                               NUMBER 13-17-00234-CV

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


HARKER HEIGHTS
CONDOMINIUMS, LLC,                                                                        Appellant,

                                                v.

CITY OF HARKER HEIGHTS,
TEXAS,                                                                                     Appellee.


                     On appeal from the 146th District Court of
                                Bell County, Texas.


                             MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Hinojosa and Dorsey1
              Memorandum Opinion by Justice Dorsey



        1Retired Thirteenth Court of Appeals Justice J. Bonner Dorsey, assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003 (West, Westlaw through 2017 1st C.S.).
         Appellant Harker Heights Condominiums (HHC) sought an injunction and

temporary restraining order against appellee, the City of Harker Heights (City), to prevent

the City from demolishing HHC’s property. The City filed a plea to the jurisdiction, and

the trial court granted the City’s plea. By two issues, HHC asserts that the trial court’s

order granting the City’s plea was improper because: (1) HHC timely filed suit against

the City, and (2) the City violated the Texas Open Meetings Act. We affirm.

                                        I.       BACKGROUND 2

        HHC owns over four acres of property on Lynn Drive within the city limits of Harker

Heights. This property contains approximately thirty-three condominium units that are

leased to low income residents in need of housing. In February 2012, the City inspected

the property and found defects and conditions that need repair to bring the property into

compliance with the City’s building ordinances. The City provided HHC with an inspection

report to that effect. Subsequently, HHC began to remodel the structures.

        After the City completed a walk-through inspection on March 5, according to HHC’s

original petition, the parties agreed that HHC would repair two units per month over the

course of an eighteen-month period using a contractor registered with the City. On March

22, HHC received a copy of the City’s March 5 field notes. On May 1, HHC delivered to

the City its plan to address the City’s concerns and began some of the repairs. On June

1, HHC informed the City that it was preparing a summary of bids from different plumbing

and electric contractors, but on June 21, the City notified HHC that it would not give HHC




        2 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See id. § 73.001 (West, Westlaw through
2017 1st C.S.).



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any more time to complete the repairs. Two weeks later, HHC applied for permits to begin

repairs on three units, which the City granted.

       In August, the City placed a notice of a public hearing scheduled for August 29 to

discuss the dangerous or substandard conditions at the property. At the hearing, which

HHC attended, the City’s Building Standards Commission (Commission) found the

defects and conditions of the property substandard and a danger to the life, health,

property, and safety of the public. By two orders, the Commission required that HHC

repair, demolish, or remove certain units within sixty days and other units within ninety

days. The orders also provided that if HHC failed to complete the work within the required

time, the City would “demolish the buildings without further notice and charge all

expenses incurred by the City to the owner.” On September 4, the City informed HHC

that it wanted a structural plan of action prepared by an engineer. The City served HHC

with the Commission’s orders on September 15, 2012.

       On September 25, HHC found an engineer to prepare the plan. On November 9,

2012, the City granted HHC two more permit applications. On November 14, the City

disconnected electricity from the property. On November 30, 2012, HHC finalized the

engineering report requested by the City. On December 4, the City notified HHC that

these two units had passed electrical inspection and cleared HHC to begin installing sheet

rock in these units. On December 17, 2012, the City issued a certificate of occupancy on

one of the units. In other words, HHC complied with the Commission’s order for that

particular unit because it was ready for habitation.

       On December 18, 2012, the City Council awarded a demolition contract to a

demolition company in accordance with the Commission’s August 29 orders.              On



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December 21, HHC negotiated with the City to postpone demolition until new plans could

be reviewed, but the City denied this request. On December 26, 2012, the City provided

HHC with feedback regarding the November 30 engineering report.

        HHC filed an “Application and Affidavit for Temporary Restraining Order and

Temporary Injunction” on January 10, 2013. Specifically, HHC sought to temporarily

enjoin the City from demolishing the property. In response, the City filed a plea to the

jurisdiction asserting HHC’s “Application and Affidavit for Temporary Restraining Order

and Temporary Injunction” was untimely because it was filed some eighty days after the

Commission’s orders were issued. See TEX. LOC. GOV’T CODE ANN. § 54.039 (West,

Westlaw through 2017 1st C.S.) (requiring a person aggrieved by an order of a building

and standards commission’s panel to file a verified petition in district court within thirty

calendar days after receiving said order; otherwise, said order becomes final).                               On

January 16, 2013, the district court granted the injunction and issued a temporary

restraining order to enjoin the City from demolishing the property. The parties filed a Rule

11 Agreement in which the City would “cease and desist from directly or indirectly

demolishing any of HHC’s properties . . .” and that prior to any reinstatement of their

demolition order, the City would give HHC seven days’ notice.

        Three years later, HHC amended its petition to include a violation of the Texas

Open Meetings Act and argued that the actions taken by the Commission on August 29,

2012 were void. The City filed its second plea to the jurisdiction on October 27, 2016,

which the trial court heard on February 24, 2017. 3 One month later, the trial court granted

the City’s second plea to the jurisdiction. This appeal followed.


        3 The City did not call any witnesses to the hearing. To support its plea to the jurisdiction, it attached
exhibits to its plea to the jurisdiction for the trial court to consider.

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                             II.    PLEA TO THE JURISDICTION

       By its first issue, HHC asserts that the trial court erred in granting the City’s plea

to the jurisdiction. The City argues that, because HHC failed to appeal the Commission’s

orders within the statutory thirty-day period, the trial court has no jurisdiction over the

Commission’s orders. HHC concedes that “[w]hile it is true that HHC did not file its section

214.0012 appeal within thirty days of being notified of the August 29, 2012 orders of the

[Commission], it is also true that HHC did file its section 214.0012 suit within [thirty] days

of the [City Council’s] December 18, 2012 order to proceed with demolition.” See id. §

214.0012(a) (providing for judicial review of an order of a municipality). The City relies

on chapter 54 of the government code while HHC relies on chapter 214.

A.     Standard of Review

       “A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a

cause of action without regard to whether the claims asserted have merit.” Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s

subject matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of

law; therefore, when the determinative facts are undisputed, we review the trial court’s

ruling on a plea to the jurisdiction de novo. Id. While reviewing a plea to the jurisdiction,

a court should limit itself to the jurisdictional issue at hand and avoid considering the

merits of claims made by the plaintiff. Bland, 34 S.W.3d at 554. “The purpose of a dilatory

plea is not to force the plaintiffs to preview their case on the merits but to establish a

reason why the merits of the plaintiffs’ claims should never be reached.” Id. When, as

here, a plea challenges the existence of jurisdictional facts, in addition to the pleadings,



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the court considers relevant evidence submitted by the parties when necessary to resolve

the jurisdictional issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

The reviewing court should confine itself to the evidence relevant to the jurisdictional

issues raised. Bland, 34 S.W.3d at 555.

B.    Applicable Law

      “Texas law permits municipalities to establish commissions to consider violations

of ordinances related to public safety.” City of Dallas v. Stewart, 361 S.W.3d 562, 565

(Tex. 2012); see TEX. LOC. GOV’T CODE ANN. §§ 54.032–.041 (West, Westlaw through

2017 1st C.S.). “The governing body of the municipality may provide for the appointment

of a building and standards commission to hear and determine cases concerning alleged

violations of ordinances.” TEX. LOC. GOV’T CODE ANN. § 54.033. The City of Harker

Heights created its Commission for that purpose.            See HARKER HEIGHTS, TEX.,

ORDINANCES ch. 33, § 33.80 (2011). The Commission evaluates alleged violations of

municipal ordinances. See id. Before issuing a demolition order, the Commission is

required to give property owners notice and a hearing. See TEX. LOC. GOV’T CODE ANN.

§ 54.035; HARKER HEIGHTS, TEX., ORDINANCES ch. 160, § 160.06(c) (2011).

      A building and standards commission panel may:

       (1) order the repair, within a fixed period, of buildings found to be in
           violation of an ordinance;

       (2) declare a building substandard in accordance with the powers granted
           by this subchapter;

       (3) order, in an appropriate case, the immediate removal of persons or
           property found on private property, enter on private property to secure
           the removal if it is determined that conditions exist on the property that
           constitute a violation of an ordinance, and order action to be taken as
           necessary to remedy, alleviate, or remove any substandard building
           found to exist;

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       (4) issue orders or directives to any peace officer of the state, including a
           sheriff or constable or the chief of police of the municipality, to enforce
           and carry out the lawful orders or directives of the commission panel;

       (5) determine the amount and duration of the civil penalty the municipality
           may recover as provided by Section 54.017.

TEX. LOC. GOV’T CODE ANN. § 54.036. The local government code provides for judicial

review of any decision of a building and standards commission panel, but the “district

court’s review shall be limited to a hearing under the substantial evidence rule.” City of

Dallas, 361 S.W.3d at 566; see TEX. LOC. GOV’T CODE ANN. §§ 54.039(f). To appeal an

order of a building and standards commission, an aggrieved party must file a verified

petition in district court within thirty days of the commission’s order. TEX. LOC. GOV’T CODE

ANN. § 54.039(a). If no appeals are taken from the decision of the commission panel

within the required time period, the decision of the commission panel is final and binding.

Id. § 54.041.

       Section 214.0012 of the local government code, much like section 54.039, requires

an aggrieved party by an order of a municipality issued under section 214.001 to file a

petition in district court within thirty days. Id. § 214.0012. Section 214.001 authorizes a

municipality to, by ordinance, require the vacation, relocation of occupants, securing,

repair, removal, or demolition of a building that is substandard or unfit for human

habitation. Id. § 214.001(a). Thus, a building and standards commission is a method

through which a municipality may seek to enforce ordinances passed under the authority

of chapter 214.    See Whallon v. City of Houston, 462 S.W.3d 146, 156 (Tex. App.—

Houston [1st Dist.] 2015, pet denied):

C.     Discussion



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      The City established its Commission pursuant to its authority under section 54.033

of the local government code to review ordinance violations. See id. § 54.033. Here,

because HHC is challenging an order from the Commission rather than a municipal

ordinance, section 54.039 is the applicable statute for a party seeking judicial review of

those orders. See id. §§ 54.039(a), 214.0012(a) (West, Westlaw through 2017 1st C.S.).

      On August 29, 2012, the Commission held a hearing regarding the dangerous or

substandard conditions at HHC’s property, which HHC attended. After hearing evidence

presented by the City and HHC, the Commission issued two orders, signed on August

29, 2012, which provided in relevant part:

      Unit 201 B; Unit 211 C; Unit 211 D; Unit 301. . . are substandard and must
      be demolished, repaired, or removed within 60 days . . . UNITS 220; 230;
      240; 300; 311; 320; 321; 331; 341; 350; 360; 361; 400; 401; 431; 441; 460;
      451-461; 470; 471. . . are substandard and are to be demolished, repaired,
      or removed within 90 days. If the work to repair, demolish, or remove the
      buildings is not completed within the period of time referenced in the
      preceding paragraph, the City of Harker Heights may demolish the buildings
      without further notice and charge expenses incurred by the city to the
      owner. If the owner does not reimburse the city for its expenses, the city
      will place a lien upon the property for the amount owed . . . .

The City served these orders on HHC on September 15, 2012. Thus, HHC needed to

repair, demolish, or remove four units within sixty days and the remaining units within

ninety days to prevent demolition by the City. Yet, HHC did not comply with the orders.

Because HHC did not comply with the orders, the City proceeded to enforce demolition

“without further notice.” Thus, the City Council awarded a contract to a demolition

company on December 12, 2012.

      According to HHC, the award of this contract represented “the city’s latter decision

to proceed with demolition” and was “a final decision that had been reached by the City.”

In other words, HHC argues their request for judicial review was within the thirty-day

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deadline period pursuant to section 214.0012 of the local government code because the

City Council’s resolution was “the City’s actual decision on the matter.”          See id.

§ 214.0012. However, because the challenged orders are decisions of the Commission

rather than a municipal ordinance, here chapter 214 is inapplicable. See id. §§ 54.039(a)

(providing for judicial review from a decision of a Commission panel), 214.0012(a)

(providing for judicial review from an order of a municipality). Although HHC suggests

that the City Council’s contract award was an “order,” the City Council did not determine

whether the property was substandard, dangerous, or in violation of city ordinances.

Rather, it is the Commission—as a quasi-judicial board—that makes such determinations.

See id. § 54.036. The City Council merely awarded a contract to a demolition company

in the form of a resolution; it did not issue an order declaring the properties substandard.

       Moreover, HHC claims the Commission’s orders were illegal because if enacted,

“they would authorize the taking, damaging, or destruction of HHC’s property without the

City first paying HHC adequate compensation.” However, HHC did not seek judicial

review of the orders despite the alleged illegality of the orders. Instead on January 10,

2013, almost five months later, HHC filed “Application and Affidavit for Temporary

Restraining Order and Temporary Injunction” in district court to temporarily enjoin the City

from proceeding with the demolition process.          The “Application and Affidavit for

Temporary Restraining Order and Temporary Injunction” was nothing more than a

request to enjoin the City from demolishing HHC’s property and did not contest the

“illegality” or seek judicial review of the Commission’s orders as required by section

54.039.




                                             9
       Nonetheless, even if we assume that the “Application and Affidavit for Temporary

Restraining Order and Temporary Injunction” was a petition for review of the

Commission’s orders rather than a suit for temporary injunctive relief, it was not timely

filed. Because HHC did not seek judicial review of the Commission’s final orders within

thirty days and did not avail itself of the opportunity for district court review, the decision

of the Commission became final and binding. See id. § 54.041; City of Lubbock v. Corbin,

942 S.W.2d 14, 23 (Tex. App.—Amarillo 1996, writ denied) (finding that “the Corbins were

bound by the Housing Standards Commission order, and could not allege injury as a

result of the commission’s finding that their house was substandard” because “their failure

to appeal resulted in a final order”). Therefore, the trial court had no jurisdiction to review

the Commission’s orders. Accordingly, we overrule HHC’s first issue.

                                    III.   OPEN MEETINGS ACT

       In its second issue HHC argues that as a matter of law, the City violated section

551.041 of Texas Open Meetings Act because the agenda for the August 29, 2012

meeting only notified the public that the Commission would discuss one manufactured

residential structure and did not notify the public that the Commission would take action

on over twenty residential structures. See TEX. GOV’T CODE ANN. § 551.041 (West,

Westlaw through 2017 1st C.S.). In response, the City argues that the trial court lacks

jurisdiction to entertain HHC’s open meetings act claim because it serves as a collateral

attack on the Commission’s orders. We agree with the City.

       Section 54.039 of the local government code expressly states that orders of a

City’s building and standard commission are final if not petitioned in district court for

judicial review within thirty days. See id. § 54.039. HHC’s failure to appeal as specified



                                              10
by the statute resulted in a final order, and the trial court had no jurisdiction to review the

merits of the orders. The orders were not subject to collateral attack. See City of Dallas,

361 S.W.3d at 580 (“A party cannot collaterally attack what she chooses not to challenge

directly.”)

        Because HHC never invoked the jurisdiction of the trial court by requesting judicial

review under the statute, HHC cannot now invoke the jurisdiction of the trial court by

asserting an open meetings act violation to collaterally attack the Commission’s binding

orders. See Patel v. City of Everman, 361 S.W.3d 600, 601 (Tex. 2012) (per curiam)

(holding that Patel was collaterally estopped from now suing because he failed to seek

judicial review of a Commission’s order within the thirty-day period). We overrule HHC’s

second issue.

                                     IV.    CONCLUSION

        We conclude the trial court correctly held it did not have jurisdiction. The judgment

is AFFIRMED.


                                                          J. BONNER DORSEY,
                                                          Justice



Delivered and filed the
28th day of March, 2019.




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