author: ADELE HEDGES, Chief Justice.

text:
    CYPRESS FOREST PUBLIC UTILITY DISTRICT, Appellant, v. KLEINWOOD MUNICIPAL UTILITY DISTRICT, Appellee.
    No. 14-09-00679-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 16, 2010.
    Rehearing Overruled May 18, 2010.

      Ramon G. Viada, III, Stefanie A. Stray-er, Woodlands, for appellant.
    Fred W. Stumpf, Houston, Richard E. Young, Dallas, for appellee.
    Panel consists of Chief Justice HEDGES, Justice ANDERSON, and Senior Justice MIRABAL.

       Senior Justice Margaret Gamer Mirabal sitting by assignment.

   MAJORITY OPINION

ADELE HEDGES, Chief Justice.

This case involves a municipal utility district’s allegation that rights acquired under an annexation agreement were appropriated by another utility district in violation of the takings clause under article I, section 17 of the Texas Constitution. Appellee, Kleinwood Municipal Utility District (“Kleinwood”), filed suit against appellant, Cypress Forest Public Utility District (“Cypress Forest”), claiming an unconstitutional taking of rights created under an annexation agreement. Klein-wood answered the lawsuit by filing a plea to the jurisdiction. The trial court denied the plea, and in turn, Cypress Forest brings this interlocutory appeal. In two issues, Cypress Forest complains that the trial court erred in denying its plea to the jurisdiction. We reverse and render.

I. BACKGROUND

Kleinwood and Cypress Forest are Texas utility districts under section 59 of article XVI of the Texas Constitution and chapters 49 and 54 of the Texas Water Code. See Tex. Const, art. XVI, § 59; see also Tex. Water Code §§ 49.001-.512, 54.001 — .813. This dispute originated from their competing efforts to secure a contract for the annexing of certain property to their respective districts.

A. Annexation Agreements

The property sought to be annexed, owned by JP/Raveneaux Partners, L.P. (“JP/Raveneaux”), was a 39-acre tract of undeveloped land in Harris County (“Ra-veneaux tract”). In or around 2005, JP/Raveneaux and Kera Development, L.P. (collectively “the developers”) began improving the tract of land for residential and commercial purposes. They explored annexation to a utility district for provision of water, sanitary sewer, and drainage services to the property. Because the Raveneaux tract was adjacent to both Kleinwood’s district and Cypress Forest’s district, the developers considered annexing the property to either utility district.

On October 5, 2006, Kleinwood and the developers entered into an annexation contract (“Kleinwood annexation agreement”). The Kleinwood annexation agreement provided that “[a]t such time as Developer desires to obtain service to the Tract, Developers shall execute and file ... [an] ... Annexation Petition” requesting that the Raveneaux tract be annexed to Klein-wood’s district. The Kleinwood annexation agreement further provided that if the developers failed to execute a petition for annexation within a year of the agreement, the Kleinwood annexation agreement would automatically terminate.

Additionally, the Kleinwood annexation agreement provided that the developers might construct water, sanitary sewer, and drainage facilities needed for improving the Raveneaux tract. Upon completion of the necessary infrastructure, the developers agreed to convey the facilities to Kleinwood. Kleinwood agreed to provide 257,400 gallons of water per day to the Raveneaux tract and 94,500 gallons of sewage treatment capacity per day. Kleinwood further agreed to use “good faith efforts” to obtain voter approval for the sale of bonds to reimburse the developers for construction costs of the facilities. Thereafter, Kleinwood would be able to tax the owners of properties within the annexed tract and use those revenues for repayment to its bondholders and for the benefit of other property owners -within its district. If construction of the facilities had not commenced within two years of the agreement, the Kleinwood annexation agreement would automatically terminate.

Cypress Forest soon learned of the Kleinwood annexation agreement. Klein-wood alleges that in early 2008, Cypress Forest began soliciting and negotiating with the developers. It encouraged the developers to abandon the Kleinwood annexation agreement and to enter into a similar contract with Cypress Forest for the purpose of annexing the Raveneaux tract to Cypress Forest’s district. Klein-wood claims that the developers’ attendance at Kleinwood’s board meetings and the developers’ communication with Klein-wood dwindled thereafter. On September 2, 2008, and without notice to Kleinwood, the developers entered into an annexation agreement with Cypress Forest (“Cypress Forest annexation agreement”) calling for the development of the Raveneaux tract and annexation of the tract to Cypress Forest’s district. Thereafter, the developers sent Kleinwood notice that the Klein-wood annexation agreement had terminated.

B. Trial Court Proceedings

Initially, Kleinwood sued Cypress Forest and the developers in federal court. Kleinwood alleged that Cypress Forest had (1) deprived Kleinwood of its rights created under 42 U.S.C. section 1983, (2) conspired with the developers in violation of 42 U.S.C. section 1983, (3) deprived Kleinwood of due process under the Fourteenth Amendment of the United States Constitution, (4) effected an unconstitutional taking in violation of article I, section 17 of the Texas Constitution, and (5) tortiously interfered with Kleinwood’s existing contract with the developers. Ruling on Cypress Forest and the developers’ 12(b)(6) motion, the federal district court dismissed Kleinwood’s section 1983 and Fourteenth Amendment claims with prejudice and dismissed the state article I, section 17 takings claim without prejudice.

Kleinwood then filed its article I takings claim against Cypress Forest and its board of directors in state district court. Against Cypress Forest, Kleinwood claimed only an unconstitutional taking in violation of article I, section 17. Cypress Forest later filed a plea to the jurisdiction, ai'guing that Kleinwood’s takings claim was in fact an inverse condemnation cause of action, a claim over which the county civil courts at law have exclusive jurisdiction pursuant to section 25.1032(c) of the Texas Government Code.

In response, Kleinwood contended that section 25.1032(c) applied only to eminent domain cases; by contrast, its takings claim did not allege the exercise of the state’s eminent domain powers. Klein-wood argued that because the case involved the taking of contract rights — not real property — section 25.1032(c) was not applicable. Cypress Forest later supplemented its plea to the jurisdiction, further arguing that all article I, section 17 claims were captured by section 25.1032(c), and thus, Kleinwood’s article I, section 17 claim could not be adjudicated in the district court. Additionally, Cypress Forest argued that it had governmental immunity from Kleinwood’s takings claim because: (1) Kleinwood had no vested property interest under the Kleinwood annexation agreement and (2) Cypress Forest’s act of contracting with the developers did not constitute a taking because the act was neither a physical taking nor a regulatory taking.

After a hearing on Cypress Forest’s plea to the jurisdiction, the trial court denied the plea, and the instant accelerated appeal ensued. On appeal, Cypress Forest argues that the district court lacked jurisdiction on two grounds: (1) section 25.1032(c) divested the district court’s jurisdiction to hear Kleinwood’s takings claim and (2) Cypress Forest’s sovereign immunity had not been waived because Kleinwood failed to plead a valid takings claim.

II. STANDARD OF REVIEW

A plea to the jurisdiction seeks dismissal on the ground that the trial court lacks subject-matter jurisdiction to hear the cause. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). Whether a court has subject-matter jurisdiction is a question of law which we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The plaintiff bears the burden of alleging facts that affirmatively demonstrate the Mai court’s subject-matter jurisdiction over a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

When a plea challenges the pleadings, we determine if the pleader has alleged facts affirmatively demonstrating the court’s jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent; we do not decide the merits of the case. See id.; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). If the pleadings neither establish jurisdiction nor demonstrate incurable defects in jurisdiction, we must afford the plaintiff an opportunity to amend its pleadings. Miranda, 133 S.W.3d at 226-27. However, if the pleadings affirmatively negate jurisdiction, the trial court may grant a plea to the jurisdiction without allowing the plaintiff the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

When the defendant’s plea challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional questions raised. See Miranda, 133 S.W.3d at 227. Then, we assume as true all evidence favoring the nonmovant. See id. at 228. If the evidence generates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

III. TRIAL COURT’S JURISDICTION

In its first issue, Cypress Forest contends that the lower district court lacked jurisdiction to hear Kleinwood’s article I, section 17 claim because: (1) Government Code section 25.1032(c) vests the county civil court at law with exclusive jurisdiction over Kleinwood’s takings claim and (2) Kleinwood’s claim is not a taking by eminent domain.

A. Section 25.1032(c)

Cypress Forest first contends that Kleinwood’s takings claim falls within the county civil court at law’s exclusive jurisdiction. Section 25.1032(c) provides that a “county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.” Tex. Gov’t Code § 25.1032(c). Relying on two cases from our sister court, Cypress Forest contends that the language of this section covers all article I, section 17 cases, not just statutory and inverse eminent domain proceedings. See Villarreal v. Harris County, 226 S.W.3d 537 (Tex.App.-Houston [1st Dist.] 2006, no pet.); City of Houston v. Boyle, 148 S.W.3d 171 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

1. Villarreal and Boyle

Contrary to Cypress Forest’s contention, the First Court’s opinions in Villarreal and Boyle did not hold that all article 1, section 17 claims are subject to section 25.1032(c). See Villarreal, 226 S.W.3d at 544 (holding “that the improper use of taxing power to accomplish a taking of real property is a use of eminent domain power, and thus, jurisdiction over any claim that alleges such rests exclusively in the Harris County Civil Courts at Law”); see also Boyle, 148 S.W.3d at 179 (“Because Boyle’s pleadings seek recovery premised on allegations that the City’s alleged conduct — both nonnegligent nuisance and inverse condemnation — resulted in a taking of his property that entitled him to compensation, we conclude that exclusive jurisdiction over Boyle’s ... inverse condemnation claim ... is in the Harris County Civil Courts at Law pursuant to section 25.1032(c) of the Government Code.”). Villarreal did not hold that all article I, section 17 claims are subject to section 25.1032(c). Rather, Villarreal concluded that a state’s improper use of its taxing power to take a person’s real property is an exercise of eminent domain powers and therefore subject to section 25.1032(c). 226 S.W.3d at 544. Here, there is no allegation of an improper use of taxing power to take real property.

Furthermore, the plaintiff in Boyle explicitly pleaded an inverse condemnation claim, which subjected the suit to the county court’s exclusive jurisdiction by the plain language of section 25.1032(c). 148 S.W.3d at 174. Kleinwood’s pleadings do not allege injury by “inverse condemnation” on their face. Accordingly, Cypress Forest’s reliance on Villarreal and Boyle for the proposition that all article I, section 17 claims fall under section 25.1032(c) of the Government Code is misplaced. Because Cypress Forest cites to no authority holding that all article I, section 17 claims are subject to section 25.1032(c), we reject Cypress Forest’s argument and overrule its first issue.

IV. VALIDITY OF TAKINGS CLAIM AND GOVERNMENTAL IMMUNITY

In its second issue, Cypress Forest argues alternatively that because the rights alleged to have been taken from Kleinwood under the Kleinwood annexation agreement were not an exercise of eminent domain powers, its sovereign immunity has not been waived, and it is therefore immune from suit. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598-99 (Tex.2001) (reasoning that the immunity doctrine shielded the State from an invalid constitutional-takings claim). Cypress Forest supports its legal conclusion on the facts that (1) the right to annexation was contingent on the developers’ constructing the facilities; (2) the right to tax was contingent on ever-changing tax laws; (8) interference with a contract does not constitute a “taking” under Texas law; and (4) the rights allegedly appropriated were contract rights, not real property rights.

A. Taking by Eminent Domain

The distinction between a taking by eminent domain and a taking not in eminent domain is a murky topic in constitutional condemnation jurisprudence. Article I, section 17 claims have generally fallen under one of three categories: (1) the taking or interference of a right by physical possession or regulation; (2) the taking of property by the state’s exercise of a color-able contract right; and (3) the taking, damaging, or destruction of real property by eminent domain or inverse condemnation.

1. Physical or Regulatory Talcing

To establish a takings claim, a plaintiff must prove (1) the intentional performance by the governmental entity of certain acts, (2) that resulted in a “taking” of property, (3) for public use. Id. at 598. A taking can be either a physical taking or a regulatory taking. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex.2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998). A physical taking occurs when the government physically authorizes an unwarranted physical occupation of the property. Gragg, 151 S.W.3d at 554; Mayhew, 964 S.W.2d at 933. Kleinwood did not allege a physical occupation; thus, it has not alleged a physical taking.

In the absence of any physical invasion, a regulatory taking may occur by means of a governmental restriction that constitutes an unreasonable interference with the use and enjoyment of the property. Lowenberg v. City of Dallas, 168 S.W.3d 800, 802 (Tex.2005); Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex.1994). In the instant case, there are no allegations or facts presenting a regulatory taking. Accordingly, Cypress Forest’s acts do not constitute a physical or regulatory taking.

2. Contract Disputes

The Texas Supreme Court has held that when the State withholds property in a contractual context, it lacks the necessary intent to commit a taking because it “is acting within a color of right under the contract and not under its eminent domain powers.” Little-Tex Insulation Co., 39 S.W.3d at 598-99. The Supreme Court’s reasoning rests on the concept that the State may wear two hats: one as a contracting party, “akin to a private citizen,” and another as a sovereign. Id. at 599. However, this theory does not apply in the instant case because the complained-of act — Cypress Forest’s interference with the Kleinwood annexation agreement — was not pursuant to an existing contract right belonging to Cypress Forest.

Kleinwood complains of Cypress Forest’s alleged acts prior to the Cypress Forest annexation agreement: by persuading the developers to breach its contract with Kleinwood and by entering into the Cypress Forest annexation agreement, Cypress Forest appropriated Kleinwood’s rights to have the tract annexed to its district and to tax the property in the future. These alleged acts of interference occurred before Cypress Forest was a party to the Cypress Forest annexation agreement. Thus, the alleged act of taking — interfering with the Kleinwood annexation agreement — was not pursuant to an existing colorable contract right created under the Cypress Forest annexation agreement. Accordingly, Cypress Forest was not acting under existing contract rights.

3. Eminent Domain

Eminent domain refers to the power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise a function of state power. Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 456 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (quoting Black’s Law DictioNARY 523 (6th ed. 1990)); see also Ft. Worth & D.C. Ry. Co. v. Ammons, 215 S.W.2d 407, 409 (Tex.Civ.App.-Amarillo 1948, writ ref'd n.r.e.) (stating that eminent domain is the right of the state, or of those to whom power has been delegated, to condemn private property for public use, and to take ownership and possession of property on paying owner due compensation). The process of exercising the power of eminent domain is commonly referred to as “condemnation” or “expropriation.” Taub, 93 S.W.3d at 456. Because a taking by eminent domain traditionally has been used to seek compensation for the damaging, destruction, or taking of real property, Kleinwood attempts to distinguish its takings claim from eminent domain cases: the rights for which Klein-wood seeks compensation are contract rights to have the Raveneaux tract annexed to its district and to tax the property owners within the tract.

Although eminent domain has traditionally been used in the condemning of real property, neither party has directed the Court to authority reflecting that such power is limited to the taking of real property. However, at least one court of appeals has acknowledged, in the context of article I, section 17, that eminent domain involves condemnation of interests in real property, not the alleged taking of property interests created under a contract. See State v. Operating Contractors/State, 985 S.W.2d 646, 651 (Tex.App.-Austin 1999, pet. denied); see also MBP Corp. v. Bd. Of Trs. of Galveston Wharves, 297 S.W.3d 483, 491-92 (Tex.App.-Houston [14th Dist.] 2009, no pet.). We decline Kleinwood’s invitation to extend the definition of condemned property, in the context of eminent domain, to include contract rights. Accordingly, we sustain Cypress Forest’s second issue to the extent that the alleged taking of Kleinwood’s contract rights is not an exercise of eminent domain.

B. Vested Property Interest

Cypress Forest further contends in its second issue that Kleinwood failed to plead a valid takings claim because (1) the right to annexation was contingent on the developers’ construction of the facilities and the right to tax was contingent on ever-changing tax laws and (2) Cypress did not appropriate Kleinwood’s contract rights.

A person asserting a valid article I takings claim must show that it has a vested property interest. The two property interests that Kleinwood asserts were taken are (1) the right to be petitioned to have the Raveneaux tract annexed to its district and (2) the right to tax property owners within the tract and its district. Neither of these interests is a vested property right. See City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 311 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (concluding that an “interest in receiving ad valorem tax revenues is not a vested property right for purposes of asserting a violation of article I, section 17”). The right to collect ad valorem tax revenues is dependent on the characteristics and status of the entity owning the property. Id. Such taxes are based merely on the expectancy that all future landowners in the district will be subject to paying ad valorem taxes. Id. Accordingly, Kleinwood’s right to collect ad valorem taxes is not a vested right, but a “qualified” property right. See id. Likewise, Kleinwood’s right to annexation was “qualified.” This right vested upon only the developers’ discretion to execute and file the petition for annexation. Furthermore, if the petition for annexation was not filed within a year of the Klein-wood annexation agreement, the agreement terminated. Accordingly, Kleinwood did not have a vested property right.

Because Kleinwood has failed to plead a vested property interest, and therefore no valid takings claim, governmental immunity bars its suit against Cypress Forest. See Little-Tex Insulation Co., 39 S.W.3d at 599. We sustain Cypress Forest’s second issue to the extent that Kleinwood did not plead a vested property interest. Accordingly, we hold that the trial court erred in denying Cypress Forest’s plea to the jurisdiction.

V. CONCLUSION

We reverse the trial court’s order denying Cypress Forest’s plea to the jurisdiction and render judgment dismissing Kleinwood’s suit for want of jurisdiction.

Senior Justice Mirabal concurs in the result with the following note: “Justice Mirabal concurs in the result, joining only in the analysis under the heading TV.B. Vested Property Interest.’ ”

Senior Justice MIRABAL concurring in the result with note.

      . See Tex. Gov’t Code § 25.1032(c).

      . In its reply brief, Cypress Forest further argues that because Kleinwood's takings claim is really an inverse condemnation claim, it is subject to section 25.1032(c). In response, Kleinwood contends that its article I, section 17 takings claim is a taking of contract rights, not real property rights, and therefore not subject to section 25.1032(c).

      . Cypress Forest's argument that it did not appropriate Kleinwood’s contract rights addresses the merits of Kleinwood's takings claim. However, a challenge to the merits of a claim is not proper in a plea to the jurisdiction.


source: Caselaw Access Project

license: Public Domain

text:
    In re ESTATE OF Frank William GAY.
    No. 14-08-00699-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 16, 2010.

      Sharon Brand Gardner, C. Henry Kol-lenberg, Houston, for appellant.
    Ronald G. Greening, Melvin Dummar, Austin, Jimmy Walker, Houston, for appel-lee.
    Panel consists of Justices ANDERSON and BOYCE and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal sitting by assignment.

   OPINION

MARGARET GARNER MIRABAL, Senior Justice (Assigned).

In this probate case, appellants Frank William Gay, II and Robert Gay contend, among other things, that the trial court erred by refusing to appoint them as the independent co-executors of the estate of their father, Frank William Gay (“Mr. Gay”), as provided in their father’s will. We reverse and remand.

Background

In May 2007, Mr. Gay died. When he died, a lawsuit against him and William Lummis filed by Melvin Dummar was on appeal to the United States Court of Appeals for the Tenth Circuit. See Dummar v. Lummis, 543 F.3d 614 (10th Cir.2008). Frank filed a suggestion of death in the Tenth Circuit Court of Appeals. The clerk responded by issuing an order requiring that either Mr. Gay’s attorneys or Frank provide the court with valid documentation of Mr. Gay’s death and, if appropriate, request that Frank be substituted as a party to the appeal. On June 15, 2007, the Tenth Circuit clerk again ordered Mr. Gay’s counsel to advise the court whether Frank or another personal representative should be substituted as a party to the appeal. Mr. Gay’s counsel responded by stating

Frank W. Gay II and Robert C. Gay are the independent co-executors of the Estate of Frank William Gay (“Estate”) and, as such, are the “personal representatives” of the Estate contemplated by Rule 43, Federal Rules of Appellate Procedure. ...

Mr. Gay’s counsel then moved to substitute Frank and Robert as appellees in place of Mr. Gay, stating in the motion,

Mr. Gay, by testamentary designation, has appointed the co-executors to administer the Estate and the co-executors, are the “personal representatives” who may seek and are properly substituted under Rule 43.

In June 2007, the Tenth Circuit Court of Appeals ordered that Frank and Robert were substituted as appellees, along with the other defendant in the case, Lummis. In January 2008, Dummar sought to strike the joint brief filed by Mr. Gay’s sons and Lummis because probate had not been opened in Harris County for Mr. Gay’s estate. In the motion, Dummar alleged that a certified copy of a court order or copies of letters testamentary were necessary to permit the substitution of Mr. Gay’s sons in the suit. In its disposition of the case by opinion dated September 12, 2008, the Tenth Circuit ultimately rejected Dummar’s claim that a probated estate was necessary, stating

[W]e see nothing improper in the representations of the Gays to this court in their motion for substitution, so Mr. Dummar’s motions to strike the joint brief and oral argument of Defendants and for a stay are DENIED.

Id. at 624.

While the appeal of Dummar’s suit against Lummis and Mr. Gay was pending, Dummar filed an application for administration of Mr. Gay’s estate in Harris County on February 22, 2008; specifically, Dummar filed a Complaint, Motion to Show Cause, and Motion to Set Hearing requesting that Appellants produce the will. On May 20, 2008, a hearing was held in Probate Court No. 3. The record reflects that only Robert was successfully served. His counsel appeared at the hearing and represented that the will would be produced, but stated that he did not have an original document with him at the hearing. The trial court appointed Clifton A. Goodwin, Jr. as dependent administrator for Mr. Gay’s estate. Frank and Robert filed the will for probate shortly after this hearing.

On June 17, 2008, the trial court held a hearing on Appellants’ application for probate. The will was admitted to probate without objection. In the will, Mr. Gay left his estate entirely to his wife, directly or in trust. The will named his wife as the executor of his estate, but if she was unable or declined to serve, he named his sons Frank and Robert as successor independent co-executors. Appellants appeared and testified regarding the reasons that the will had not been previously submitted to probate and about the circumstances surrounding the Tenth Circuit case. They testified that their mother had declined to serve as executor of Mr. Gay’s estate, and that they were both willing to serve and were not disqualified. Frank explained that he is a resident of Utah and has a graduate degree in Business Administration from Harvard Business School. Robert testified that he has a Ph.D. from Harvard University in Economics and Finance.

Dummar opposed their application to be named co-executors, arguing that the statements made to the Tenth Circuit in Appellants’ request to substitute parties constituted a misrepresentation that a formal probate proceeding had been opened and they actually had been appointed co-executors. Dummar alleged that this pleading made them “unsuitable” to serve as co-executors. One of Appellants’ attorneys from the Tenth Circuit proceeding testified regarding the steps she had taken in the appeal when Mr. Gay died. She explained that to defend their father’s estate, Appellants identified themselves as personal representatives by testamentary designation and allowed themselves to be substituted for Mr. Gay based on the advice of counsel.

The probate court denied Frank and Robert’s application to be named co-executors, finding them “unsuitable”:

In 2007, the Applicants held themselves out to be Successor Independent Co-Executors of the Estate of Decedent or “personal representatives by testamentary designation” to the United States Court of Appeals for the Tenth Circuit. Applicants had not been appointed Successor Independent Co-Executors of the Estate of Decedent at this Time.
The Court finds that the above statement is a misrepresentation by Applicants before a federal tribunal. As such, the Court finds them unsuitable to be Successor Independent Co-Executors of the Estate of the Deceased under § 78(c) of the Texas Probate Code.

The probate court retained Goodwin as the dependant administrator of Mr. Gay’s estate, with will annexed. This appeal timely ensued.

Issues Presented

In them second issue, Appellants contend that the trial court erred by admitting Mr. Gay’s will to probate but refusing to appoint them as independent co-executors as provided for in his will.

Analysis

A. Standard of Review

We generally review a trial court’s ruling on a probate application for an abuse of discretion. See In re Estate of Gaines, 262 S.W.3d 50, 56 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); see also In re Estate of Robinson, 140 S.W.3d 801, 807 (Tex.App.-Corpus Christi 2004, pet. dism’d) (reviewing order finding person unsuitable to serve as executor under an abuse of discretion standard); Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex.App.-San Antonio 1996, no writ) (same). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. See Bowden v. Phillips Petroleum, Co., 247 S.W.3d 690, 696 (Tex.2008). The mere fact a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). But a trial court abuses its discretion when it fails to analyze or apply the law correctly. See In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex.2009) (orig. proceeding).

B. Applicable Law

A testator has long been permitted to select an independent executor of his choosing. Boyles v. Gresham, 158 Tex. 158, 161-62, 309 S.W.2d 50, 53 (1958). Indeed, “[l]etters testamentary or of administration shall be granted to persons who are qualified to act, in the following order: (a) To the person named as executor in the will of the deceased.... ” Tex. Probate Code Ann. § 77 (Vernon 2003). However, under section 78 of the Probate Code, the court may disqualify a person from serving as an executor if the court finds that person “unsuitable.” Id. § 78(e); see also Gaines, 262 S.W.3d at 56. The trial court maintains broad discretion in determining whether an individual is “suitable” to serve as an executor. Gaines, 262 S.W.3d at 56.

No comprehensive explanation exists delineating the attributes that make someone unsuitable. Id. (citing Boyles, 158 Tex. at 161-63, 309 S.W.2d at 53-54 (“Neither the Model Code nor the Texas Probate Code purports to define ‘unsuitable,’ and we shall not attempt here to define it.”)). However, the majority of cases examining unsuitability under this section of the Texas Probate Code involve a conflict of interest between the individual and the estate. See, e.g., Olguin, 931 S.W.2d at 610 (citing and examining cases regarding suitability of administrator/executor). These cases indicate that an individual “asserting a claim against property, claiming it as their own to the exclusion of the estate, is deemed unsuitable because of the conflict, whereas an individual making a claim within the probate process (i.e. person claiming under the will or attempting to collect a debt from the estate) is not.” Id. With this background in mind, we turn to the facts of this case.

C. Application

As noted above, the trial court concluded that Appellants, named successor co-executors in Mr. Gay’s will, were unsuitable to serve because they misrepresented their status before the Tenth Circuit. First, we note that the federal court determined that Appellants did nothing improper in making the representations they did in their motion for substitution. Dummar, 543 F.3d at 624. Appellants stated they were named independent co-executors by testamentary designation; they did not claim that a probate proceeding had been opened or that they had received letters testamentary. We likewise see nothing improper in their representations to the federal court.

Further, by stepping into their deceased father’s shoes, Appellants actually worked to benefit their father’s estate by successfully defending against Dummar’s appeal. Cf. Gaines, 262 S.W.3d at 56 (concluding that sufficient evidence supported trial court’s finding of unsuitability when named executor possibly cost estate money by failing to probate will for three years, collected and distributed money from the estate without authority, and considered interest of one beneficiary over interests of estate); Spies v. Milner, 928 S.W.2d 317, 319 (Tex.App.-Fort Worth 1996, no writ) (determining court did not abuse its discretion in finding appellant unsuitable as executor when she had difficulty dealing with professionals, was a difficult and inconsistent witness, admitted taking money from the decedent’s account while decedent was still alive, and did not get along with other relatives involved in probate proceeding). Finally, we note that both Frank and Robert are well-educated professionals with experience in the areas of business and finance. Nothing in our record indicates that any others involved in the probate proceeding are opposed to their appointment as independent co-executors of Mr. Gay’s estate; indeed, their mother, who is the primary beneficiary under the will, declined to serve in their stead.

Under these circumstances, we conclude that the trial court disregarded the longstanding tradition of permitting a testator to select his executor and acted without reference to guiding rules and principals by refusing to appoint Frank and Robert independent co-executors of their father’s estate. We thus sustain their second issue.

Conclusion

Given the preference in Texas to permit a testator to select his or her own executor, coupled with the fact that neither Frank nor Robert acted improperly in substituting themselves in the proceedings in the Tenth Circuit court and are otherwise qualified to serve, we conclude that the trial court erred by failing to appoint Frank and Robert independent co-executors of their father’s will, and we sustain their second issue. We reverse the trial court’s order denying Frank and Robert’s application to be appointed Independent Co-Executors and appointing Goodwin the dependent administrator of Mr. Gay’s estate with will annexed, and we remand to the trial court for further proceedings consistent with this opinion.

      . We will refer to Frank William Gay, II as "Frank” and Robert Gay as "Robert” individually where appropriate, and to both of them as "Appellants” where necessary.

      . See Fed. R.App. P. 43(a)(1) (providing for substitution of parties on the death of a party).

      . In their first issue, Appellants assert that Dummar lacked standing in the probate court. In their third issue, they argue that the trial court erred by failing to require notice to and refusing to consider any relative of Mr. Gay as executor of the estate and retaining Goodwin as the dependent administrator of the estate. Because of our disposition of issue two, it is not necessary to reach the merits of issues one and three, and we decline to do so.


text:
    Lt. Kenneth MILLER, Appellant, v. CITY OF HOUSTON and Harold Hurtt, Appellee.
    No. 14-08-01018-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 23, 2010.

      Kimbra Kathryn Ogg, R. Scott Poerschke, Houston, for appellant.
    Timothy J. Higley, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES, Justice ANDERSON, and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal sit-ling by assignment.

   OPINION

MARGARET GARNER MIRABAL, Senior Justice (Assigned).

In this case arising from the disciplinary actions taken against a police officer, we are asked if an independent hearing examiner exceeded his jurisdiction in effectively reducing an indefinite suspension to a 92-day suspension. Because the hearing examiner was not authorized to impose a suspension of more than fifteen days, we reverse the trial court’s judgment and remand the case.

I. Factual and PROCEDURAL Background

In 2006, a coworker alleged that Lieutenant Kenneth Miller of the City of Houston Police Department had sexually harassed her. Based on the investigation of the allegations and on his determination that Miller was untruthful during the investigation, Chief of Police Harold L. Hurtt indefinitely suspended Miller on March 8, 2007. Hurtt concluded that Miller had violated specific provisions of General Order 200-08, dated September 28, 2005, addressing officers’ “personal conduct,” “sound judgment,” “truthfulness,” “obedience to laws and rules,” and “supervisory conduct.”

Miller filed a timely appeal to an independent hearing examiner, and the case was heard by Richard F. Dole Jr., who issued a written decision on June 7, 2007. Dole’s ruling is divided into four sections labeled “Background,” “Positions of the Parties,” “Analysis,” and “Decision.” The conclusion of the Analysis section and the complete Decision section are as follows:

During the hearing both parties emphasized that the Ap[p]ellant’s truthfulness was of major concern. In resolving that concern, the Chiefs letter indicates that the Chief gave significant weight to the polygraph examination and to the polygraph examiner’s report.... However, the record in this proceeding establishes that both the examination process and the examination report are not entitled to significant weight. Just cause was not shown for the Appellant’s indefinite suspension. However, the award of back pay and lost benefits are not warranted by the hearing record.

IV. DECISION

(1) The Appellant’s indefinite suspension is vacated.
(2) The City is to restore the Appellant’s employment.
(3) The parties are to pay the expenses of this proceeding as provided by Texas law.

Miller appealed the decision to á Harris County district court, naming Hurtt and the City of Houston (collectively, “the City”) as defendants. As relevant to this appeal, Miller alleged that the hearing examiner, having held that Miller 'be restored to his employment, lacked or exceeded jurisdiction to exclude Miller’s recovery of back pay and lost benefits. See Tex. Loc. Gov’t Code Ann. § 143.1016(j) (Vernon 2008).

The City filed an original and a first amended plea to the jurisdiction. On the day the plea was heard, Miller filed a first amended petition asserting additional claims for declaratory relief. Five days later, the City filed a second amended plea to the jurisdiction in which it asserted that Miller’s suit was not timely filed, and the trial court granted Miller leave to file a second amended petition. Before the second amended plea was heard, however, the trial court granted the City’s first amended plea to the jurisdiction and dismissed all of Miller’s claims. This appeal timely ensued.

II.Issues PResented

Miller presents five issues for review. In his first issue, he argues that the district court erred in granting the City’s plea to the jurisdiction because jurisdiction over the parties and the subject matter of this cause of action is proper under Texas Local Government Code section 143.1016(j). Because this issue is dispositive of the appeal, we do not reach Miller’s remaining issues. See TexR.App. P. 47.1.

III.Standard of Review

A trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the issues before it because if it lacks jurisdiction over the subject matter of the case, its judgment is void. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) (citing Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903)); Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985) (per curiam). Whether a trial court has jurisdiction is a question of law that we review de novo. Id. Where, as here, a plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally in the pleader’s favor and look to the pleaders’ intent when determining if the facts alleged affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)).

IV.Analysis

A. Applicable Law

Fire fighters and police officers employed by municipalities covered by the Civil Service Act, codified in chapter 143 of the Local Government Code, generally have permanent employment tenure as public servants. Tex. Loc. Gov’t Code Ann. § 143.001 (Vernon 2008). Nevertheless, the Act authorizes three types of suspensions from employment as a police officer.

First, the head of the police department may impose an involuntary disciplinary suspension for “a reasonable period not to exceed 15 days.” Id. § 143.117(a). Such a suspension may be appealed to the Fire Fighters’ and Police Officers’ Civil Service Commission (“the commission”) or to an independent hearing examiner. See § 143.118 (appeal to the commission); id. § 143.1016 (appeal to an independent hearing examiner). The hearing examiner and the commission have the same duties and powers. Id. § 143.1016(f). The selected entity determines if “just cause” exists for the suspension, and may order the period of suspension reduced or instruct the department head to restore the officer to his prior position and repay lost wages. Id. § 143.118.

Second, the department head may “indefinitely suspend” a police officer for violating a civil service rule. Id. § 143.119(a). Indefinite suspension is the equivalent of termination, and like a disciplinary suspension, it may be appealed to the commission or to an independent hearing examiner. Id. §§ 143.106, 143.119. In issuing a decision in such an appeal, the commission or hearing examiner must state whether the officer is permanently dismissed, temporarily suspended, or restored to his former position. Id. § 143.120(c). An officer may be suspended or dismissed only after a finding that the specific charges against him are true. Id. § 143.120(e).

Third, the department head may allow an officer faced with indefinite suspension the opportunity to remain employed by accepting a voluntary suspension of sixteen to ninety calendar days with no right of appeal. See id. § 143.119(f). Because no such offer was extended and accepted by Miller, he retained his right to appeal.

A hearing examiner’s award is ap-pealable to a district court only on the grounds that the examiner “was without jurisdiction or exceeded [his or her] jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.” Id. § 143.1016. “A hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine.” City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex.2009).

B. Nature of Miller’s Allegations

Miller’s pleadings and the City’s plea to the jurisdiction offer two different characterizations of the examiner’s order. Miller pleaded that because the hearing examiner vacated Miller’s indefinite suspension and restored him to his former employment, the examiner exceeded his jurisdiction in denying Miller recovery of back pay and lost benefits. See Tex. Loc. Gov’t Code Ann. §§ 143.120(d); 143.1215 (providing that an officer restored to employment is entitled to full compensation for the actual time lost as a result of the suspension). But the City reasons that because an officer does not earn or accrue wages or benefits while suspended, id. § 143.122(e), and the examiner withheld an award of back pay, the examiner “ruled ultimately that Miller could keep his job, but that the Chief had just cause to discipline Miller, and affirmed a suspension for approximately 92 days.” We agree with the City’s construction of the hearing examiner’s order. The question to be resolved is whether the hearing examiner exceeded his jurisdiction by reforming an indefinite suspension to a temporary suspension of more than ninety days.

The Texas Supreme Court answered this question in City of Waco v. Kelley, 309 S.W.3d 536 (Tex.2010). In Kelley, an assistant chief of police with the same appellate rights as a classified police officer appealed an indefinite suspension, and the hearing examiner reduced the suspension to 180 days, reinstated the officer at a reduced rank, and ruled that he could recover his lost wages and benefits. Id. at 539-40. The court noted that a hearing examiner is authorized to reduce the period of an officer’s suspension. Id. at 539-40 (citing Tex. Loc. Gov’t Code Ann. § 143.053(f)); see also Tex. Loc. Gov’t Code Ann. § 143.118(b) (employing identical language in section applicable to officers employed by a municipality with a population of at least 1.5 million). But the court further observed that the Act authorizes a department head to impose involuntary suspension only for “ ‘a reasonable period not to exceed 15 calendar days or for an indefinite period.’ ” Id. at 545 (citing Tex. Loc. Gov’t Code Ann. § 143.052(b)); see also Tex. Loc. Gov’t Code Ann. § 143.117(a) (authorizing the department head of a larger municipality to suspend an officer “for a reasonable period not to exceed 15 days”); Tex. Loc. Gov’t Code Ann. § 143.119(a) (authorizing the department head of a larger municipality to indefinitely suspend an officer). The court explained that when a hearing examiner finds the charges against an officer are true, the examiner’s jurisdiction is limited “to imposing a dismissal from the department, imposing a temporary suspension of fifteen days or less, or restoring the officer’s former position or status ... together with wages and benefits lost as a result of the suspension.” Id. at 547; see also id. at 548 (“[T]he Act does not authorize a hearing examiner to both ‘restore’ an officer while at the same time suspending the officer, even if the officer’s suspension is reduced from that imposed by the department head.”). The court concluded that although the hearing examiner did not exceed his jurisdiction by reducing Kelley’s indefinite suspension to a temporary one, he exceeded his jurisdiction by imposing a temporary suspension of more than fifteen days.

The rationale and holding of Kelley apply to the facts presented here. As in Kelley, the officer in this case was indefinitely suspended. In both cases, the officer appealed to an independent hearing examiner. In Kelley, the hearing examiner expressly found the charges against the officer to be true, and in this case, the hearing examiner impliedly found at least some of the charges against the officer to be true. In KeUey, as here, the examiner effectively reinstated the officer and reduced the indefinite suspension to a temporary suspension of more than fifteen days. See id. at 543 (“By reducing the suspension, the hearing examiner effectively reinstated Kelley to the police force.”)- And just as the court in Kelley concluded that the hearing examiner exceeded his jurisdiction, we must conclude that the hearing examiner in this case similarly exceeded his jurisdiction.

The hearing examiner in this case was authorized to reduce Miller’s indefinite suspension to a temporary suspension, but he was not authorized to impose a temporary suspension of more than fifteen days. Because the examiner exceeded his jurisdiction in effectively imposing a 92-day suspension, the trial court has jurisdiction over the case pursuant to Texas Local Government Code section 143.1016(j).

V. Conclusion

We sustain Miller’s first issue and hold that the trial court erred in granting the City’s plea to the jurisdiction. We therefore reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

      . Chapter 143 contains some statutes that generally apply to all covered municipalities and some that apply only to municipalities with populations of at least 1.5 million. Population is determined by the most recent federal decennial census or, if more recent, the state demographer’s annual population estimate. Id. § 143.02. Because Miller was employed by the City of Houston Police Department, we apply the statutes governing employees of municipalities having populations of at least 1.5 million as well as those of general application unless specifically excluded. Id. § 143.101. The 2000 federal census lists the population of Houston as 1,953,-631. U.S. Census Bureau, Census 2000, American FactFinder, Geographic Comparison Table, Texas — Place, Summary File 1, http://factfinder.census.gov/servlet/ GCTTable?_bm=y&-geo_id=04000US48&-_ box_head_nbr=GCT-PH1 &-ds_name=DEC_ 2000_SFl_U&-format= ST-7.

      . Id. § 143.052.

      . Hurtt specified that Miller was suspended "as of the close of business" on March 8, 2007; Dole issued his decision 92 days later.

      . In his written decision, the examiner did not expressly address the underlying allegations of sexual harassment, but only stated the parties’ positions on the subject. The examiner focused his "Analysis" on Hunt's conclusion that Miller was untruthful during a polygraph examination and he concluded, "Just cause was not shown for the Appellant's indefinite suspension. However, the award of back pay and lost benefits are not warranted by the hearing record.” His attempt to effectively impose a 92-day suspension implies that he found charges to be true.

      . Although the hearing examiner instructed the City to ''restore” Miller’s employment, the terms "restore” and "reinstate” have different meanings. See Tex. Loc. Gov’t Code Ann § 143.120(d) ("If the suspended ... officer is restored to the position or class of service from which the person was suspended, the department head shall immediately reinstate the person as ordered, and the person is entitled to full compensation ... for the actual time lost as a result of the suspension ....”) (emphasis added). A hearing examiner is not authorized both to "restore” an officer while at the same time suspending the officer. See Kelley, 309 S.W.3d at 548-49.