    As an alternative to the enforcement processes described by
      this subchapter, a municipality by ordinance may adopt a procedure
      for an administrative adjudication hearing under which an
      administrative penalty may be imposed for the enforcement of an
      ordinance described by Section 54.032 or adopted under Section
      214.001(a)(1).

Tex. Loc. Gov’t Code Ann. § 54.044(a).        Section 54.044 goes on to set out

various provisions relating to notice, a hearing, an order, and an appeal that

apply when the alternative administrative process is utilized. Id. § 54.044(d), (h),

(k). And section 54.044(j) allows a municipality to enforce an order issued under

the subsection “by filing a civil suit for the collection of a penalty assessed

against the person.” Id. § 54.044(j)(1). The City contends that the district court

has subject-matter jurisdiction under the authority of section 54.044(j).




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      In one of its filings, the City maintained that subchapter E of chapter 683

“allows an administrative adjudication process under the procedures described

by Section 54.044,” but contrary to the City’s imprecise construction, section

683.0765 does not just allow a municipality to alternatively enforce its junked-

vehicle ordinance via an administrative adjudication process; rather, section

683.0765 permits a municipality to utilize an alternative administrative process

only if it first adopts, by ordinance, provisions for such procedures. Tex. Transp.

Code Ann. § 683.0765. We have scoured the City’s ordinances, and while its

junked-vehicle ordinance contains enforcement provisions relating to notice and

a hearing before a municipal court (detailed above), we could find no provisions

in which the City had adopted any kind of alternative administrative process like

the one contained in section 54.044. In other words, although the City no doubt

passed its junked-vehicle ordinance “pursuant to Chapter 683,” it clearly stopped

short of adopting an administrative process to alternatively enforce the

ordinance.

      Concerned that we could be overlooking something, we requested “that

the City submit additional briefing that directs the court to where, by ordinance,

the City has adopted an administrative adjudication process like the one

described in local government code section 54.044.”       The City responded in

relevant part as follows:

      Ordinance No. A-375 provides that the municipal court “has the
      jurisdiction provided by Chapter 30 of the Government Code for


                                    13
      municipal courts of record.” Chapter 30 of the Government Code, in
      turn, provides that a municipality may confer civil jurisdiction “for the
      purpose of enforcing municipal ordinances enacted under . . .
      Subchapter E, Chapter 683, Transportation Code.” And Subchapter
      E of Transportation Code Chapter 683 includes the authority to
      provide for “an administrative adjudication process under which an
      administrative penalty may be imposed for the enforcement of an
      ordinance adopted under this subchapter.” Thus, by adopting an
      ordinance conferring Government Code Chapter 30 jurisdiction on
      the Newark Municipal Court, the City has also conferred civil
      jurisdiction on the Municipal Court to provide for an administrative
      adjudication process under Subchapter E of Transportation Code
      Chapter 683. [citations omitted]

      We fail to see how by designating the municipal court as a municipal court

of record, the City simultaneously established, by ordinance, an alternative

administrative process for purposes of enforcing its junked-vehicle ordinance.

The same holds true for the City’s reliance on government code section

30.00005(d)(1), which provides that “[t]he governing body of a municipality by

ordinance may provide that the court has” “civil jurisdiction for the purpose of

enforcing municipal ordinances enacted under . . . Subchapter E, Chapter 683.”

Tex. Gov’t Code Ann. § 30.00005(d)(1) (West Supp. 2017). That the municipal

court has been granted civil jurisdiction so that it may provide for an

administrative adjudication process by ordinance does not mean that the City

actually has passed an ordinance that, in the words of section 683.0765,

“provide[s] for an administrative adjudication process under which an

administrative penalty may be imposed.” Tex. Loc. Gov’t Code Ann. § 683.0765.

Contrary to our well-established rules of statutory construction, the City’s



                                     14
argument renders the language of transportation code section 683.0765

meaningless while reading far too much into government code section

30.00005(d)’s.

      Because the City utilized an alternative administrative process like the one

set out in local government code section 54.044 without having adopted an

ordinance permitting it to do so, it follows that (1) the administrative board lacked

the authority to assess $8,000 in administrative penalties against Pixler,

rendering the penalty void, and (2) section 54.044(j) provides no authority for the

City to enforce the penalty in the district court, extinguishing the district court’s

statutorily derived subject-matter jurisdiction to consider the claim. Accordingly,

we sustain Pixler’s issue insofar as it challenges the district court’s subject-matter

jurisdiction over the City’s claim to enforce the $8,000 in administrative penalties.

                                  IV. CONCLUSION

      Having overruled part of Pixler’s only issue, we deny his petition insofar as

he challenges the district court’s subject-matter jurisdiction over the City’s claims

for injunctive relief, to recover civil penalties, and for violating the TUFTA.

Having sustained part of Pixler’s issue, we conditionally grant Pixler’s petition

insofar as he challenges the district court’s subject-matter jurisdiction over the

City’s claim to enforce the administrative penalties. Accordingly, we direct the

district court to set aside only the portion of its March 27, 2018 “Summary

Judgment Order and Permanent Injunction” in which it ordered “that, pursuant to



                                      15
Texas Local Government Code § 54.044, the [City] is entitled to enforcement of

the administrative penalties assessed against [Pixler] totaling $8,000.” A writ will

issue only if the district court fails to do so.8

       This Court’s June 5, 2018 order staying the district court proceedings in

cause number CV17-10-820, styled City of Newark, William Andrew Messer,

Mack Reinwand, Ashley D. McSwain, Rene Culp, Pamela Thompson, Taylor

Burton, and Jeanine M. Inman v. Philip T. Pixler, pending in the 271st District

Court of Wise County, Texas, is hereby lifted.




                                                    /s/ Bill Meier
                                                    BILL MEIER
                                                    JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.

DELIVERED: July 26, 2018




       8
        We deny Pixler’s request to sanction the City in the amount of $80,000.

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