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    CITY OF DALLAS, Appellant and Cross-Appellee, v. Windle TURLEY, Shirley Turley, Steve Aaron, Carol Aaron, B.M. Rankin, Jr., and Ashley Rankin, Appellees and Cross-Appellants.
    No. 05-09-00791-CV.
    Court of Appeals of Texas, Dallas.
    July 13, 2010.
    Rehearing Overruled Aug. 24, 2010.

      Christopher J. Caso, Office of the City Attorney, Barbara E. Rosenberg, City of Dallas Attorney’s Office, Michael L. Kna-pek, Jackson & Walker, Dallas, TX, for Appellant and Cross-Appellee.
    Joel Wilson Reese, Arthur J. Anderson, Winstead Seehrest <& Minick, P.C., Dallas, TX, PC, David Fowler Johnson, Winstead Seehrest & Minick, P.C., Fort Worth, TX, for Appellees and Cross-Appellants.
    Before Justices RICHTER, FRANCIS, and LANG-MIERS.
   OPINION

Opinion By

Justice LANG-MIERS.

These are interlocutory cross-appeals from the trial court’s order on the City’s plea to the jurisdiction. The issue before us is whether governmental immunity bars the claims against the City. We conclude that it does. As a result, we affirm in part and reverse in part, and remand for further proceedings.

Background

The appellees and cross-appellants are Windle Turley, Shirley Turley, Steve Aaron, Carol Aaron, B.M. Rankin, Jr., and Ashley Rankin (the landowners). The Turleys and the Aarons own property that shares a boundary at the back of their properties. A street easement and a right-of-way extending a street, referred to as the Ravine Drive extension (the easements), run through the boundary area at the back of their properties. The easements have been fenced off, landscaped, improved, and maintained as part of their yards. The Rankins own property that adjoins the Turleys’ and contains a flood-way easement. Richard and Nona Barrett, who are defendants below, also own real property adjoining the Turleys’ and Aarons’ tracts. The Barretts want to access their property through the easements and install a storm water pipe that crosses the boundary at the back of the Turleys’ and the Aarons’ properties. The storm water pipe will empty into a creek within the floodway easement on the Rankins’ property.

The Ravine Drive extension was included as a proposed dedication on a plat filed in 1973. A water line, a sewer line, and a fire hydrant were installed there in 1973 and were accepted by the Dallas City Council. The street easement was shown on a plat approved by the City in 1977. A portion of the street easement was abandoned in 1980 through the adoption of a City ordinance, but the City contends the remainder of the street easement at issue in this case has not been abandoned. The easements have never been used as a public street.

The landowners filed this lawsuit seeking an injunction and other relief to keep the Barretts and the City from opening the easements to traffic, constructing any public utilities in the easements, or making any other public use of them. The City filed a plea to the jurisdiction claiming that it was immune from suit and asked the court to dismiss the landowners’ claims against the City for lack of subject-matter jurisdiction.

In their “Third Amended Petition and Application for Injunction,” the landowners alleged a claim for adverse possession and sought injunctive and declaratory relief, as well as attorney’s fees. They pleaded for declaratory relief as follows:

23.Plaintiff [sic] seeks a declaratory judgment pursuant to the Texas Declaratory Judgments Act ... that the proffered dedication and/or accepted dedication for Ravine Drive shown on Exhibit “A” and the street easement shown on Exhibit “B” have never been accepted.
24. Plaintiff [sic] seeks a declaratory judgment ... that the City’s alleged acceptance of dedication of Nondedica-ted Ravine Drive shown as Exhibit “A” and the street easement shown on Exhibit “B” have been abandoned.
25. Plaintiff [sic] seeks a declaratory judgment ... that the proposed storm water runoff onto the Rankins’ lot will violate the Texas Water Code.

The trial court granted part of the City’s plea to the jurisdiction, dismissing the landowners’ claims for injunctive relief, adverse possession, and declaratory judgment with respect to the Texas Water Code, but denied part as to the landowners’ “other remaining requests for declaratory judgment,” and their “request for attorney’s fees under the declaratory judgment act.” The City appeals, alleging the trial court should have granted the plea in its entirety. The landowners also appeal, claiming that the trial court erred to the extent it granted the plea. After the cross-appeals were filed, we granted temporary relief pursuant to appellate rule 29.3 “to preserve the parties’ rights until disposition of the appeal.” See Tex. R.App. P. 29.3. The parties filed additional motions which we resolve today as well.

Issues

The City contends that the trial court erred because it denied the City’s plea to the jurisdiction as to the landowners’ requests under the Declaratory Judgments Act to declare that the City had abandoned its easements and had not accepted the easement dedications. In its second issue, the City also contends that the trial court erred because it denied the City’s plea to the jurisdiction as to the landowners’ request for attorney’s fees. In their cross-appeal, the landowners contend that the trial court erred because it granted the City’s plea to the jurisdiction as to the landowners’ claims for injunctive relief, adverse possession, and declaratory judgment under the Texas Water Code.

STANDARD OF REVIEW

Governmental immunity from suit defeats a trial court’s subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). The existence of subject-matter jurisdiction is a question of law and we review the trial court’s ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226, 228. A plea to the jurisdiction can be based on the pleadings or on evidence. Id. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. We must look to the allegations in the pleadings, construe them in the plaintiffs favor, and look to the pleader’s intent. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). The plaintiff bears the burden to allege facts that affir matively demonstrate the trial court’s jurisdiction to hear a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228.

Immunity

“[Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit.” Id. at 224. Political subdivisions of the state, including cities, are entitled to immunity (referred to as governmental immunity) unless it has been waived. Reata Constr. Corp., 197 S.W.3d at 374. “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex.App.-Dallas 2009, pet. denied).

The Texas Supreme Court recently explained governmental immunity in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.2009). In Heinrich, a police officer’s widow brought a declaratory judgment action against several governmental entities and officials after her pension benefits were reduced. Id. at 369. The defendants filed pleas to the jurisdiction which the trial court denied. Id. The court of appeals affirmed the trial court’s order. Id. The supreme court affirmed in part and reversed in part, concluding that “while governmental immunity generally bars suits for retrospective money relief, it does not preclude prospective injunctive remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.” Id. at 368-69. As to suits against governmental entities, however, the court concluded, “[n]evertheless, as a technical matter, the governmental entities themselves — as opposed to their officers in their official capacity— remain immune from suit,” unless the claim challenges the validity of an ordinance or statute. Id. at 372-73. The court explained, “[f]or claims challenging the validity of ordinances or statutes, ... the Declaratory Judgment Act requires that the relevant governmental entities be made parties, and thereby waives immunity.” Id. at 373 n. 6. If the claim challenges actions taken under an ordinance or statute rather than the validity of the ordinance or statute itself, the governmental entity is immune from suit on the claim. Id.

Analysis

The trial court concluded that the City was not immune from the landowners’ requests for a judgment declaring that the City had not accepted, or had abandoned, public dedication of the easements. The landowners argue that the trial court ruled correctly because the Declaratory Judgments Act permits suits against the government “to clarify a person’s legal rights in relation to the government,” see Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (Vernon 2008), and that they ought to be able to sue the City to have their rights determined. The landowners note that section 37.004 of the Declaratory Judgments Act allows interested parties to obtain a declaration regarding their status under a statute or municipal ordinance:

(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Id. § 37.004. But subsection (b) of section 37.006 identifies the matters in which the municipality must be made a party:

(b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.

Id. § 37.006.

As was true in Heinrich, the landowners here do not challenge the validity of a City ordinance or statute. Instead, they ask the court to declare that the City has not accepted, or has abandoned, public dedication of the easements. Consequently, even if the landowners’ “rights, status, or other legal relations” were “affected by a ... municipal ordinance” under section 37.004, Heinrich states that the waiver of immunity under section 37.006 does not include all suits that could be brought under section 37.004. Section 37.006 only waives immunity for “claims challenging the validity of ordinances or statutes.” Id.; State v. BP Am. Prod. Co., 290 S.W.3d 345, 360 (Tex.App.-Austin 2009, pet. filed) (“The UDJA is not a general waiver of sovereign immunity”) (citing Heinrich, 284 S.W.3d at 370, and Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002)). As the BP America court concluded, “[f]or this reason, the UDJA cannot be used as a vehicle to obtain declarations having the effect of establishing a right to relief against the State for which sovereign immunity has not been waived.” BP Am., 290 S.W.3d at 360.

The landowners also argue that “[p]ri-vate parties may seek declaratory relief against governmental actors who allegedly act without legal or statutory authority,” citing IT-Davy, 74 S.W.3d at 855. As their statement acknowledges, however, the suits permitted by IT-Davy are against individual government actors, not against the government entity.

This issue has been discussed more recently by the Texas Supreme Court in Texas Department of Insurance v. Reconveyance Services, Inc., 306 S.W.3d 256 (Tex.2010) (per curiam). Reconveyance sued the Department for “a declaration that charging additional fees for the services Reconveyance wished to provide in Texas is not prohibited by the Texas Insurance Code.” Id. at 257. The supreme court concluded that the Department’s plea to the jurisdiction should have been granted under Heinrich because “Recon-veyance’s allegations and requested declaration are, in substance, ultra vires claims.” Id. at 258-59. The court explained:

In Heinrich, ... we confirmed that “suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money.” Heinrich, 284 S.W.3d at 372. However, “[t]o fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” Id. We held that “as a technical matter, the governmental entities themselves — as opposed to their officers in their official capacity — remain immune from suit” on such claims. Id. at 372-73. This rule “derives from the premise that the ‘acts of officials which are not lawfully authorized are not acts of the State.’ ” Id. at 373 (quoting Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945)). We concluded that suits complaining of ultra vires action may not be brought against a governmental unit possessed of sovereign immunity, but must be brought against the allegedly responsible government actor in his official capacity. Id.

Reconveyance, 306 S.W.3d at 258. Consequently, and as the court’s opinion in Re-conveyance confirms, the landowners’ claims “must be brought against the allegedly responsible government actor in his official capacity,” not against the City, because the claims do not challenge the validity of ordinances or statutes. Id.

The landowners argue that the City has waived the issue of whether a public official, rather than the City itself, should have been named as a defendant. We disagree. The City was not required to argue, and we are not required to determine, whether other persons that are not parties to the suit would be proper defendants in order to decide whether the trial court lacks subject-matter jurisdiction over the plaintiffs’ claims against the City.

The landowners also note that in Seals v. City of Dallas, 249 S.W.3d 750, 757 (Tex.App.-Dallas 2008, no pet.) (citing Bell v. City of Grand Prairie, 221 S.W.3d 317, 321 (Tex.App.-Dallas 2007, no pet.)), we previously stated, “[governmental immunity does not bar a declaratory judgment action unless the plaintiff seeks a declaration of the government’s liability for money damages.” In City of Seagoville v. Lytle, 227 S.W.3d 401, 410 (Tex.App.-Dallas 2007, no pet.), we also noted that “[c]er-tain declaratory judgment actions do not implicate the doctrines of sovereign or governmental immunity,” and stated, “[a] declaratory judgment action against the government seeking a declaration of a party’s rights and status under a statute is not barred by governmental immunity.” See also City of Dallas v. Martin, 214 S.W.3d 638, 644 (Tex.App.-Dallas 2006, pet. granted) (no governmental immunity in suits to construe legislation; trial court correct in denying City’s plea to jurisdiction to extent appellees’ claims for declaratory judgment were limited to declaring rights, status, and legal relations of parties under ordinance). At the time of these decisions, however, we did not have the benefit of the court’s analysis in Heinrich. And we were not called upon in Seals or Bell to determine whether the waiver of governmental immunity in section 37.006(b) of the Declaratory Judgments Act is limited to claims involving “the validity of a municipal ordinance or franchise,” or instead waives immunity for any declaratory relief sought under section 37.004.

Unlike our opinions in Seals, Bell, and Lytle, the supreme court in Heinrich was called upon to answer not only whether a permissible type of declaratory relief was sought, but also whether the suit could be “brought directly against the state or its subdivisions” rather than “the relevant government actors in their official capacity.” See Heinrich, 284 S.W.3d at 373-74. The supreme court concluded “the governmental entities themselves — as opposed to their officers in their official capacity— remain immune from suit,” unless there are “claims challenging the validity of ordinances or statutes.” Id. at 372-73 and n. 6.

Consequently, under Heinrich, we conclude that the trial court erred in denying the City’s plea to the jurisdiction because the landowners’ claims for declaratory relief in their third amended petition do not challenge the validity of a city ordinance, and because the claims are made against the City itself. We sustain the City’s first issue.

In its second issue, the City argues that the trial court erred in denying its plea to the jurisdiction as to appellees’ request for attorney’s fees. In its plea to the jurisdiction, the City contended that “there is no waiver of governmental immunity for attorney’s fees under chapter 37 of the Texas Civil Practice and Remedies Code.” In its brief on appeal, in addition to its argument that there is no waiver of immunity, the City contends that the landowners do not have a claim for attorney’s fees under the Declaratory Judgments Act because they “have no proper claim for declaratory relief.” The landowners counter that they have a proper claim for declaratory relief and are entitled to attorney’s fees under the Declaratory Judgments Act, citing City of Austin v. Roberson, No. 13-06-00218-CV, 2008 WL 802315, at ⅝3-5 (Tex.App.-Corpus Christi Mar. 27, 2008, no pet.) (mem. op.). They also argue that they are entitled to recover attorney’s fees in a suit to quiet title, citing Florey v. Estate of McConnell, 212 S.W.3d 439 (Tex.App.-Austin 2006, pet. denied).

The landowners do not cite to any specific waiver of immunity for their claim for attorney’s fees under the Declaratory Judgments Act. Neither Florey nor Roberson addressed the issue of governmental immunity. The landowners do argue that they are entitled to recover attorney’s fees on “a proper claim for declaratory relief,” and the trial court did not err in denying the City’s plea to the jurisdiction on the landowners’ claim for attorney’s fees.

In its reply brief, the City cites MBM Financial Corp. v. The Woodlands Operating Co., L.P., 292 S.W.3d 660, 667-71 (Tex. 2009), arguing that the landowners cannot rely on the Declaratory Judgments Act to recover fees when the underlying claims do not permit recovery of fees. The City argues that attorney’s fees are not available in actions for adverse possession, trespass to try title, or suits to quiet title, and appellees’ declaratory judgment claims duplicate those claims.

The issue raised in the City’s plea to the jurisdiction and addressed in the City’s appeal, however, is that the City did not waive its immunity to the landowners’ claim for attorney’s fees. The landowners’ response and the City’s reply address whether attorney’s fees are available for the landowners’ claims on the merits. While governmental immunity to a claim for attorney’s fees under the Declaratory Judgments Act may be waived in some circumstances, see Texas Education Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (“We conclude that by authorizing declaratory judgment actions to construe the legislative enactments of governmental entities and authorizing awards of attorney fees, the DJA necessarily waives governmental immunity for such awards.”), the landowners do not cite to or rely on cases discussing waiver. We agree with the City that the landowners did not establish a waiver of immunity for their claim for attorney’s fees.

We sustain the City’s second issue.

Landowners’ Cross-appeal

In the first issue of their cross-appeal, the landowners complain that the trial court erred by granting the City’s plea to the jurisdiction as to their request for injunctive relief. They argue that governmental immunity is waived in injunction actions that are related to declaratory relief, citing Greater New Braunfels Home Builders Ass’n v. City of New Braunfels, 240 S.W.3d 302 (Tex.App.-Austin 2007, pet. denied). However, the issue of governmental immunity with respect to a request for injunctive relief was not raised or discussed in the City of New Braunfels case. See generally id. at 303-11.

The landowners also cite our opinion in Bell for the proposition that “a city does not enjoy immunity in an injunction case.” See Bell, 221 S.W.3d at 325 (“We conclude appellants’ request for an injunction requiring the City to comply with section 143.041 in the future is not barred by governmental immunity.”). As we discussed previously, however, our conclusion in Bell that the firefighter plaintiffs could seek injunctive and declaratory relief regarding future compliance with a city ordinance was reached without the benefit of the Heinrich opinion and did not address the scope of declaratory relief available or the immunity of the governmental entity itself. See Bell, 221 S.W.3d at 324-25.

Based on our previous analysis of the Heinrich case, we conclude that the trial court did not err in granting the City’s plea to the jurisdiction as to the landowners’ claims for injunctive relief in the third amended petition. See Heinrich, 284 S.W.3d at 376-77. We overrule the landowners’ first issue.

In their second issue, the landowners argue that the trial court erred in granting the City’s plea to the jurisdiction as to their request for declaratory judgment under the Texas Water Code. As with their other claims for declaratory relief, the landowners’ claims under the Texas Water Code do not challenge the code’s validity, but rather contend that the City’s actions violate provisions of the Texas Water Code. Additionally, the landowners did not plead that any waiver of immunity applies to their Texas Water Code claims.

The landowners rely on Abbott v. City of Princeton, 721 S.W.2d 872, 875-76 (Tex.App.-Dallas 1986, writ ref'd n.r.e.), disapproved of on other grounds by Schneider Nat'l Garriers, Inc. v. Bates, 147 S.W.3d 264, 281 and n. 79 (Tex.2004), in which we concluded that a city was a “person” for purposes of the Texas Water Code’s prohibition on diversion or impounding of surface water in a manner that damages property of another. But Abbott is distinguishable for two reasons. First, we did not decide an issue of governmental immunity. See Abbott, 721 S.W.2d at 875-76. Second, Abbott was decided before the enactment in 2001 of section 311.034 of the government code, which provides in part, “[i]n a statute, the use of ‘person,’ as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009).

For the reasons we previously discussed regarding the other requests for declaratory relief, we conclude that the trial court did not err in sustaining the City’s plea to the jurisdiction regarding the landowners’ request for declaratory relief under the Texas Water Code. See Heinrich, 284 S.W.3d at 372-73 (governmental entities remain immune from suit unless claim challenges validity of ordinance or statute). Consequently, we overrule the landowners’ second issue.

In their third issue, the landowners argue that the trial court erred by sustaining the City’s plea to the jurisdiction regarding then claim for adverse possession. The landowners do not allege any statutory provision by which the City has “clearly and unambiguously” waived its governmental immunity to their adverse possession claim. See Tex. Gov’t Code Ann. § 311.034. Instead, they argue that the trial court should have denied the City’s plea to the jurisdiction as to the adverse possession claim because fact issues remain that need to be developed, citing Miranda. But this contention addresses the merits of the landowners’ adverse possession claims, not the question whether the City has waived its immunity so that the trial court may exercise jurisdiction over the claims.

In addition, the landowners’ claim to title to the property by adverse possession would be determined through a trespass to try title action. Tex. Prop.Code Ann. § 22.001 (trespass to try title action is method of determining title to lands or other real property). The landowners argue that the City is not immune from their trespass to try title claims, citing Poyretto v. Patterson, 251 S.W.3d 701, 708 (Tex. App.-Houston [1st Dist.] 2007, no pet.). The court in Poyretto, however, recognized the rule that “the State and Galveston are immune from a trespass to try title action,” but concluded that the action could continue against individual government officials. See Poyretto, 251 S.W.3d at 710, 711-12 (citing State v. Lain, 162 Tex. 549, 552, 349 S.W.2d 579, 581 (1961)). As a result, we conclude that the trial court did not err in dismissing the landowners’ claim for title to the property by adverse possession. See also BP America, 290 S.W.3d at 352-59 (trespass to try title claim could proceed against state official, but would be barred by sovereign immunity if asserted against the State). We overrule the landowners’ third issue.

Status of Pleadings — Claims Remaining

The landowners contend that the trial court ruled only on causes of action that were alleged in their third amended petition, and that the causes of action alleged in their fourth and fifth amended petitions “will continue regardless of how this Court rules on this appeal” because they are “pending unresolved matters between the parties.” The City appears to agree that there are “claims remaining in the trial court,” and states that the trial court’s ruling “did not consider whether the City was immune from suit for the claims added after the Third Amended Petition,” but also states that “after five amended pleadings,” we should affirm the trial court’s order dismissing certain of the landowners’ claims, and reverse the portion of the order denying the City’s plea to the jurisdiction. We conclude that the City’s plea to the jurisdiction and the trial court’s order addressed all but two of the claims asserted in plaintiffs’ operative fifth amended petition.

In its first amended answer, the City-asserted a special exception and plea to the jurisdiction to the plaintiffs’ original petition, claiming that plaintiffs had failed to plead a valid waiver of governmental immunity as to any of their claims. The trial court granted the special exception and gave plaintiffs the opportunity to re-plead. The plaintiffs amended their petition a second and third time, and the City filed pleas to the jurisdiction to each amendment. The City’s amended plea to the jurisdiction filed on July 2, 2009, addressed the claims in plaintiffs’ third amended petition. Plaintiffs filed a fourth amended petition on July 8, 2009. The hearing on the City’s plea to the jurisdiction was held on July 9, 2009. At the hearing, the trial court indicated it would grant part and deny part of the plea to the jurisdiction. On July 10, 2009, after the hearing but before the trial court signed its order, plaintiffs amended their petition a fifth time. The trial court’s order was signed on July 13, 2009, granting the plea in part and denying it in part. Consequently, the fifth amended petition is the current live pleading. And as an amended pleading, it supersedes and supplants earlier pleadings. Tex.R. Civ. P. 65; Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.).

Generally, “[i]f the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction but the defects in pleading are curable by amendment, the issue is one of pleading sufficiency and the pleader should be afforded an opportunity to amend.” Bell, 221 S.W.3d at 321. But where a plaintiff has been given a reasonable opportunity to amend his pleading, and the amended pleading still does not allege facts that would constitute a waiver of immunity, the court should dismiss the case with prejudice. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004).

The landowners argue that the City’s plea to the jurisdiction did not address the following causes of action alleged in the fifth amended petition, and that these claims survive the plea to the jurisdiction, the trial court’s order on the plea, and the appeal: their request for a declaration that a city street cannot be constructed on Ravine Drive extension under City ordinances; their request for a declaration that City Code section 51A-8.502(d) is in conflict with state statutes; their constitutional due course/due process claims; and their trespass to try title claim.

Our review is limited to the grounds set forth in the plea to the jurisdiction before the trial court. See City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686-88 (Tex.App.-Dallas 2003, pet. denied) (where City did not raise issue of immunity to contract claim in plea to jurisdiction, bank never given opportunity to amend petition to meet challenge, and court could not consider issue on appeal).

We conclude that the City’s plea addressed the trial court’s jurisdiction over all requests of the landowners for declaratory judgment, with two exceptions. First, in paragraph 28 of their fifth amended petition, the landowners seek a declaratory judgment that “ § 51A-8.502(d) of the Dallas City Code conflicts with §§ 212.013 and 212.014, Tex. Loc. Gov’t Code, and is null and void.” Sections 212.013 and 212.014 of the local government code permit a plat to be vacated and replatted under certain circumstances. See Tex. Local Gov’t Code Ann. §§ 212.013, .014 (Vernon 2008). The landowners contend that section 51A-8.502(d) of the Dallas City Code “violate[s] state law” because it “includes additional requirements that prevent the plat and its offer of dedication from being vacated under state statute.” Specifically, the landowners contend that the city code “prohibit[s] revocation or vacation of an offered street easement because the Turleys built a house on the Turley Tract.” This challenge to a city ordinance was not included in the third amended petition or addressed in the City’s plea to the jurisdiction.

Second, the landowners assert for the first time in their fourth amended petition, and also allege in their fifth amended petition, that if governmental immunity bars their claims, then they have been denied due process and access to the courts for a remedy. The City’s plea to the jurisdiction did not include these claims, the trial court did not rule on them, and they are not mentioned in the City’s appeal.

The landowners asserted a trespass to try title claim in their original petition, omitted it in their third amended petition, then reasserted it in their fourth and fifth amended petitions. The landowners’ fifth amended petition includes a count entitled “Adverse Possession/Trespass to Try Title,” while the third amended petition entitles this count only “Adverse Possession.” The substance of the allegations in both petitions, however, is that the Aarons and the Turleys claim title to the property by adverse possession, and the City’s plea and the trial court’s order both addressed this claim. These claims were addressed in substance in the City’s plea to the jurisdiction and in the trial court’s order. Adding “trespass to try title” to the landowners’ adverse possession claims by pleading amendment does not present any new claim for which the landowners can demonstrate a waiver of immunity, and the trial court properly dismissed the adverse possession claims. Sykes, 136 S.W.3d at 639. Consequently, we conclude that except as to the challenge to the city ordinance pleaded in paragraph 28 of the landowners’ fifth amended petition, and the due process and access to the courts claims in paragraph 35 of the landowners’ fifth amended petition, the City has challenged, and the trial court has ruled on, all of the claims in the landowners’ operative petition.

Pending Motions

Prior to oral argument, the City filed a motion to correct the caption of the case to delete any reference to the Bar-retts. In an order dated November 20, 2009, we deferred ruling on the motion, but ruled that the Barretts were not entitled to present oral argument at submission because they had not filed a brief on the merits of the interlocutory appeal. The parties to the appeal before us are the landowners and the City. On our own motion on August 12, 2009, we consolidated a petition for writ of injunction filed by the landowners with the interlocutory appeal. The petition for writ of injunction listed the Barretts as real parties in interest. The landowners acknowledged in the petition for writ of injunction that they requested the same relief as they sought in their emergency motion for temporary relief, which we granted in part on July 13, 2009, and denied in part on August 12, 2009. The Barretts participated in the briefing regarding the emergency motion, and our order of July 13 prohibited the Barretts as well as the City from taking action to cut down trees or install a storm water line in the disputed area pending further order of this Court. While we agree that the Barretts are not parties to the appeal of the trial court’s ruling on the plea to the jurisdiction, and we do not include them as parties in our judgment today, their participation in related motions was proper, and they will remain on our service lists for this cause number. We deny the City’s motion to correct the caption.

We next address the landowners’ motion to strike the City’s pleading entitled “Additional Authorities and Record Cite.” The City filed this pleading the day before oral argument without requesting leave of court. In the pleading, the City argued that we should affirm the trial court’s order granting the plea to the jurisdiction for the additional reason that the landowners’ claims were not yet ripe. The City asserted that this ripeness ground was included in its plea to the jurisdiction, and the landowners did not challenge it on appeal; therefore, the City argued that we could affirm the trial court’s order on this ground alone. But even if we consider the City’s ripeness argument, it would not alter our conclusions regarding the trial court’s rulings on the plea to the jurisdiction. The City’s ripeness argument did not extend to the parties’ more fundamental disputes regarding title to the property and the City’s use of the easements. We do not need to decide whether the ripeness argument was properly before us.

In motions for emergency relief filed after submission of the case, the landowners and the Barretts sought further declarations regarding removal of gates located on the disputed property. The Barretts also sought withdrawal of our order of July 13, 2009, asserting that we lacked jurisdiction to enter it. Because our ruling today addresses only the City’s plea to the jurisdiction and results in the remand of the cause to the trial court, we vacate our orders of July 13, 2009 and August 12, 2009, and deny the landowners’ and the Barretts’ pending motions for emergency relief.

Conclusion

Because the City is immune from suit on the claims asserted in the landowners’ third amended petition, we overrule the landowners’ issues and sustain the City’s. We affirm in part and reverse in part the trial court’s order on the City’s amended plea to the jurisdiction, and remand the case to the trial court.

      . The landowners refer to the right-of-way as "Nondedicated Ravine Drive.” The City refers to the right-of-way as the "Ravine Drive Extension.” Whether this portion of Ravine Drive was actually dedicated is disputed by the parties. We will refer to it as the "Ravine Drive extension,” or, if together with the street easement, "the easements,” for purposes of this opinion.

      . Although the Barretts are not parties to the interlocutory appeal we resolve today, they participated in briefing before this Court regarding emergency motions filed by the landowners during the time this appeal was pending.

      . In their brief the landowners contend that they alleged that a city ordinance violated the local government code; their citation, however, is to their fifth amended petition, not the third amended petition that was the subject of the trial court's order.

      . As explained by the Heinrich court:
      Nonetheless, as a technical matter, the governmental entities themselves-as opposed to their officers in their official capacity-remain immune from suit. We have been less than clear regarding the permissible use of a declaratory remedy in this type of ultra vires suit. Must it be brought directly against the state or its subdivisions? Or must it be brought against the relevant government actors in their official capacity? Compare Fed. Sign [v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997)] ("A private litigant does not need legislative permission to sue the State for a state official's violations of state law.”) (citations omitted), with IT-Davy, 14 S.W.3d at 855 ("Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority.”) (citations omitted). It seems to us, however, that because the rule that ultra vires suits are not "suit[s] against the State within the rule of immunity of the State from suit” derives from the premise that the "acts of officials which are not lawfully authorized are not acts of the State,” [quoting Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945)] it follows that these suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity. This is true even though the suit is, for all practical purposes, against the state.

        Heinrich, 284 S.W.3d at 372-73 (internal footnotes omitted).

      . We concluded in Lytle that the portion of Lytle’s declaratory judgment action that sought back pay was barred by governmental immunity, but the portion that sought withdrawal of a disciplinary action and reinstatement to his original position and pay grade did “not seek an award of money damages and is not barred by governmental immunity.” Lytle, 227 S.W.3d at 410. In Lytle, we relied on Texas Education Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (UDJA “contemplates that governmental entities may be — indeed, must be — -joined in suits to construe their legislative pronouncements,” therefore, "by authorizing declaratory judgment actions to construe the legislative enactments of governmental entities and authorizing awards of attorney fees, the DJA necessarily waives governmental immunity for such awards”). Id. The landowners also cite Texas Department of Banking v. Mount Olivet Cemetery Assn, 27 S.W.3d 276, 281 (Tex.App.-Austin 2000, pet. denied). City of LaPorte v. Barfield, 898 S.W.2d 288, 297 (Tex.1995), and Beacon National Insurance Co. v. Montemayor, 86 S.W.3d 260, 266 (Tex. App.-Austin 2002, no pet.), for the proposition that "[a] party may also maintain a suit against governmental defendants to determine its rights without obtaining legislative permission." The courts in Mount Olivet and Beacon National relied on City of La Porte, which in turn relied on Leeper. See City of La Porte, 898 S.W.2d at 297; Beacon Nat’l Ins. Co., 86 S.W.3d at 266; Mount Olivet, 27 S.W.3d at 281. These cases, decided before Heinrich, are distinguishable for the same reasons we distinguish Seals, Bell, and Lytle.

      . The landowners assert that they "should have the right to amend their pleadings upon remand” to include individual City officials. Because we are remanding the cause for the trial court to consider claims not addressed in the plea to the jurisdiction rather than dismissing all of the landowners' claims, the landowners will have the opportunity to seek to join additional parties or amend their pleadings as the rules may allow. See, e.g., TexR. Civ. P. 63 (amendments and responsive pleadings); 39-41 (joinder of parties).


source: Caselaw Access Project

author: Justice RICHTER.

license: Public Domain

text:
    In the Matter of K.E., a Child, Appellant.
    No. 05-09-00522-CV.
    Court of Appeals of Texas, Dallas.
    July 14, 2010.

      April E. Smith, Mesquite, TX, for Appellant.
    Michael R. Casillas, Dallas District Attorney, Dallas, TX, for Appellee.
    Before Justices MOSELEY, RICHTER and FRANCIS.
   OPINION

Opinion By

Justice RICHTER.

K.E. appeals the trial court’s order adjudicating him delinquent and committing him to the Texas Youth Commission (“TYC”) for six years. In six issues, appellant claims (1) the evidence is legally and factually insufficient to support the trial court’s finding that he could not be properly supervised at home; (2) the trial court abused its discretion in committing him to TYC; (3) the trial court failed to comply with the Family Code by failing to specify the reasons for the disposition; (4) the trial court failed to comply with the Family Code by failing to advise appellant of the procedures for sealing his records; and (5) the trial court’s order should be reformed to reflect the correct name of the complainant on Count V. We affirm the trial court’s judgment, as modified in Count V, to reflect the correct name of the complainant.

BACKGROUND

Dallas police officer Walls was patrolling an area in South Oak Cliff when he saw appellant and another juvenile, B.J., outside past the City’s juvenile curfew. The juveniles recognized Officer Walls, who was in uniform, and ran up to an apartment. B.J. had a key that allowed them to enter one of the apartments. Officer Walls pursued the juveniles into the apartment and saw B.J. jump over an exterior balcony. Another officer pursued B.J., while Officer Walls found appellant lying on the floor in the bedroom, pretending to be asleep, with his arm outstretched near a couch. Underneath the couch were two .45 caliber handguns. Appellant never attempted to take possession of or shoot the guns. After appellant was handcuffed he showed the officers two SKS rifles, with fully loaded magazines, in a closet in the apartment. Appellant was the only person in the apartment at the time. The officers found crack cocaine in plain view on the kitchen counter. After searching the apartment they also found cocaine, marijuana, PCP (phencyclidine), alprazolam, and four or five scales frequently used in the drug trade to weigh and package drugs. Some of the drugs were already packaged to be sold.

A five-count petition was filed against appellant and a grand jury approved two counts for a determinate sentence: possession with intent to deliver cocaine (4 grams or more but less than 200 grams); and possession with intent to deliver phencycli-dine (4 grams or more but less than 200 grams). Tex. Health & Safety Code Ann. §§ 481.102(3)(D) (cocaine), 481.102(8) (phencyclidine), 481.112(a), (d) (Vernon Supp.2009); Tex. Fam.Code Ann. § 53.045(a)(10) (Vernon 2002) (referral of petition to grand jury for child engaged in delinquent conduct that constitutes habitual felony). Appellant waived a jury trial and entered pleas of true to both counts.

The trial court held an adjudication and disposition hearing before assessing punishment. Officer Walls is with the gang unit of the Dallas Police Office. He testified at the hearing concerning the facts surrounding appellant’s arrest and identified appellant as an associate of the DFW gang, an “up and coming gang” that engaged in violent activity and drug sales. He also testified that the apartment complex where appellant was arrested is known for gang activities and drug sales. Officer Walls recommended that appellant be placed in TYC. He said that “these guys don’t learn with a slap on the wrist ... two days later, you can catch them doing the same thing over and over again.” He also did not believe that a placement for six to nine months, with release when appellant turned eighteen, would be sufficient. Instead, he recommended several years in TYC. Officer Walls acknowledged that he had never seen appellant sell drugs, and that appellant was cooperative after he was arrested. He estimated that the street value of the drugs found in the apartment was between $5,000-$10,000, and the amount of drugs was sufficient to cover a “few” days’ sales.

Appellant testified that he has not been a member of a gang since 2006, but that he associated with gang members. Appellant claimed he never sold any drugs, but he hung out at the apartment to get “free weed.” Appellant admitted that he knew drugs were sold from the apartment and that he smoked about five marijuana “blunts” each day. Appellant was almost seventeen years old at the time of the hearing and said that he had been smoking marijuana since he was fifteen years old. Despite the daily marijuana use, a chemical assessment showed that appellant had a low level of substance abuse.

An unidentified probation officer testified that appellant needed rehabilitation. The probation officer recommended that for the protection of appellant and the public, appellant be assigned Progressive Sanction Level 6 or 7 and committed in TYC. He acknowledged that appellant’s home was appropriate, but that the level of supervision in the home was not. Appellant’s mother’s employment required her to be out of the home until approximately 6:00 p.m. every evening. Although appellant’s mother testified that she would reduce her hours and do whatever she could to provide more supervision and get her son “on the right track,” the evidence established that she did not receive any governmental assistance, could not pay court costs, and she would not be paid if she reduced her hours. There was no other adult in the home to provide supervision, but appellant has two younger siblings who reside in the home.

Appellant’s mother requested that her son be placed on probation or in a facility where he could learn a trade. She testified that she moved her family from Indiana to Dallas two and one-half years earlier to escape a violent situation with her “ex,” who is not appellant’s father. She did not know the area she moved into, but chose it because there was bus service to her job. She stated that she does not have any problems with appellant; he is respectful and does his chores. Appellant’s mother has since moved to a house in DeSoto to provide a better environment for the family. Appellant’s mother also admitted that she did not know her son smoked five marijuana “blunts” a day, or that he associated with gang members, until she learned about it from the reports in this proceeding.

The evidence established that appellant had been admitted to three other placements: Lyle Medlock Center, Dallas Youth Village, and Gulf Coast Trade School. Despite the availability of the other placements, the probation officer and the arresting officer continued to recommend placement in TYC, based upon the nature of the offenses, appellant’s history of gang involvement and drug use, and the fact that he was almost seventeen.

A psychological screen of appellant was admitted into evidence. It indicated that (1) appellant needs a well structured and supervised environment; (2) appellant needs therapeutic intervention to help with decision making and judgment; (3) upon release appellant would benefit from a mentor; (4) educational needs should be clarified; and (5) appellant would benefit from an assessment to determine a vocational interest. The probation officer acknowledged that all of those recommendations could be satisfied at the other placements.

Appellant has not had any other referrals to juvenile court. However, the predisposition report indicated that appellant had been referred to an alternative education program the preceding year for “almost getting into a gang fight.”

DISCUSSION

Sufficiency of Evidence on Quality of Care and Level of Supervision

In his first two issues, appellant claims the evidence is legally and factually insufficient to support the trial court’s finding that he could not be provided the quality of care and level of supervision to meet the conditions of probation. A juvenile court can only place a child outside of the home if the trial court finds, and includes in the disposition order, that (1) removal is in the child’s best interest; (2) reasonable efforts were made to prevent or eliminate the need for removal; and (3) the child cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. Tex. Fam.Code Ann. § 54.04(i)(l) (Vernon Supp.2009). Appellant contends that the evidence is legally and factually insufficient to support the third requirement.

When reviewing the legal and factual sufficiency of a disposition order in a juvenile case, we use a civil standard. In re T.E.G., 222 S.W.3d 677, 678 (Tex.App.-Eastland 2007, no pet.); In re C.G., 162 S.W.3d 448, 452 (Tex.App.-Dallas 2005, no pet.). To determine if the evidence was legally sufficient, we consider only the evidence and inferences that support the finding, and will set aside the placement only if there is no evidence of probative force to support the findings. Id. To determine if the evidence was factually sufficient, we weigh all the evidence and set aside the disposition only if it is against the great weight and preponderance of the evidence to be manifestly unjust. Id.

Appellant was found in an apartment with a large amount of drugs and loaded weapons. The offenses charged included two felony drug charges of possession with intent to deliver. Appellant associated with members of a gang known for drug sales and violent activity. Because of these circumstances, the probation officer and arresting officer both recommended placement in TYC and not probation or placement in another facility. Appellant’s drug use and association with gang members occurred over a period of two years while appellant resided with his mother, yet she was completely unaware of these issues. The mother provided the only adult supervision in the home, and she needed to work in order to support the family. While the mother testified that she was willing to reduce her hours at work to adequately supervise appellant, the trial court heard this testimony and was in the best position to determine the mother’s sincerity and ability to follow through on her promise to adequately supervise her son. C.G., 162 S.W.3d at 452. The probation officer testified that the home was appropriate, but the supervision was not. Viewing the evidence under the appropriate standards of review, we conclude the evidence was legally and factually sufficient to support the trial court’s finding that appellant could not be provided the level of supervision necessary to meet the conditions of probation. Accordingly, we overrule appellant’s first two issues.

Abuse of Discretion by Commitment of Juvenile to TYC

In his third issue, appellant argues that the trial court abused its discretion in committing him to TYC. A juvenile court has broad discretion in determining the appropriate placement for a juvenile who has been adjudicated as engaging in delinquent behavior. C.G., 162 S.W.3d at 452. The test for abuse of discretion is whether the trial court acted in an unreasonable or arbitrary manner, without reference to guiding rules and principles. In the Matter of A.R.D., 100 S.W.3d 649, 650 (Tex.App.-Dallas 2003, no pet.).

The arresting officer and probation officer both recommended placement in TYC. Officer Walls testified that TYC was the appropriate placement because “these guys don’t learn with a slap on the wrist ... two days later, you can catch them doing the same thing over and over again.” The evidence also showed that appellant was found in an apartment with a significant amount of drugs and weapons and he was familiar with the guns’ location. Because of the amount of drugs and weapons found, Officer Walls testified that placement for six to nine months, followed by release to his home, would be appropriate placement for appellant. Although there was evidence that placement at other facilities might be appropriate, the trial court does not abuse its discretion when its decision is based on conflicting evidence. In re B.N.F., 120 S.W.3d 873, 877 (Tex.App.-Fort Worth 2003, no pet.). On this record, we conclude the trial court did not abuse its discretion when it determined appellant should be committed in TYC. Appellant’s third issue is overruled.

Specify Reasons for Disposition in the Order

In his fourth issue, appellant contends that the order in this case does not satisfy the requirements of section 54.04(f) of the family code, and therefore, this case should be remanded to the trial court for reformation. Section 54.04(f) provides that the “court shall state specifically in the order its reasons for the disposition.” Tex. Fam.Code Ann. § 54.04(f) (Vernon Supp.2009). The reason for this requirement is so the child will have notice of the trial court’s reasons for the disposition, and the appellate court can determine whether the evidence supports those reasons. A.R.D., 100 S.W.3d at 650 (referring to similar language in section 54.05(f)).

Merely reciting the statutory grounds for disposition is not sufficient to justify the trial court’s ruling. In re J.T.H., 779 S.W.2d 954, 959 (Tex.App.-Austin 1989, no writ) (applying section 54.04(c)). However, reciting the statutory language and supplementing it with additional findings is sufficient to meet the requirements of the Texas Family Code. See In re P.L., 106 S.W.3d 334, 338 (Tex. App.-Dallas 2003, no pet.) (order tracking language of section 54.05 and explaining court’s reasons was appropriate).

In this case the trial court made findings in two exhibits to the order. Exhibit B states that “reasonable efforts” had been made to prevent the need for removing the child from his home, including that appellant had been referred to an alternative education program last year; he had received psychological and chemical assessments through the juvenile department; and he had been arrested for multiple felony drug charges and evading arrest. In addition, in an attachment to Exhibit B, the court found that it was in appellant’s best interest to be placed outside of the home because he (1) may be dangerous to himself or the public; (2) had a history of aggression toward others; and (3) had been arrested for multiple felony drug offenses, evading arrest, and four guns had been found nearby when he was arrested.

The elements of section 54.04(f) are supported by the findings in the exhibits. Therefore, we conclude that the facts set forth in the exhibit and attachment to the order were sufficient to satisfy the requirements of section 54.04(f) and we overrule appellant’s fourth issue.

Advising Appellant of Procedures to Seal Records

In his fifth issue, appellant contends that the reporter’s records fails to indicate that the trial court advised him of his right to have his record sealed pursuant to section 54.04(h)(2) of the Texas Family Code. Section 54.04(h)(2) requires the juvenile court judge to advise the child of the procedures for sealing the record under section 58.003. Tex. Fam.Code Ann. § 54.04(h)(2) (Vernon Supp.2009). Appellant argues that the reporter’s record indicates that the trial court did not comply with this requirement. While the reporter’s record does not contain a transcription of the court’s advising the appellant of the procedures for sealing his records, the adjudication and judgment of disposition order states that the “Court instructed the child and the parents of the procedure to seal the files and records.... ” Therefore, the record reflects that the court provided the instructions required by section 54.04(h)(2). We overrule appellant’s fifth issue.

Reformation of Order

Finally, appellant complains that the order should be reformed to indicate the name of the complainant on Count V. The State agrees that this reform is necessary. We have the authority to modify incorrect judgments. Tex.R.App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. refd). Based on the record before us, we modify the trial court’s adjudication and judgment of disposition order to reflect the addition of the complainant, A. Aleman, and affirm the judgment as modified.

      . Some changes were made to the Family Code and Health and Safety Code since the date of the offense and are published in the 2009 Supplement to Vernon’s Texas Codes Annotated, but those changes do not impact the provisions cited in this opinion. Therefore, we cite to the most recent versions of the statutes.


text:
    COMMUNITIES HELPING COMMUNITIES, INC., Appellant, v. CITY OF LANCASTER, Texas and Columbus Como d/b/a C&W Wrecking & Demolition, Appellees.
    No. 05-08-01516-CV.
    Court of Appeals of Texas, Dallas.
    July 14, 2010.

      Susan H. Durham, Daniel L. Sullivan, Dallas, for appellant.
    Steven S. Snelson, Gerstle, Minissale, Snelson, Darrell G-M Noga, Dallas, for appellees.
    Before Justices RICHTER, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by

Justice RICHTER.

This action arises from the demolition of four houses owned by the appellant, Communities Helping Communities, Inc. (“CHC”), a non profit corporation. The City of Lancaster (“City”) and C&W Wrecking & Demolition (“C&W”) filed five motions for summary judgment, two of which were joint motions. All five motions for summary judgment were granted by the trial court. CHC raises two issues on appeal that relate to only two of the motions for summary judgment. Specifically, CHC argues the trial court erred in granting summary judgment on the issue of damages and that it had standing to assert its claim. We conclude the trial court did not err and affirm the trial court’s judgment.

BACKGROUND

CHC owned four, unoccupied, condemned houses in Lancaster, Texas. CHC was aware that the houses did not meet local building codes, but it intended to remediate the houses and then rent them and use the rental income for charitable purposes. CHC obtained the property by deed, prior to this litigation, at a cost of $20,000. The seller of the property, not a party to this litigation, provided financing and CHC executed a promissory note and a deed in trust to secure the purchase price of the property.

The City warned CHC that the houses violated City building code and gave CHC sixty days to bring the houses into compliance. The houses were not remediated and on June 28, 2006, the City issued a demolition order authorizing immediate demolition of the four houses. CHC filed an application for a Temporary Restraining Order (“TRO”) and obtained a TRO on June 30, 2006. On July 10, 2006, the City entered into a contract with C&W to demolish fifteen properties in the City of Lancaster, including the four houses owned by CHC. (“Demolition Contract”). (The City and C&W are referred to herein jointly as “appellees” or “defendants”). The Demolition Contract included penalties if C&W did not complete the work quickly. The City did not inform C&W that the TRO was in effect. On July 13, 2006, the City agreed to an extension of the TRO, and a hearing for a temporary injunction was set for July 28, 2006. It was also the date, C&W demolished the houses owned by CHC. The hearing on the temporary injunction never took place, because the houses had already been demolished.

Following demolition, CHC filed an amended petition that included a federal cause of action. The City filed a Notice of Removal and the proceeding was transferred to the U.S. District Court for the Northern District of Texas. The federal court remanded the action, finding that the federal claim for a taking under the U.S. Constitution was not ripe until CHC fully litigated its claim under the Texas Constitution and its claim was denied.

During the course of this litigation, ap-pellees purchased the promissory note and all rights under the deed of trust from the original seller of the houses. At that time, CHC was in default under the note. However, there was a Second Amended Modification and Extension Agreement (“Modification Agreement”) in effect that provided that CHC would not be required to make any payments until thirty days after a final judgment was entered in this litigation. The Modification Agreement further provided that it would remain in effect until February 29, 2008. After appellees became the owners of the note and deed of trust they did not agree to any further extensions. The Modification Agreement expired by its own terms on February 29, 2008, and CHC was in default under the terms of the note and deed of trust.

On March 31, 2008, CHC filed a Second Amended Petition against the City and C&W requesting the court to order the City Housing and Advisory Appeals Board to rescind the demolition order, and claiming negligent demolition, wrongful violation of the TRO, tortious interference with contract, and conspiracy. The amended petition also asserted claims against the City for wrongful taking under the U.S. and Texas Constitutions.

The City and C&W then filed a total of five traditional and no-evidence motions for summary judgment two of which were joint motions. The City filed two separate motions for summary judgment claiming sovereign immunity as to the negligence, tortious interference and civil conspiracy claims. C&W moved for summary judgment claiming there was no evidence of wrongful violation of the TRO, conspiracy, or tortious interference. The first joint motion for summary judgment was a no-evidence motion for summary judgment on all claims on the basis that there was no evidence of damages. The other joint motion for summary judgment alleged that CHC deeded away the right to sue in the deed of trust and thus CHC lacked standing to assert any claims.

CHC only responded to the two joint motions for summary judgment. CHC filed a two page response to the motion for summary judgment on lack of damages. In its response, CHC alleged that the evidence in the appendix attached to its motion provided proof of damages and argued that cost of repair was the proper measure of damages, not diminution in value. In response to the joint motion for summary judgment on the issue of standing, CHC argued that the deed of trust created only a lien and it retained any interest in any damages recovered in excess of the lien. On September 4, 2008, the trial court entered an order granting all five of the motions for summary judgment and ordered that CHC take nothing from the City and C&W. Only the two joint motions for summary judgment are at issue on appeal.

Standards for Summary Judgment

On appeal, we review a summary judgment de novo to determine whether a party’s right to prevail has been established as a matter of law. Stancu v. Stalcup, 127 S.W.3d 429, 431-32 (Tex.App.Dallas 2004, no pet.). When a party moves for a no evidence summary judgment, he is contending that the adverse party has no evidence to prove at least one element of the claim. Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex.App.-Dallas 2004, no pet.); Tex.R. Civ. P. 166a(i). Once a party brings a no-evidence motion for summary judgment, the burden is on the non-mov-ant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). We review the entire record in a light most favorable to the non-movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). Under the standards for a traditional motion for summary judgment the movant must establish that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). When a party appeals a traditional motion for summary judgment the issue we decide is whether the summary judgment proof establishes that the mov-ant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). When a defendant moves for a traditional summary judgment he must disprove, as a matter of law, one of the essential elements of the plaintiffs cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). When a party moves for summary judgment on multiple grounds and the trial court order grants summary judgment without specifying the grounds relied upon, the party appealing that order must negate all possible grounds upon which the order could have been based or the judgment must be affirmed on any of the grounds not complained of. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

No Evidence Summary Judgment On the Issue of Damages

The City and C&W moved for summary judgment on the grounds that CHC “has no evidence of damages using the proper measure of damages allowed by law in this case.” In their joint motion for summary judgment, the City and C&W argued that the correct measure of damages for permanent damage to real property is the difference in the fair market value of the property before the damage and the fair market value of the property after the damage. City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex.1997). The City and C&W argued that the only measure of damages presented by CHC was the cost of replacement and that this was not the correct measure of damages. In addition, the City and C&W argued that CHC had presented no evidence on loss of business reputation, no evidence of loss of good will and had failed to show any basis to recover attorney fees, the other damages claimed by CHC. CHC filed a limited response to the motion for summary judgment and argued (1) the documents attached to its response prove the existence of a material fact concerning damages; and (2) the proper measure of damage is the cost of repairs, citing Hollingsworth Roofing Co. v. Morrison, 668 S.W.2d 872 (Tex.App.-Fort Worth 1984, no writ).

In its brief on appeal, CHC sets forth a three sentence argument why the trial court erred in granting the City and C&W’s motion for summary judgment on the issue of damages. CHC states:

Appellees also sought and obtained in the trial court summary judgment on the basis that there was no evidence that the property had been rendered less valuable by the demolition. Appellant provided evidence in the form of an affidavit by its president that the value of the property had indeed been reduced by the demolition ... This evidence is sufficient.

These three sentences merely state that CHC provided evidence in the trial court that the property was rendered less valuable. CHC’s brief does not provide any case citations on the proper measure of damages, any substantive analysis, or otherwise explain how the evidence is sufficient to defeat the City and C&W’s motion for summary judgment. It is a well established rule that bare assertions of error, without argument or authority, waive error. Tex.R.App. P. 38.1 (appellate briefs must “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”) The issues are waived on appeal if the appellant fails to comply with the rules. Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Accordingly, we conclude that CHC waived the damage issue by failing to support it with appropriate authority on appeal. Tex.R.App. P. 38.1. In addition, CHC did not argue to the trial court that it had evidence to support diminution in value. Because the argument was not presented in the trial court, we may not consider it for the first time on appeal. See Tex.R.App. P. 33.1; Tex.R. Civ. P. 166a(c)(“[i]ssues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal”). Therefore, all issues regarding damages are overruled.

In its second issue on appeal, CHC argued that the trial court erred in granting the joint motion for summary judgment on standing. However, we need not decide the second issue raised by CHC. Even if CHC had standing to assert these claims, its claims fail because CHC did not prove damages. Star-Telegram, 915 S.W.2d at 473 (summary judgment will be affirmed if any theories raised in the trial court were meritorious). Therefore, the trial court’s order granting summary judgment is affirmed.


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re: Jerry BYROM, Relator.
    No. 12-09-00278-CV.
    Court of Appeals of Texas, Tyler.
    July 14, 2010.

      James W. Volberding, Tyler, Joe E. Shumate, for Relator.
    Judge Guy W. Griffin, pro se.
    Sheriff James Campbell, pro se.
    David S. Bouschor II, Joseph F. Zellmer, for Real Party in Interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION ON REHEARING

JAMES T. WORTHEN, Chief Justice.

Real party in interest Roy P. Anderson filed a motion for rehearing, which is overruled. We withdraw our opinion and judgment of January 29, 2010, and substitute the following opinion and corresponding judgment in its place.

In this original habeas proceeding, Relator Jerry Byrom seeks relief from an order signed on June 16, 2009 finding him in contempt for violation of an order signed on December 8, 2008. The respondent is the Honorable Craig A. Fletcher, Judge of the County Court at Law, Cherokee County, Texas. The real parties in interest are Roy P. Anderson and David S. Bouschor II. We grant habeas corpus relief.

Procedural History

Byrom’s mother, Ruby Renee Byrom, died on February 5, 2005. Byrom was named in Mrs. Byrom’s will as the sole beneficiary and independent executor of her estate. The will was admitted to probate in the County Court at Law, Cherokee County (the “probate court”), and letters testamentary were issued to Byrom. The contempt order challenged here was signed in the probate proceeding as a result of a controversy between Byrom and Anderson, a creditor of Mrs. Byrom’s estate.

The Claim

On June 3, 2005, Anderson presented to Byrom and filed in the probate court an unsecured claim against Mrs. Byrom’s estate in the sum of $31,992.75, which was based on two orders signed by the Denton County Probate Court. The orders arose out of a guardianship proceeding in which Byrom was appointed temporary guardian of Mrs. Byrom’s person and Anderson was appointed temporary guardian of her estate. The first order authorized payment of $5,117.50 in temporary guardian’s fees to Anderson and payment of $8,521.50 in attorney’s fees to Bouschor for representing Anderson in the guardianship. The second order, signed after Mrs. Byrom’s death, authorized payment of $2,748.75 in temporary guardian’s fees to Anderson and $15,535.00 in attorney’s fees to Bous-chor for representing Anderson. Both orders stated that the fees were to be paid from the funds of Mrs. Byrom’s estate within thirty days of the date of the order. However, the fees had not been paid at the time Anderson presented and filed his claim in the probate court. On June 9, 2005, Byrom’s attorney informed Anderson that Byrom had rejected his claim.

Byrom’s Removal as Independent Executor

Approximately two years after Byrom’s rejection of the claim, Anderson filed a motion to remove Byrom as independent executor or, alternatively, to require By-rom to post a bond, and to compel an accounting. Anderson alleged that, in trial court cause number 7773, he and Duane Coker, Mrs. Byrom’s attorney/guardian ad litem, sued Byrom in his capacity as independent executor “for Authentication of Claims.” Anderson further alleged that a final order against Byrom was signed in that cause on April 3, 2007. As grounds for Byrom’s removal, Anderson alleged, in part, that Byrom had (1) failed to pay claims in the due course of administration, (2) misapplied property committed to his care, (3) failed to comply with a final order of the court, signed on April 23, 2007, (4) liquidated real property assets of the estate and made disbursements to himself in his individual capacity without payment to creditors of the estate, and (5) failed to file an inventory, appraisement, and list of claims within ninety days after qualification as required by Texas Probate Code sections 250 and 251.

The trial court held an evidentiary hearing on Anderson’s motion. By order signed on September 10, 2008, the probate court removed Byrom as independent executor, but did not discharge him. The order awarded Anderson $14,034.10 for attorney’s fees and expenses incurred in the removal proceeding, and ordered that By-rom pay this amount to Anderson within thirty days of the order. Additionally, the order included a finding that Mrs. Byrom’s estate owned an interest in certain Denton County real property, which Byrom had converted to cash in the amount of $622,786.22. The order also directed By-rom to deposit estate property in that amount into the registry of the court within thirty days of the order. On Byrom’s motion, the court signed a reformed order on December 8, 2008, reducing the required deposit to $85,000.00.

Contempt Proceeding

Byrom did not comply with the December 8, 2008 order, and on March 20, 2009, Anderson filed a motion to enforce the order by contempt. He requested that Byrom be confined in jail for a period not to exceed six months for each violation until he deposited $85,000.00 into the court’s registry and paid Anderson’s fees and expenses incurred in the contempt proceeding. Byrom filed a written response stating that he was no longer the executor of Mrs. Byrom’s estate and did not have access to any funds of the estate.

The trial court conducted an evidentiary hearing on Anderson’s motion. Byrom testified that he had not complied with the court’s order because he did not have $85,000.00, but acknowledged that he had received $622,786.22 as property belonging to the estate. His testimony was conflicting concerning whether he received the money before or after the December 8, 2008 order was signed. Anderson’s attorney then proved up $7,058.17 in attorney’s fees and expenses incurred in the contempt proceeding.

At the conclusion of the hearing, the trial court held Byrom in civil contempt after finding that he had failed to deposit $85,000.00 in estate funds into the court’s registry as required by the December 8, 2008 order. Byrom was ordered to report to the court on July 2 at 9:00 a.m. at which time he would be remanded to the Cherokee County jail if he had not purged himself of the contempt by making the required deposit and paying Anderson’s attorney’s fees and expenses in the contempt proceeding. Byrom did not purge himself of the contempt and was confined in the Cherokee County jail.

Habeas Proceedings

Byrom filed an application for writ of habeas corpus seeking bail, and the trial court signed an order setting his bond at $80,000.00. His attorney filed a bond, and Byrom was released from jail. He then amended his habeas application requesting that the court grant an evidentiary hearing and, after hearing evidence, order him released from confinement. The court conducted the requested hearing on September 2, 2009. Byrom testified that at the time the Denton County property was sold, he did not have notice of any claims he would owe out of the proceeds or any of the fees that he had been ordered to pay. He again insisted that he had none of the funds remaining. He also admitted that the day before he was held in contempt, he signed gift deeds conveying four tracts of land to his daughter. He testified, however, that he did not purchase the property with monejr from his mother’s estate.

At the conclusion of the hearing, the trial court denied habeas relief, ordered Byrom taken into custody, and set his bond at $95,000.00 cash. Byrom then filed this original habeas proceeding, and also filed a motion for temporary relief, which was denied.

Availability of Habeas Corpus

Habeas corpus is available to review a contempt order entered by a lower court confining a contemnor. Ex parte Gordon, 584 S.W.2d 686, 687-88 (Tex.1979) (orig. proceeding). An original habeas proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967) (orig. proceeding); In re Ragland, 973 S.W.2d 769, 771 (Tex.App.-Tyler 1998, orig. proceeding). Its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d at 688.

A court will issue a writ of habe-as corpus if the order underlying the contempt is void or if the contempt order itself is void. See Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex.1983) (orig. proceeding); Ex parte Gordon, 584 S.W.2d at 688. The relator bears the burden of showing that the contempt order is void and not merely voidable. In re Munks, 263 S.W.3d 270, 272-73 (Tex.App.-Houston [1st Dist.] 2007, orig. proceeding). Until the relator has discharged his burden, the contempt order is presumed valid. In re Parr, 199 S.W.3d 457, 460 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding).

A contempt order is void if it deprives the relator of liberty without due process of law or if it was beyond the power of the court to issue. See In re Coppock, 277 S.W.3d 417, 418 (Tex.2009) (orig. proceeding). An order of confinement for failure to pay a debt violates the Texas Constitution and therefore is beyond the power of the court to issue. See In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding). Consequently, such an order is void. Id.

Validity of the Contempt Order

In his first issue, Byrom asserts that Anderson and Bouschor have “creatively used the procedures for civil contempt to collect their legal and accounting fees, rather than through well established debt collection procedures.” He also makes reference to the attorney’s fees awarded to Anderson by the probate court, which are ordered payable out of estate property. The authority Byrom cites pertains to the prohibition against imprisonment for debt found in article I, section 18 of the Texas Constitution and the prohibition against collection of attorney’s fees by contempt. He contends that, in light of the cited authority, the contempt order is void.

Anderson responds that Byrom was held in contempt for failing to deposit $85,000.00 into the registry of the court as ordered on December 8, 2008, and that there is nothing in the record to indicate that the $85,000.00 was for the collection of attorney’s fees.

Imprisonment for Debt

As a general rule, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period until he complies with the order. Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (orig. proceeding). But the Texas Constitution provides that “[n]o person shall ever be imprisoned for debt.” See Tex. Const, art. I, § 18. This provision establishes that “[i]t is not the policy of the law [in Texas] to enforce the collection of mere civil debts by'contempt proceedings.” Ex parte Britton, 127 Tex. 85, 90, 92 S.W.2d 224, 227 (1936) (orig. proceeding). An order requiring payment of a debt may be enforced through legal processes like execution or attachment, but not by the imprisonment of the adjudicated debtor. Ex parte Hall, 854 S.W.2d at 658; see also In re Nunu, 960 S.W.2d 649, 650 (Tex.1997) (orig. proceeding) (reasoning that because a judgment awarding damages cannot be enforced by contempt, court cannot require payment of expenses incurred as means of purging contempt).

Not every obligation to pay money is a debt within the meaning of article I, section 18. See Ex parte Davis, 101 Tex. 607, 612, 111 S.W. 394, 396 (1908) (orig. proceeding) (“There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money.”). For example, an obligation that is a legal duty arising out of the status of the parties is not a debt and therefore may be enforced by contempt. See In re Henry, 154 S.W.3d at 596 (holding that past due child support is not a debt); Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex.1979) (orig. proceeding) (holding that former husband was constructive trustee for portion of monthly retirement pay awarded to former wife in divorce decree; therefore obligation to deliver money to former wife was not “debt”). Similarly, criminal fines are not debts, and confinement for failure to pay criminal fines is not prohibited. In re Henry, 154 S.W.3d at 596 n. 1.

Generally, however, an obligation to pay money arising out of a contract is a debt within the meaning of article I, section 18. Tex. Const, art. I, § 18 interp. commentary. Moreover, “[a]ll causes of action become debts when they are placed in the form of judgments.... ” Id,.; see also Ex parte Hall, 854 S.W.2d at 658. And with few exceptions, none of which are applicable here, attorney’s fees are debts and cannot be collected by contempt. See Wallace v. Briggs, 162 Tex. 485, 488-90, 348 S.W.2d 523, 525-26 (1961) (orig. proceeding); Ex parte Dolenz, 893 S.W.2d 677, 680-81 (Tex.App.-Dallas 1995, orig. proceeding).

The Contempt Order

Anderson contends that Byrom was held in contempt and confined for failure to comply with the respondent’s December 8, 2008 order by depositing $85,000.00 in the court’s registry. He points out that the order Byrom violated was a “court order made mandatory by [Texas Probate Code section] 149C(b)....” Because the order Byrom disobeyed was mandatory by statute, Anderson contends that contempt and confinement are permissible.

An order removing an independent executor must direct the disposition of the assets remaining in the name or under the control of the removed executor. Tex. Prob.Code Ann. § 149C(b) (Vernon Supp. 2009). The order requiring the $85,000 deposit was signed in compliance with this section. However, Anderson has a judgment against Byrom as independent executor of Mrs. Byrom’s estate. From our review of the record, it is clear that Anderson sought Byrom’s removal as independent executor and filed his motion to enforce the December 8, 2008 order by contempt to assure that property of the estate would be available to satisfy his judgment against Byrom. Because Byrom is the sole beneficiary under the will, there are no other beneficiaries who would benefit from the $85,000.00 deposit. Therefore, it is also clear that the respondent required the deposit for Anderson’s benefit.

An order requiring a deposit of funds into the court’s registry is not en-forceable by contempt if any portion of the funds is for the payment of a debt. See In re Wiese, 1 S.W.3d 246, 251 (Tex.App.Corpus Christi 1999, orig. proceeding) (contempt order void because portion of funds to be deposited in registry was attorney’s fees that were part of turnover order); Ex parte Roan, 887 S.W.2d 462, 465 (Tex.App.-Dallas 1994, orig. proceeding) (order void where trial court conditioned coercive contempt upon payment of funds into registry and funds were ordered deposited for judgment creditors’ benefit). Here, Anderson’s judgment is against By-rom in his representative capacity and is based on the fee orders of the Denton County Probate Court. He also has been awarded attorney’s fees and expenses incurred in various proceedings in the probate court that are payable from estate property. As we have previously stated, a judgment is a debt and cannot be collected by contempt. Ex parte Hall, 854 S.W.2d at 658. Additionally, the attorney’s fees and expenses awarded to Anderson by the probate court are debts. See Wallace v. Briggs, 162 Tex. at 488-90, 348 S.W.2d at 525-26; Ex parte Dolenz, 893 S.W.2d at 680-81. Therefore, the only sums payable to Anderson out of estate property are for debts. Consequently, Byrom has been held in contempt for failure to deposit funds that will be used to pay debts. See Ex parte Roan, 887 S.W.2d at 465. Thus, the contempt order violates the constitutional prohibition against imprisonment for debt and is void. See In re Henry, 154 S.W.3d at 595. Because the contempt order is void, the order illegally restrains Byrom. See In re Wiese, 1 S.W.3d at 251; Ex parte Roan, 887 S.W.2d at 465.

The Buller Cases

Anderson disagrees and calls our attention to the Buller cases. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991) (“Buller /”); Ex parte Buller, 834 S.W.2d 622, 623-24 (Tex.App.-Beaumont 1992, orig. proceeding) (“Buller II ”). He urges that the facts in Buller II and those presented in this case are indistinguishable and concludes that we should deny Byrom’s habeas petition.

Buller I is an appeal from a turnover order directing Patricia Buller, independent executrix of her husband’s estate, to deliver a specific amount of estate cash to the sheriff for levy in partial satisfaction of a judgment. Buller I, 806 S.W.2d at 224. In reviewing the order, the supreme court stated that once the cash was traced to Buller in her representative capacity, a presumption arose that those assets were in her possession. Id. at 226. The burden then shifted to Buller to account for the assets. Id. The court noted that Buller presented only scant documentation to support her testimony that she no longer had possession of the cash. Id. Ultimately, the court determined that “[cjlearly the trial court was within its discretionary authority in disbelieving Mrs. Buller’s unsubstantiated claim that [the] cash was spent....” Id. Specifically, the court opined that “simply asserting T spent it’ is unacceptable.” Id. at 227. Consequently, the court affirmed the portions of the turnover order that relate to our analysis in this case. See id.

Despite the supreme court’s ruling, Bul-ler refused to comply with the turnover order. As a result, the trial court held her in contempt and confined her. See Buller II, 834 S.W.2d at 624. She sought habeas relief arguing, in part, that her confinement violated the constitutional prohibition of imprisonment for debt. Id. at 626; see also Tex. Const. art. I, § 18. The Beaumont court of appeals held to the contrary, relying on two cases it described as “compellingly persuasive.” Id. at 626-27.

In the first case, the supreme court determined that a husband could be held in contempt and confined for refusing to obey an order to pay into the court’s registry his wife’s share of certain community property funds. Ex parte Preston, 162 Tex. 379, 381, 347 S.W.2d 938, 939 (1961). Preston argued, in part, that the sum to be paid constituted a debt to his wife and therefore he could not constitutionally be held in contempt and confined for his failure to deposit the funds. Id., 162 Tex. at 382, 347 S.W.2d at 940; see also Tex. Const. art. I, § 18. The court observed that the money Preston was ordered to deposit rightfully belonged to his wife under the terms of the divorce decree. Id., 162 Tex. at 384, 347 S.W.2d at 941. Thus, he was not a debtor of his wife, but a constructive trustee holding a portion of the assets awarded to her in the divorce decree. Id. In the court’s view, there was “no question ... about the right of the [trial] court to hold a trustee in contempt of court for willfully refusing to obey an order to pay over funds held in his hands to the one rightfully entitled thereto.” Id.

In the second case, the supreme court held that a husband could be held in contempt and confined for refusing to surrender property to his former wife as ordered in the divorce decree. Ex parte Gorena, 595 S.W.2d at 846-47. Gorena was committed to jail for contempt for failing to pay his former wife monthly payments of a portion of his military retirement benefits. Id. at 843. In denying habeas relief, the supreme court concluded that Gorena held the unpaid funds as a trustee for his wife. See id. at 846-47. Therefore, he was not being imprisoned for debt. See id.

In short, the supreme court in Preston and Gorena held that the contemnor’s refusal to deliver the property of another to its rightful owner as ordered was punishable by contempt and confinement. In applying these two cases, the court stated in Buller II that

[a] trustee or other fiduciary such as a legal representative or independent executrix may constitutionally be fined and jailed for contemptuously refusing to obey an order to turn over funds held in her hands and subject to her right of possession to a proper authority or entity that is lawfully and rightfully entitled to those funds for levy.

Buller II, 834 S.W.2d at 626. It then concluded that Buller, as independent executrix of her husband’s estate, had a fiduciary relationship to the estate’s creditors. Id. Because of this relationship, the court reasoned, her confinement was not constitutionally prohibited. Id. We do not read Preston and Gorena so broadly.

We first note that Buller was the independent executrix of her husband’s estate and consequently “a holder of property of a judgment debtor[.]” See Buller I, 806 S.W.2d at 226. She was not a holder of property belonging to the judgment creditor that had sued her. See id.; see also Tex. Prob.Code Ann. § 37 (Vernon 2003) (estate of testate decedent vests immediately in devisees, but independent executor has right to possession of estate). Moreover, the holdings in Preston and Gorena do not turn on, and the court does not address, whether the contemnor was a fiduciary by virtue of his holding the property of another. The critical facts were that Preston and Gorena possessed the property of another but refused to deliver it to the rightful owner, despite being ordered to do so. And even if fiduciary duty had been the basis for the court’s holdings in those cases, we have been unable to locate any Texas case holding that an independent executor has a fiduciary relationship with estate creditors. Finally, the above quoted language from Buller II is, in substance, a determination that a fiduciary is not subject to the constitutional prohibition of imprisonment for debt. We do not reach the same conclusion from our reading of the cases cited in Buller II and other cases addressing the prohibition of imprisonment for debt. Consequently, for the reasons we have discussed, we respectfully decline to follow Buller II here.

Disposition ,

Because we have held that the contempt order is void and Byrom is illegally restrained, we grant Byrom’s petition for writ of habeas corpus and order him discharged. Thus, Byrom’s first issue is dis-positive, and we need not address his remaining issues. See Tex.R.App. P. 47.1. All pending motions are overruled as moot.

      . The record reflects that the Denton County Probate Court had awarded $27,551.93 in fees to Coker in the guardianship proceeding.

      . Neither the April 3 order or the April 23 order is part of the record in this proceeding.

      . Because we are granting habeas relief, we need not address the trial court's requirement that, to purge himself of the contempt, Byrom must pay Anderson's attorney's fees and expenses in the contempt proceeding in addition to making the required deposit.

      . For example, Byrom’s motion to reform the original order removing Byrom as independent executor requested in part that the amount of the deposit, originally set at $622,786.22, be reduced because the previous order “embrace[d] a much broader portion of the Estate of Ruby Renee Byrom than is reasonably necessary to protect any litigant herein.” Moreover, Anderson states in his response that the $85,000.00 deposit was required pursuant to section 149C(b) of the Texas Probate Code and refers us to a subsequent order entered by the respondent, which contains the following finding:
      "(8) By Order of this Court entered December 8, 2008, JERRY BYROM was ordered to deposit property of the Estate of RUBY RENEE BYROM in the amount of $85,000.00 in the Registry of the Court of Cherokee County, Texas to be used to pay the judgments awarded Plaintiff [Anderson].”

      . In Buller I, the dissent predicted that "[e]ven as to any estate assets which Buller has not spent, the turnover order will ultimately prove unenforceable. The Texas Bill of Rights prohibits the trial court from enforcing the turnover order by imprisonment.... In the present case, enforcement of the turnover order by imprisonment would fall squarely within the constitutional prohibition.” Buller I, 806 S.W.2d at 229 (Mauzy, J., dissenting). In Buller II, Justice Burgess noted in his dissent that the trial court’s order directed Buller to turn over a specific sum, which was "nothing more than telling her to pay the debt." In his view, Buller was entitled to the guarantee of article I, section 18, and could not be confined for refusing to deliver the funds. Buller II, 834 S.W.2d at 627-28 (Burgess, J., dissenting).

      . The court also held that the constitutional prohibition against imprisonment for debt does not apply "unless the contemn[o]r demonstrates inability to pay.” See Buller II, 834 S.W.2d at 626 (citing Pierce v. Vision Invs., 779 F.2d 302, 309 (5th Cir.1986) and Ex parte Smyers, 529 S.W.2d 769, 770 (Tex. 1975)). These cases hold that a contempt order is not proper if the contemnor is unable to comply with the order he failed to obey. See Pierce, 779 F.2d at 310; Smyers, 529 S.W.2d at 769-70. According to the dissent in Buller I, the express language of the 1836 Republic of Texas Constitution required inability to pay, but this language has been included in subsequent state constitutions. Buller I, 806 S.W.2d at 229.