AFFIRM, and Opinion Filed February 20, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-00765-CV

     KINGVISION PAY-PER-VIEW, LTD., GARDEN CITY BOXING CLUB, INC.,
               AND ENTERTAINMENT BY J&J, INC., Appellants
                                  V.
                    DALLAS COUNTY, TEXAS, Appellee

                      On Appeal from the 116th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 07-11471-F

                            MEMORANDUM OPINION
                        Before Justices Francis, Lang-Miers, and Lewis
                                Opinion by Justice Lang-Miers
       Appellants KingVision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and

Entertainment by J&J, Inc. appeal from an order granting a plea to the jurisdiction and motion to

dismiss filed by appellee Dallas County, Texas. We affirm.

                                         BACKGROUND

       In 2001 and 2003 appellants sued multiple defendants alleging that they illegally

intercepted and aired pay-per-view boxing matches at various establishments. After obtaining

judgments against the defendants, appellants delivered writs of execution to Michael Dupree,

who at the time was the constable of Dallas County Precinct No. 5. After Dupree failed to

perform his duties with respect to the writs, appellants filed post-judgment motions to recover

the full amount of the judgments from Dupree and his surety pursuant to former sections 34.064
and 34.065 of the Texas Civil Practice and Remedies Code, which were in effect at the time. 1 As

a result of those motions appellants obtained eight judgments against Dupree totaling over

$1 million. Appellants then petitioned the trial court in this case to issue a writ of mandamus

directing the County to pay the judgments obtained against Dupree, and to raise taxes if

necessary to satisfy the judgments. In response the County filed a plea to the jurisdiction and

motion to dismiss arguing that (1) the judgments at issue were against Dupree in his personal

capacity, (2) Dupree could petition the County Commissioners Court for indemnification, but

appellants lacked standing to enforce the judgments against the County, and (3) the judgments

did not waive the County’s sovereign immunity. Conversely, appellants moved for summary

judgment and argued that former sections 34.064 and 34.065 are a “legislative waiver of

immunity.” At the hearing on the County’s motion, appellants’ counsel also argued that the

County had waived its claim of immunity because in its motion it used the term “sovereign

immunity,” which applies to the state and its agencies, rather than the term “governmental

immunity,” which applies to counties and other political subdivisions. After the hearing the trial

court granted the County’s plea to the jurisdiction and dismissed appellants’ lawsuit.

                                                           ANALYSIS

          In one issue on appeal appellants argue that the trial court erred when it granted the

County’s plea to the jurisdiction. In support, appellants raise two main arguments: (1) appellants

have standing to bring the suit, and (2) former civil practice and remedies code sections 34.064

and 34.065 waive the County’s governmental immunity. We need only address appellant’s

second argument because our conclusion regarding the County’s immunity is dispositive of this

appeal.


     1
      Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3274 (amended 2007) (current version at TEX. CIV. PRAC. &
REM. CODE ANN. §§ 34.064, 34.065 (West 2008)).



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       Under the doctrine of governmental immunity counties and other political subdivisions of

the state cannot be sued without their consent. See City of Houston v. Williams, 353 S.W.3d 128,

134 (Tex. 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006)).

Governmental immunity has two components: immunity from liability, which bars enforcement

of a judgment against a governmental entity, and immunity from suit, which bars suit against the

entity altogether. See Tooke, 197 S.W.3d at 332.

       “Waiver of a county’s immunity from suit requires a clear and unambiguous expression

of the Legislature, either by statute or resolution.” Webb Cnty. v. Khaledi Props., Ltd., No. 04-

12-00251-CV, 2013 WL 3871060, at *2 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem.

op.); see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 n.6 (Tex. 2003) (listing

statutes expressly waiving immunity from suit). The plaintiff bears the burden to allege a valid

waiver of immunity. Dallas Cnty. v. Logan, No. 05-11-00480-CV, 2014 WL 69038, at *6 (Tex.

App.—Dallas Jan. 9, 2014, no pet. h.).

        Whether a statute waives governmental immunity is a question of law, which we review

de novo. See Harris Cnty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.]

2004, no pet.) (statutory waiver of immunity is question of law); Tex. Mun. Power Agency v.

Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007) (“Statutory construction is a question of

law, which we review de novo.”). We construe statutes waiving sovereign and governmental

immunity strictly. See City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006).

       With these standards in mind, we begin by examining the text of former civil practice and

remedies code sections 34.064 and 34.065 in effect at the time. Those sections stated as follows:

       34.064 Improper Return of Writ

       If an officer neglects or refuses to return a writ of execution as required by law or
       makes a false return on a writ of execution, the officer and his sureties are liable
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           to the person entitled to receive the money collected on the execution for the full
           amount of the debt, plus interest and costs. The total amount is recoverable on
           motion of the plaintiff filed with the court that issued the writ, following five
           days’ notice.

           34.065 Failure to Levy or Sell

           If an officer fails or refuses to levy on or sell property subject to execution and the
           levy or sale could have taken place, the officer and his sureties are liable to the
           party entitled to receive the money collected on execution for the full amount of
           the debt, plus interest and costs. The total amount is recoverable on motion of the
           party filed with the court that issued the writ, following five days’ notice to the
           officer and his sureties. 2

           To support their argument that former sections 34.064 and 34.065 waived the County’s

immunity from suit, appellants rely on Johnson Roofing, Inc. v. Discount Rental, Inc., No. 10-10-

00239-CV, 2010 WL 3943780 (Tex. App.—Waco Oct. 6, 2010, pet. denied) (mem. op.). That

case, however, was not a suit against a county and did not address a county’s immunity from

suit. As a result, it does not support appellant’s argument. Appellants also cite generally to our

decision in Freeman v. Wirecut E.D.M., 159 S.W.3d 721 (Tex. App.—Dallas 2005). Like

Johnson Roofing, however, Freeman was not a suit against a county and does not stand for the

proposition that a county is amenable to suit under former sections 34.064 and 34.065.

           Appellants also argue that governmental immunity does not bar petitions for writs of

mandamus against a political subdivision to enforce judgments obtained against its officers. To

support this argument, appellants rely on Delta County Levee Improvement District v. Leonard,

516 S.W.2d 911 (Tex. 1975), which arose from a levee improvement district’s failure to pay

principal and interest on bonds issued for the construction and maintenance of levees and other

improvements. The underlying judgments in that case, however, were against the district itself,



     2
        Under the current version of section 34.064, an officer who refuses to file or amend a return of writ after receiving notice is subject to
sanctions for contempt. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.064 (West 2008). And under the current version of section 34.065, if an
officer fails or refuses to levy on or sell property subject to execution, and other enumerated conditions are met, the officer and his sureties are
liable to the judgment creditor only for actual damages suffered. See id. § 34.065.



                                                                       –4–
not against an officer. As a result, Leonard does not support appellants’ argument that the

judgments against Dupree waived the County’s governmental immunity in this case.

       Relying on City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), appellants also

argue for the first time in their reply brief that the judgments against Dupree fall within the ultra

vires exception to governmental immunity. As a general rule we do not consider arguments

raised for the first time in a reply brief. See Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795,

803 n.5 (Tex. App.—Dallas 2011, no pet.). But even if it had been timely raised, appellants’

ultra vires argument does not support their claim that the County’s immunity was waived in this

case. The ultra vires exception to immunity applies when a plaintiff seeks declaratory relief

against a government official who allegedly acts without legal or statutory authority. See Bd. of

Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228, 234 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). In those cases, however, the government entity maintains immunity from

suit and is not a proper defendant. Id.

       In short, former sections 34.064 and 34.065 do not clearly and unambiguously waive the

County’s immunity from suit and the authorities appellants rely upon do not apply to the facts of

this case. As a result, we conclude that appellants did not meet their burden to allege a valid

waiver of the County’s governmental immunity from suit.

                                           CONCLUSION

       We resolve appellants’ issue against them and affirm the trial court’s order granting the

County’s amended plea to the jurisdiction and dismissing appellants’ lawsuit.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE
120765F.P05
                                                –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

KINGVISION PAY-PER-VIEW, LTD.,                      On Appeal from the 116th Judicial District
GARDEN CITY BOXING CLUB, INC.,                      Court, Dallas County, Texas
AND ENTERTAINMENT BY J&J, INC.,                     Trial Court Cause No. 07-11471-F.
Appellant                                           Opinion delivered by Justice Lang-Miers.
                                                    Justices Francis and Lewis participating.
No. 05-12-00765-CV        V.

DALLAS COUNTY, TEXAS, Appellee

       In accordance with this Court’s opinion of this date, the trial court’s order granting
appellee Dallas County, Texas’s pleas to the jurisdiction is AFFIRMED.
       It is ORDERED that appellee Dallas County, Texas recover its costs of this appeal from
appellants Kingvision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and Entertainment by
J&J, Inc.


Judgment entered this 20th day of February, 2014.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE




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