text:
    Denver EHLER and Mary Ehler, Appellants, v. LVDVD, L.C., Desert View Dairy, L.C., Tony Bos, Individually and as a Partner in MJB Dairy, and doing business as MJB Dairy, and also doing business as Rio Grande Valley Dairy, and Bradley Bouma, Individually and as a partner in MJB Dairy and doing business as MJB Dairy, and also doing business as Rio Grande Valley Dairy, Appellees.
    No. 08-07-00254-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.

      Anthony C. Aguilar, El Paso, for appellants.
    Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, for appellees.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge, sitting by assignment.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Denver Ehler and Mary Ehler appeal from a summary judgment granted in favor of LVDVD, L.C., Desert View Dairy, L.C., Tony Bos, individually and as a partner in MJB Dairy, and Bradley Bouma, individually and as a partner in MJB Dairy, and doing business as MJB Dairy, and also doing business as Rio Grande Valley Dairy. For the reasons that follow, we affirm.

FACTUAL SUMMARY

The Ehlers own real property adjacent to a dairy in El Paso County, Texas. In 2008, they filed suit against Appellees alleging nuisance, trespass, and violation of Section 11.086 of the Texas Water Code. The Ehlers alleged that in 2002 and 2003 rain water washed manure from the dairy onto their property. Appellees filed both no evidence and traditional motions for summary judgment. The motions for traditional summary judgment are based, in part, on the statute of repose found in Section 251.004 of the Texas Agricultural Code. Ten days before the summary judgment hearing, the Ehlers amended their petition to add allegations based on flooding incidents which occurred in 2004 and 2006, but the allegations related to 2002 and 2003 are identical to the prior pleadings. The trial court granted summary judgment as to the 2002 and 2003 incidents, but expressly ruled that the judgment did not address the causes of action based on the 2004 and 2006 incidents. The trial court did not specify on which ground or grounds she based the judgment. The partial summary judgment was severed from the remaining claims in order that the summary judgment would be final and could be appealed.

THE THIRD AMENDED PETITION

Although not presented as a separate issue, the Ehlers assert in their brief that the trial court erred in granting summary judgment because the motions for summary judgment were “directed to the Plaintiffs’ 1st Amended Original Petition” when it was no longer the live pleading at the time of the hearing. A party may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. See Chessher v. Southwestern Bell Telephone Company, 658 S.W.2d 563, 564 (Tex.1983); Espeche v. Ritzell, 123 S.W.3d 657, 663 (Tex.App.Houston [14th Dist.] 2003, pet. denied). A plaintiffs timely filed amended pleading supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. Tex.R. Civ. P. 65; J.M. Huber Corporation v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842, 844 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In such a case, a party moving for summary judgment is required to amend or supplement its motion for summary judgment to address the additional claims unless the summary judgment motion is sufficiently broad to encompass the later-filed claims. See Espeche, 123 S.W.3d at 663-64. Appellees did not amend their motions for summary judgment, but the trial court did not grant summary judgment as to the new claims added by the third amended petition. Thus, the summary judgment does not violate Chessher. Given that the pleadings and claims related to the 2002 and 2003 incidents stated in the third amended petition are identical to the pleadings and claims raised in the first amended petition, we conclude that the summary judgment motions are sufficiently broad to encompass those claims and Appellees were not granted more relief than requested.

STATUTE OF REPOSE

In Issue One, the Ehlers allege that the trial court erred in granting summary judgment based on the statute of repose affirmative defense because Appel-lees failed to establish their entitlement to summary judgment. The standard of review for traditional summary judgment under Tex.R. Civ. P. 166a(c) is well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). The moving party carries the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004); Duran, 921 S.W.2d at 784. All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative defense. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Scown v. Neie, 225 S.W.3d 303, 307 (Tex.App.-El Paso 2006, pet. denied). When the trial court’s judgment does not specify the ground, or grounds, upon which it relied for its ruling, the judgment must be affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Fertic v. Spencer, 247 S.W.3d 242, 249 (Tex.App.-El Paso 2007, pet. denied).

Appellees moved for summary judgment based on the statute of repose found in Section 251.004(a) of the Texas Agriculture Code. It provides that no nuisance action may be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date on which the action is brought, if the conditions or circumstances complained of as constituting the basis of the nuisance action have existed substantially unchanged since the established date of operation. Tex.Agric.Code Ann. § 251.004(a)(Vernon 2004). Section 251.004(a) applies on proof of two conditions: (1) the agricultural operation was in business lawfully for more than a year before the nuisance action was filed; and (2) the conditions and circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation. Holubee v. Brandenberger, 111 S.W.3d 32, 38 (Tex.2003); see Aguilar v. Trujillo, 162 S.W.3d 839, 852 (Tex.App.-El Paso 2005, pet. denied) (discussing Section 251.004). A statute of repose operates as an affirmative defense. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). Appellees had the burden to conclusively prove each essential element of that defense. Id. The burden would shift to the Ehlers to raise a fact issue precluding summary judgment only if Appellees carried their burden.

The Ehlers argue that Appellees failed to provide summary judgment evidence showing the established date of any agricultural operation. Section 251.003 of the Agriculture Code provides:

For purposes of this chapter, the established date of operation is the date on which an agricultural operation commenced operation. If the physical facilities of the agricultural operation are subsequently expanded, the established date of operation for each expansion is a separate and independent established date of operation established as of the date of commencement of the expanded operation, and the commencement of expanded operation does not divest the agricultural operation of a previously established date of operation.

TexAgrigCode Ann. § 251.003. In Aguilar, we rejected an argument that a defendant relying on Section 251.004(a) must prove the exact date on which it first commenced agricultural operation. Aguilar, 162 S.W.3d at 854-55. We adhere to that holding. When Sections 251.003 and 251.004(a) are read together, the critical inquiry is whether the defendant commenced the operations on which the plaintiff bases his nuisance action more than one year before the plaintiff filed suit. See id.

The Ehlers alleged that waste from the dairy was transported onto their property after it rained on August 12, 2002 and again on July 17, 2003. They filed their petition on August 8, 2003. To rely on the statute of repose, Appellees were required to prove that the agricultural operation had lawfully been in operation for one year or more prior to August 8, 2003. To prove this element, Appellees relied on the affidavit of their expert witness, Eduardo A. Latimer, Ph.D., who reviewed written materials and a videotape, and conducted a physical inspection of the property as part of his report. In his facility inspection report dated August 1, 2005 and attached to the affidavit, Dr. Latimer related that facility records made available by MJB Dairy showed it obtained a no-discharge permit from the Texas Water Commission to dispose of wastes associated with the dairy operation on August 9, 1988. The report further states that the records showed the dairy maintained the same permit number and permit requirements/conditions throughout its operation of “roughly 15 years.” The operational facilities of the dairy farm, as described in the facility’s water quality permit, consisted of solids settling basins and about 50 acre-feet of holding ponds for treatment and/or storage of process-generated waste and wastewater, as well as rainfall and rainfall runoff. Dr. Latimer conducted a physical inspection of the premises on May 23, 2005. His report states that the dairy facility was in the process of closure when he visited on that date, but as of July 17, 2003, the facility was fully operational and properly permitted by TNRCC with over 100 acres of agricultural operation and production with nearly 1,000 mature milking cows. Dr. Latimer inspected the waste containment system and noted it showed long-term use with no signs of breach or erosion. He noted that historical facility records indicated the dairy was in compliance with all regulatory requirements, and TCEQ found no violations following a comprehensive compliance investigation of the dairy on November 21, 2003. From this, Dr. Latimer concluded that the dairy facility had been properly operating under the terms and conditions of the permit, including proper reporting and record keeping. This evidence is sufficient to establish that the dairy facility had been in lawful operation since approximately 1988, the waste containment system had been in place during this time period, and the conditions on which the Ehlers based their nuisance action had existed unchanged for more than one year before they filed suit on August 8, 2003. Therefore, Appellees conclusively established the elements of their affirmative defense as it relates to their nuisance cause of action. We overrule Issue One.

TRESPASS

In Issue Two, the Ehlers contend that the trial court erred in granting summary judgment because the statute of repose affirmative defense does not apply to their trespass cause of action. Relying on Section 251.004(a)’s language, “No nuisance action may be brought against an agricultural operation ...,” the Ehlers argue that the statute of repose is limited to nuisance actions. [Emphasis added]. TexAgRic. Code Ann. § 251.004(a). Appellees reply that the Ehlers should not be permitted to avoid the application of Section 251.004(a) through artful pleading because such a construction of the statute would be contrary to the statute’s intended purpose of protecting established agricultural operations.

In their pleadings, the Ehlers alleged that it rained in El Paso County on August 12, 2002 and waste from the dairy and water that was to be contained in the retention ponds was transported from the dairy’s property to the Ehlers’ property. The same events occurred on July 17, 2003 after a rain. The pleadings then allege that the Ehlers “will show the Court the act(s) of the dairy was and is a nuisance and/or trespass of their property for the August 12, 2002 acts and the July 17, 2003 acts.” According to the pleadings, each of these events caused temporary injury to the Ehlers’ real property and caused them to vacate the premises.

The Right to Farm Act does not define “nuisance action.” In the absence of any special meaning, we must give the phrase its ordinary meaning. Tex.Gov’t Code .Ann. 312.002(a)(Vernon 2005)(stating that “words shall be given their ordinary meaning” except when “a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art”); see Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex.2009). Blackstone broadly defined nuisance as “Anything that worketh hurt, inconvenience or damage, or which is done to the hurt of the lands, tenements or hereditaments of another.” William L. Prosser, Nuisance Without Fault, 20 Tex.L.Rev. 399, 410 (1942), quoting Blackstone’s definition while noting it is broad enough to cover all conceivable torts. Since the mid-19th century, Texas courts have occasionally utilized that definition. Burditt v. Swenson, 17 Tex. 489 (1856); Brewster v. City of Forney, 223 S.W. 175 (Tex.Com.App.1920). In the modern era, Texas courts have continued to broadly define the term. See e.g., City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex.1997)(“Nuisance, whether it be public or private, is thus a field of tort liability, a kind of damage done, rather than any particular type of conduct.”); Wales Trucking Company v. Stallcup, 474 S.W.2d 184, 186 (Tex.1971)(“There is a general agreement that [nuisance] is incapable of any exact or comprehensive definition, and we shall attempt none here.”).

In Aguilar, this Court stated that nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use or enjoy it. Aguilar, 162 S.W.3d at 850, citing Holubec v. Brandenberger, 111 S.W.3d 32, 36 (Tex.2003). A nuisance may arise by causing (1) physical harm to property, such as by the encroachment of a damaging substance or by the property’s destruction, (2) physical harm to a person on his property from an assault on his senses or by other personal injury, and (3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind. Aguilar, 162 S.W.3d at 850. For an actionable nuisance, a defendant must generally engage in one of three kinds of activity: (1) intentional invasion of another’s interests; (2) negligent invasion of another’s interests; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests. Aguilar, 162 S.W.3d at 850-51; Z.A.O., Inc. f/k/a Bell Thunderbird Oil Co., Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 532 (Tex.App.-El Paso 2001, no pet.). The Ehlers’ petition states a nuisance action for the alleged physical harm of their property by the encroachment of a damaging substance, namely, waste from the dairy.

Every unauthorized entry is a trespass even if no damage is done. Aguilar, 162 S.W.3d at 851, citing Trinity Universal Insurance Company v. Cowan, 945 S.W.2d 819, 827 (Tex.1997). A trespass can be either by entry of a person on another’s land or by causing or permitting a thing to cross the boundary of the premises. Aguilar, 162 S.W.3d at 851; City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex.App.-Fort Worth 1994, writ dism’d w.o.j.). Finally, a trespass may be committed on, beneath, or above the surface of the earth. Aguilar, 162 S.W.3d at 851; City of Arlington, 873 S.W.2d at 769. The Ehlers rely on the same event, the alleged encroachment of waste from the dairy, to prove both trespass and nuisance. Likewise, they allege the same damages, namely, temporary physical harm to their property. Giving “nuisance action” its ordinary meaning, we conclude that a trespass action is included in the phrase “nuisance action” as used in Section 251.004(a).

Further, our construction of Section 251.004(a) promotes the stated purpose of the statute. The Legislature passed the Right to Farm Act in 1981 in order “to conserve, protect, and encourage the development and improvement of [Texas] agricultural land for the production of food and other agricultural products” by “limiting the circumstances under which agricultural operations may be regulated or considered to be a nuisance.” Tex. Agric.Code ANN. § 251.001; Aguilar, 162 S.W.3d at 852. Permitting the Ehlers’ to avoid the application of Section 251.004(a) by pleading a nuisance action as a trespass would eviscerate the statute and deny Ap-pellees the protection intended by the Legislature when it passed the Right to Farm Act. We decline to give the statute such a construction. Issue Two is overruled.

STATE LAW VIOLATIONS

In Issue Three, the Ehlers maintain the trial court erred by granting summary judgment on their claim based on alleged violations of state law because Appellees offered no evidence establishing that the water diverted onto the Ehler property is surface water. The Ehlers made the following allegations in their third amended petition:

The EHLERS will show the Court that Defendants constructed berms and/or dams on various arroyos on the diary [sic] property. The purpose of the berms and/or dams was to divert the flow of water that would run down the arroyos from traveling onto the dairy property. The method of constructing the berms and/or dams diverted the water from its regular flow. After rainstorms the water in the arroyo, rather than traveling in a rout [sic] that would allow for disbursement on the dairy property, travels down the arroyo and inundates the property located to the west of the dairy property. The diversion causes the EHLERS property and their neighbors property to be inundated with agricultural waste, dirt, and debris. The EHLERS will show the Court the acts of Defendants in constructing the berms and/or dams is in violation of Texas law and that such violations allow recovery by the EHL-ERS from Defendants, joint and several, in the amount of damages to their real property and personal property.

The Ehlers do not identify in their pleadings which statute Appellees are alleged to have violated. Appellees moved for summary judgment on this claim asserting that the only statute remotely applicable to this claim is Section 11.086 of the Texas Water Code and that the Ehlers’ pleadings negate a cause of action based on Section 11.086. In their response, the Ehlers addressed whether Appellees were entitled to summary judgment on this ground and did not dispute that their violation of state law claim is based solely on Section 11.086. Section 11.086 provides:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

TexWateR Code Ann. § 11.086 (Vernon 2008).

Generally, pleadings are not evidence which will support summary judgment. Lyons v. Lindsey Morden Claims Management, Inc., 985 S.W.2d 86, 92 (Tex.App.-El Paso 1998, no pet.), citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). If a party’s pleadings contain judicial admissions negating a cause of action, however, summary judgment may be granted on the basis of the pleadings. Lyons, 985 S.W.2d at 92. Judicial admissions are assertions of fact, not pleaded in the alternative, in the live pleadings of a party. Id.

The term “surface water,” as used in Section 11.086, is not defined in the Water Code, but it is a term of art when used in the context of riparian rights. Dietrich v. Goodman, 123 S.W.3d 413, 418 (Tex.App.-Houston [14th Dist.] 2003, no pet.). It means water “which is diffused over the ground from falling rains or melting snows, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.” Texas Woman’s University v. The Methodist Hospital, 221 S.W.3d 267, 277 (Tex.App.Houston [1st Dist.] 2006, no pet.), quoting Dietrich, 123 S.W.3d at 417; Dalon v. City of DeSoto, 852 S.W.2d 530, 538-39 (Tex.App.-Dallas 1992, writ denied); City of Princeton v. Abbott, 792 S.W.2d 161, 163 (Tex.App.-Dallas 1990, writ denied); see also Raburn v. KJI Bluechip Investments, 50 S.W.3d 699, 704 (Tex.App.-Fort Worth 2001, no pet.)(defining surface water as “water or natural precipitation diffused over the surface of the ground until it either evaporates, is absorbed by the land, or reaches a bed or channel in which water is accustomed to flowing” [emphasis in original]). Texas courts have further held that surface water is never found in a natural watercourse having (1) a bank and bed, (2) a current of water, and (3) a permanent source of supply. Texas Woman’s University, 221 S.W.3d at 277; Dietrich, 123 S.W.3d at 418, citing Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 787 (1925). Although the source of a watercourse must be permanent, such as a watershed, it need not be continuous, and a watercourse may be dry for long periods of time. Texas Woman’s University, 221 S.W.3d at 277; Dietrich, 123 S.W.3d at 418, quoting Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 787 (1925).

The Ehlers alleged that Appellees diverted the rainwater flowing in the arroyos onto the Ehlers’ property. An arroyo is a small steep-sided watercourse or gulch with a nearly flat floor, and is usually dry except after heavy rains. Webster’s New UNIVERSAL UnabRidged Dictionary 117 (2003). Rainwater which has flowed into and through an arroyo, a watercourse, is not surface water as that term is used in Section 11.086. By pleading that Appellees diverted water flowing in the arroyos onto the Ehlers’ property, the Ehlers judicially admitted that the water is not surface water. Consequently, the Ehlers cannot maintain a cause of action under Section 11.086(b). The trial court did not err by granting Appellees’ motion for summary judgment on this ground. Issue Three is overruled. Given our resolution of the first three issues, it is unnecessary to review Issue Four which addresses the no-evidence summary judgment motion. We affirm the judgment of the trial court.

      . The report reflects that the dairy was being closed and sold as part of a USDA program to eliminate bovinetuberculosis in the area by creating a buffer zone between cattle in Texas and cattle in Ciudad Juarez.

      . The Texas Natural Resource Conservation is now the Texas Commission on Environmental Quality.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Sheriff Leo SAMANIEGO, In His Individual and Official Capacity, and El Paso County, Texas, Appellants, v. Janet KELLER, Antonio Escobedo, and Linda Hartt-Goggin, Appellees.
    No. 08-08-00104-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.

      Rosendo Torres, Assistant County Attorney, El Paso, TX, for Appellants.
    Jim K. Jopling, El Paso, TX, for Appel-lees.
    Before CHEW, C.J., McCLURE, J., and MACIAS, Judge.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Sheriff Leo Samaniego, in his official capacity, and El Paso County appeal from an order denying a plea to the jurisdiction and motion to dismiss based on non-compliance with the notice requirement found in Section 89.0041(a) of the Texas Local Government Code. We dismiss in part and reverse and render in part.

FACTUAL SUMMARY

Janet Keller, Antonio Escobedo, and Linda Hart-Goggin, Appellees, were employed by the El Paso County Sheriffs Office until December 31, 2004. When they were not reappointed by Sheriff Sa-maniego on January 1, 2005, Appellees appealed pursuant to the collective bargaining agreement. On August 22, 2005, the El Paso County Civil Service Commission ruled that it did not have jurisdiction to hear the appeals because the three employees had not been terminated, but rather had not been reappointed at the end of their terms. Appellees filed suit against Sheriff Samaniego and El Paso County on November 30, 2005, alleging retaliatory discharge under Chapter 451 of the Texas Labor Code. The suit also included an appeal of the Civil Service Commission’s decision pursuant to Section 158.037 of the Texas Local Government Code. El Paso County filed a plea to the jurisdiction and a motion to dismiss pursuant to Section 89.0041 of the Texas Government Code alleging that the trial court lacked jurisdiction because Appellees did not deliver written notice of the suit to the county judge and the county or district attorney having jurisdiction to defend the county in a civil suit. At the hearing on the plea, the County and Sheriff Samaniego offered evidence that Appellees did not give the statutory notice within thirty days of filing suit. The trial court denied the plea to the jurisdiction and the motion to dismiss. This appeal follows.

NOTICE AS A JURISDICTIONAL REQUIREMENT

In its first issue on appeal, El Paso County contends that the trial court abused its discretion by denying the plea to the jurisdiction and motion to dismiss because the undisputed evidence established that Appellees failed to give the requisite notice.

Standard of Review

A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000); City of El Paso v. Maddox, 276 S.W.3d 66, 70 (Tex.App.-El Paso 2008, pet. denied). Whether a court has subject matter jurisdiction is a question of law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Maddox, 276 S.W.3d at 70. Similarly, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law subject to de novo review. Id. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This standard generally mirrors that of summary judgment under Tex.R.Civ.P. 166a(c). Id.

Section 89.0011

Section 89.0041 requires a person filing suit against a county or county official in his or her official capacity to deliver written notice to the county judge and to the county or district attorney having jurisdiction to defend the county in a civil suit. Tex.Local Gov’t Code Ann. § 89.0041(a) (Vernon 2008). The written notice must be delivered within thirty days after suit is filed and must contain the style and cause number of the suit, the court in which the suit was filed, the date on which the suit was filed, and the name of the person filing suit. Tex.Local Gov’t Code Ann. § 89.0041(b). If a person fails to give notice, the governmental defendants are entitled to dismissal upon filing a motion to dismiss. Tex.Local Gov’t Code Ann. § 89.0041(c). In 2005, the Legislature amended Section 311.034 of the Government Code to provide that: “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex.Gov’t Code Ann. § 311.034 (Vernon Supp. 2009).

This court has held that Section 89.0041(a)’s requirement that notice be given after suit is filed is not jurisdictional because a notice provision is jurisdictional under Section 311.034 only if it is a prerequisite to a suit. Alvarado, 290 S.W.3d at 898-99. Other appellate courts have reached the same conclusion. See Roccaforte v. Jefferson County, 281 S.W.3d 230, 232-33 (Tex.App.-Beaumont 2009, pet. filed); County of Bexar v. Bruton, 256 S.W.3d 345, 349 (Tex.App.-San Antonio 2008, no pet.); Dallas County v. Coskey, 247 S.W.3d 753, 755-56 (Tex.App.-Dallas 2008, pet. denied). We adhere to our holding.

Appellate Court Jurisdiction

In Alvarado, we dismissed for want of jurisdiction that portion of the appeal complaining of the trial court’s ruling on the County’s motion to dismiss but we affirmed the trial court’s order insofar as it denied the County’s plea to the jurisdiction. Id. at 898-99, citing Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8). Section 51.014(a)(8) allows an appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit.” Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8)(Vernon 2008). The Texas Supreme Court has held, however, that not every plea to the jurisdiction can be appealed pursuant to Section 51.014(a)(8). Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004); University of Texas Southwestern Medical Center v. Loutzenhiser, 140 S.W.3d 351, 365-66 (Tex.2004). We must look to the substance of the issue raised in the plea to determine if an interlocutory appeal is permitted. Simons, 140 S.W.3d at 349; Loutzenhiser, 140 S.W.3d at 365-66. The reference in Section 51.014(a)(8) to “plea to the jurisdiction” is not to a particular procedural vehicle but to the substance of the issue raised. Simons, 140 S.W.3d at 349. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle such as a motion for summary judgment. Id. An interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional. Id. In Simons, the Supreme Court determined that the notice requirement found in Section 101.101 of the Government Code is not jurisdictional such that an interlocutory appeal is not permitted. Id. at 349. Instead, the proper disposition is for the appellate court to dismiss the appeal for want of jurisdiction. Id.

Because non-compliance with Section 89.0041’s notice requirement is not a jurisdictional issue, we lack jurisdiction to review the denial of the plea or the denial of the motion to dismiss based on the lack of notice. See Simons, 140 S.W.3d at 349. We misspoke in Alvarado when we affirmed the trial court’s order instead of dismissing the appeal. In this case, we dismiss for want of jurisdiction that portion of the appeal challenging the trial court’s ruling on the plea to the jurisdiction and the motion to dismiss based on the lack of notice under Section 89.0041(a).

UNTIMELY APPEAL OF CIVIL SERVICE COMMISSION’S DECISION

In its second issue, the County challenges the trial court’s denial of the plea to the jurisdiction based on Appellees’ failure to timely appeal the Civil Service Commission’s decision by filing a petition in district court within thirty days. Section 158.037(a) of the Texas Local Government Code provides:

(a) An employee who, on a final decision by the commission, is demoted, suspended, or removed from a position may appeal the decision by filing a petition in a district court in the county within 30 days after the date of the decision.

TexLocal Gov’t Code Ann. § 158.037(a)(Vernon 2008).

The right to appeal the decision of an administrative agency is a statutory right. Bouldin v. Bexar County Sheriffs Civil Service Commission, 12 S.W.3d 527, 529 (Tex.App.-San Antonio 1999, no pet.). The applicable statutory provisions are mandatory and exclusive and must be complied with fully for the district court to have jurisdiction of the appeal. Id. The event which triggers the appellate period set forth in Section 158.037(a) is the date of the final decision of the Civil Service Commission. Id. Section 158.037(a) does not define what constitutes a “final decision”, but the Texas Supreme Court has defined a final agency order as one (1) that is definitive; (2) promulgated in a formal manner; (3) with which the agency expects compliance; and (4) that imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process. Texas-New Mexico Power Co. v. Texas Indus. Energy Consumers, 806 5.W.2d 230, 232 (Tex.1991).

At the hearing on August 22, 2005, the Civil Service Commission determined by a unanimous vote that it did not have jurisdiction of the appeals, but it did not reduce its ruling to writing. The transcription of that meeting reflects that Appellees were present. In the hearing on the plea to the jurisdiction, the trial court expressed concern that the Commission’s decision had not been reduced to writing. The court took the plea to the jurisdiction under advisement and later entered an order denying the plea without specifying the basis for the ruling.

Appellees have cited no authority requiring that the Commission’s ruling be in writing to trigger the appellate period set forth in Section 158.037(a). The transcript of the hearing reflects that one of the commissioners tendered a formal motion that the Commission find it did not have jurisdiction of the appeals. The motion was seconded, and it carried by a unanimous vote of the commissioners. Thus, the ruling of the Commission was definitive and promulgated in a formal manner. See Texas-New Mexico Power, 806 S.W.2d at 232. It is also clear that the Commission expected compliance with its ruling. Id. We conclude that the Commission’s decision was final on August 22, 2005. Section 158,037 required Appellees to appeal by filing a petition in district court within thirty days, but they failed to do so.

Appellees counter that the time limitation does not apply because they were not demoted, suspended, or removed from their employment positions as contemplated by Section 158.037(a). The statute presumes that the employee has suffered an adverse employment decision. Appel-lees suffered an adverse employment decision when they were not re-appointed. While the Commission may have erroneously determined that it lacked jurisdiction because of a semantical distinction, the employees were nevertheless required to initiate a lawsuit to address the merits of their complaints. Judicial review mandates compliance with the statutory procedural requisites. We sustain Issue Two, reverse the trial court’s order denying that portion of the plea to the jurisdiction, and render judgment granting the plea to the jurisdiction related to the appeal filed pursuant to Section 158.087.

MACIAS, Judge, sitting by assignment.

      . According to the pleadings, Keller and Es-cobedo were employed as detention corporals assigned to the jail division and Hartt-Goggin was a deputy sheriff.

      . Sheriff Samaniego died while this case was pending. It is well established that a suit against an official in his official capacity is effectively a suit against the governmental entity. El Paso County v. Alvarado, 290 S.W.3d 895, 897 n.2 (Tex.App.—El Paso 2009, no pet.). For convenience, we will refer to the Appellants as El Paso County throughout the opinion.

      . During oral argument, the County abandoned this contention based upon our recent decision in El Paso County v. Alvarado, 290 S.W.3d 895, 898-99 (Tex.App.—El Paso 2009, no pet.). Because we must clarify a portion of that opinion, we will address the issue in part.

      . The Legislature effectively overruled Lout-zenhiser’s holding that Section 101.101's notice requirement is not jurisdictional by amending Section 311.034 of the Government Code. Tex. Gov’t Code Ann. § 311.034. The rule stated in Simons and Loutzenhiser that not every plea to the jurisdiction can be appealed pursuant to Section 51.014(a)(8) is still good law.

      . The parties address a number of issues related to substantial compliance with the notice requirement. Because we lack jurisdiction to review the trial court’s ruling on the motion to dismiss, we express no opinion on these issues.

      . All parties agreed during oral argument that the Commission's determination was erroneous.


text:
    Daniel RANDOLPH, Jr., Appellant, v. TEXACO EXPLORATION AND PRODUCTION, INC., Cigna Property and Casualty of Dallas, and David K. Line, Attorney at Law, Appellees.
    No. 08-08-00157-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.
    Rehearing Overruled April 22, 2010.

      Daniel Randolph, Jr., Amarillo, pro se.
    David K. Line, Law Office of David Line, Dallas, pro se.
    Locker & Lee Law Firm, Irving, Eden Sholeen, Houston, for appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Daniel Randolph, Jr., pro se, appeals from no evidence summary judgments granted in favor of Texaco Exploration and Production, Inc., Cigna Property and Casualty of Dallas, and David K. Line. We affirm.

FACTUAL SUMMARY

On January 4, 1999, Randolph filed suit against several defendants, including TEPI, Cigna Property and Casualty, and his former attorney, David K. Line, alleging numerous claims, including negligence, gross negligence, fraud, conspiracy, employment discrimination, and violations of the Deceptive Trade Practices Act and the Americans with Disabilities Act. On October 31, 2001, the trial court granted summary judgment in favor of all the defendants, except for Line, and Randolph appealed. We dismissed the appeal for want of jurisdiction because the judgment was not final given that Randolph’s claims against Line were still pending. Daniel Randolph, Jr. v. Texaco Exploration & Production, Inc., Sandy Khalilinia, Jack E. Weber, and Bob Mayo, No. 08-01-00513-CV, 2003 WL 1949388 (Tex.App.-El Paso, April 24, 2003, no pet.). On November 2, 2006, five years after the trial court granted summary judgment, Randolph filed a motion to recuse the Honorable Brock Jones, Judge of the 112th District Court. Judge Jones voluntarily recused himself stating in the recusal order that he did so “[t]o avoid the appearance of impropriety,” and the Honorable Joseph Connally was assigned to the case. Judge Connally subsequently granted Line’s no evidence summary judgment motion and Randolph filed notice of appeal.

TEPI

In Issue One, Randolph raises three separate arguments related to the judgment granted in favor of TEPI.

No Evidence Summary Judgment

First, Randolph argues the trial court erred in granting the no-evidence summary judgment. Randolph fails to discuss the standard of review applicable to this issue, provide any analysis, or cite any relevant authority. Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that the brief contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and to the record. Tex. R.App.P. 38.1(i). Randolph has waived this argument because this portion of his brief does not comply with Rule 38.1(i). Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 556 (Tex.App.-El Paso 2007, no pet.).

Recusal/Disqualification

Second, Randolph contends that the summary judgment is void because the trial judge who heard that portion of the case, Judge Brock Jones, was partial and biased in favor of TEPI because he engaged in written ex parte communications with counsel about the case. He also asserts that Judge Jones was constitutionally disqualified. Judges may be removed from a particular case either because they are constitutionally disqualified, because they are subject to a statutory strike, or because they are recused under rules promulgated by the Texas Supreme Court. In re Union Pacific Resources Company, 969 S.W.2d 427, 428 (Tex.1998); Esquivel v. El Paso Healthcare Systems, Ltd., 225 S.W.3d 83, 87 (Tex.App.-El Paso 2005, no pet.). The grounds and procedures for each type of removal are fundamentally different. Esquivel, 225 S.W.3d at 87. If a judge is constitutionally disqualified or subject to disqualification under Texas Government Code § 74.053, any orders or judgment rendered by him are void. Id. Thus, a constitutional disqualification may be raised at any stage of the proceedings and cannot be waived. Id. at 87-88. In contrast, the existence of grounds for recu-sal of a judge does not void or nullify subsequent proceedings before that judge and can be waived if not raised by proper motion. Id. at 87-88,

In 2006, Randolph filed a motion to re-cuse the trial judge long after this court had dismissed Randolph’s appeal for want of jurisdiction because the summary judgment granted in favor of TEPI and Cigna was not final. The only basis for recusal stated in Randolph’s motion was that Judge Jones had failed to rule with respect to the remaining defendant, Line. Judge Jones voluntarily recused himself “[t]o avoid the appearance of impropriety.” After Judge Jones’ voluntary recusal, Randolph filed a motion to modify the judgment because the judge had allegedly engaged in an ex parte written communication with counsel for TEPI. The record does not reflect that Randolph obtained a ruling on his motion and there is no evidence in the record to support Randolph’s assertions that Judge Jones was subject to recusal on grounds of partiality or bias or that he was constitutionally disqualified. Randolph’s second argument is without merit.

The Assigned Judge

In the third sub-part of Issue One, Randolph alleges that the judge assigned to hear the case, Judge Connally, acted in an arbitrary and unreasonable manner and denied him a full and fair hearing. The precise nature of Randolph’s complaint about Judge Connally is unclear from the brief as he does not identify how the trial judge acted arbitrarily or at what point the judge denied him a hearing. At any rate, Randolph has waived these arguments because he does not discuss the applicable standard of review, does not provide any analysis of the issues, and does not cite any relevant authority. Tex.R.App.P. 38.1(i); Torres, 242 S.W.3d at 556. Issue One is overruled.

CIGNA

In the briefs table of contents, Randolph purports to raise an issue pertaining to the summary judgment granted in favor of Cigna but we have been unable to find any corresponding issue or argument in the body of the brief. Because Randolph has waived any claim of error by failing to brief it, we overrule Issue Two. See TexRApp. P. 38.1(i); Torres, 242 S.W.3d at 556. We affirm the judgment granted in favor of Cigna.

DAVID K, LINE

In Issue Three, Randolph raises multiple grounds related to the judgment granted in favor of Line.

No-Evidence Summary Judgment

First, Randolph challenges the no-evidence summary judgment granted in favor of Line. Randolph did not file a timely response to the summary judgment motion. After the trial court signed the order granting summary judgment, Randolph filed a motion for new trial asserting that his original response had been lost in the mail. He also filed a summary judgment response. The trial court denied the motion for new trial.

Rule 166a(i) provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex.R.Civ.P. 166a(i). A trial court is required to grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i) if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact. See TexR.CivP. 166a(i). Generally, the non-movant who fails to file a response and produce evidence is restricted to arguing on appeal that the no-evidence summary judgment is insufficient as a matter of law. Viasana v. Ward County, 296 S.W.3d 652, 654 (Tex.App.-El Paso 2009, no pet.); see Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 723 (Tex.App.-Houston [1st Dist.] 2003, no pet.)(when the respondent does not file a response, the controlling issue is whether the summary judgment motion was sufficient to warrant the no-evidence summary judgment and thus shifted the burden to the respondent to produce evidence that raised a genuine issue of material fact). Rather than challenge the sufficiency of Line’s summary judgment motion, Randolph points to evidence included in his late-filed response and argues it creates a fact issue. We are unable to consider Randolph’s untimely response in passing on this issue because the trial court did not grant leave for the late-filed response. See Fertic v. Spencer, 247 S.W.3d 242, 250-51 (Tex.App.-El Paso 2007, pet. denied).

Ex Parte Communication

Randolph next alleges that Judge Connally engaged in an ex parte communication with Line on April 9, 2008. Randolph filed a written objection based on a statement in a letter from Line to the court administrator, Cathy Carson, where counsel stated that Judge Connally had asked him to respond to Randolph’s request for findings of fact and conclusions of law. Under Canon 3(B)(8) of the Texas Code of Judicial Conduct, a judge is prohibited from initiating, permitting, or considering ex parte communications concerning the merits of a pending case. Tex. Code Jud.Conduct, Canon 3(B)(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005). An ex parte communication is one that involves fewer than all parties who are legally entitled to be present during the discussion of any matter. Erskine v. Baker, 22 S.W.3d 537, 539 (Tex.App.-El Paso 2000, pet. denied). The purpose behind prohibiting ex parte communications is to ensure that all legally interested parties are given their full right to be heard under the law. In re Thoma, 873 S.W.2d 477, 496 (Tex.Rev.Trib.1994, on appeal).

The record does not reflect that the trial court ruled on Randolph’s objection. Therefore, his complaint is waived. Tex.R.App.P. 33.1. Even if the issue had been preserved, the trial court’s request that Line file a response to Randolph’s request for findings of fact and conclusions of law does not constitute an ex parte communication about the merits of the case. This argument is without merit.

Frivolous Pleadings

Finally, Randolph contends that Line’s original answer and motion for summary judgment are frivolous pleadings filed in violation of Rule 13 of the Texas Rules of Civil Procedure. Rule 13 authorizes the imposition of sanctions if an attorney files an instrument that is groundless and is brought in bad faith or for the purposes of harassment. Tex.R.Civ.P. 13. The record does not reflect that Randolph filed a motion for sanctions pursuant to Rule 13. Consequently, nothing is presented for our review. Tex.R.App.P. 33.1. Issue Three is overruled. Having overruled each of the issues presented on appeal, we affirm the judgment of the trial court.

      . In the clerk’s record, the suit is styled Daniel Randolph, Jr. v. Texaco Inc., U.S.A., but Randolph's brief states that he incorrectly identified the defendant as Texaco Inc., U.S.A. and the correct name is Texaco Exploration and Production, Inc. Accordingly, we will refer to this Appellee as Texaco Exploration and Production, Inc. or TEPI.

      . The table of contents in Randolph's brief contains a section for each of the three appel-lees and each section contains one or more issues but the issues are not numbered. We will refer to the section relating to TEPI as Issue One, the section relating to Cigna as Issue Two, and the section relating to Line as Issue Three.

      . Tex.Const. art. 5, § 11.

      . Tex.Gov't Code Ann. § 74.053 (Vernon 2005)

      . Tex.R.Civ.P. 18b; Tex.R.App.P. 16.


author: DAVID PURYEAR, Justice.

text:
    Susan COMBS, Successor to Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, Appellants, v. CHEVRON, INC., Appellee.
    No. 03-97-00127-CV.
    Court of Appeals of Texas, Austin.
    April 9, 2010.
    Rehearing Overruled Aug. 27, 2010.

      Jim B. Cloudt, Assistant Attorney General, Taxation Division, Austin, TX, for Appellant.
    Ray Langenberg, Scott, Douglass & McConnico, LLP, Austin, TX, for Appel-lee.
    Before Justices PATTERSON, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

We withdraw our opinion of February 5, 2010, and substitute the following opinion in its place. Appellee’s motion for rehearing is denied.

Chevron, Inc. sued Texas’s Comptroller of Public Accounts to obtain a tax refund. Chevron had paid contractors to install temporary scaffolding at one of its refineries, and the Comptroller had treated that installation as a taxable rental of tangible personal property. Chevron argued that the installation should have been treated as a nontaxable service instead. More than eighteen months after it filed suit, Chevron amended its petition to add tax-refund claims that were unrelated to its scaffolding claim. Chevron then moved for partial summary judgment on the scaffolding claim. The trial court granted Chevron’s motion over the Comptroller’s objection, and Chevron moved to sever its scaffolding claim from its remaining claims. The Comptroller objected to Chevron’s severance motion and also filed a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over Chevron’s remaining claims because Chevron had not fulfilled the administrative prerequisites to suing on them. The trial court granted Chevron’s motion to sever and denied the Comptroller’s plea to the jurisdiction. The Comptroller appealed, arguing that the trial court erred in denying its plea to the jurisdiction and in granting Chevron’s motion for partial summary judgment. We will reverse and render judgment for the Comptroller on both issues.

FACTUAL AND PROCEDURAL BACKGROUND

Between 1993 and 1996, Chevron paid independent contractors to install temporary scaffolding at its Port Arthur refinery. The purpose of the scaffolding was to facilitate maintenance work on tall structures. The scaffolding contractors supplied scaffolding materials, erected the scaffolding, monitored its safety, and reconfigured or disassembled it when needed. The contractors always had supervisory employees on-site while the scaffolding was in use, but they did not themselves perform any maintenance work. Rather, other contractors and Chevron employees used the scaffolding to access areas that required maintenance.

Chevron paid $439,224.22 in tax on the scaffolding installation and later sought a refund of that amount, claiming that the installation was a nontaxable service. See Tex. Tax Code Ann. § 151.0101 (West 2008) (listing services that are taxable). The Comptroller refused to issue a refund, claiming that the installation qualified as a taxable rental of tangible personal property rather than as a service. See id. §§ 151.051 (tax imposed on “sale” of taxable items), .005(2) (“sale” includes rental of tangible personal property). Chevron administratively appealed the Comptroller’s determination. See id. § 111.104 (procedures for administratively appealing tax-refund issues). When its appeal was denied, Chevron filed a motion for rehearing that included 98 new tax-refund claims unrelated to its scaffolding claim. See id. § 111.105 (procedures for filing motion for rehearing). The Comptroller objected, asserting that Chevron could not raise tax-refund claims for the first time in a motion for rehearing. The presiding administrative law judge denied Chevron’s motion for rehearing without specifically addressing Chevron’s 98 new claims.

Chevron then sued the Comptroller in Travis County District Court. See id. § 112.151. Chevron’s original petition included only the scaffolding-related refund claim, but Chevron “reserve[d] its right to amend its pleadings with respect to” the 98 additional claims it had raised in its motion for rehearing. Chevron eventually moved for partial summary judgment on the scaffolding claim, and the Comptroller filed a cross-motion on the same subject. Shortly before the hearing on the motions, Chevron amended its petition to add two of the 98 claims it had introduced in its motion for rehearing.

The trial court proceeded to rule on the parties’ summary judgment motions, granting Chevron’s and denying the Comptroller’s. Chevron then moved to sever its scaffolding claim from its two remaining claims. The Comptroller filed a plea to the jurisdiction on the two remaining claims, arguing that the trial court lacked jurisdiction over them because Chevron had raised them at an impermissible juncture in the administrative proceedings. To create trial court jurisdiction over the claims, the Comptroller argued, Chevron first had to exhaust all possible administrative remedies for them. See MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex.App.-Austin 2005, pet. denied) (“[Jjudicial review of administrative orders is not available unless all administrative remedies have been pursued to the fullest extent.”). The Comptroller argued that because Chevron first raised the claims in its motion for rehearing rather than in its initial tax-refund request, the Comptroller did not have a full opportunity to weigh the merits of the claims before accepting or rejecting them. The Comptroller also objected to Chevron’s motion to sever, arguing that Chevron’s two new causes of action were not properly severable because they were not independently sustainable owing to their jurisdictional defects.

Chevron responded to the Comptroller’s plea to the jurisdiction by arguing that the tax code permitted it to sue on issues first raised in a motion for rehearing. See Tax Code § 112.152(a) (“[Gjrounds of error contained in the motion for rehearing ... may be raised in a suit.”). The trial court denied the Comptroller’s plea to the jurisdiction and granted Chevron’s motion to sever, assigning a new cause number to Chevron’s two remaining claims and entering a final judgment in the cause that now consisted only of the scaffolding claim. The Comptroller then perfected this appeal.

STANDARD OF REVIEW

We review summary judgments de novo. Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, 171 (Tex.App.-Austin 2004, pet. denied). Where, as here, both parties move for summary judgment, “we determine all questions presented and render such judgment as the trial court should have rendered.” Id. at 172.

We review de novo the denial of a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Whether a court has subject matter jurisdiction is a question of law. Id.

DISCUSSION

Issue One: Whether Chevron’s Scaffolding Contracts Were Taxable

The Comptroller argues that the installation of temporary scaffolding at Chevron’s refinery was a taxable rental of property rather than a nontaxable service. We agree, and we hold that the trial court therefore erred in granting Chevron’s motion for partial summary judgment.

The tax code imposes taxes on certain sales and services. See Tax Code §§ 151.051 (sales), .0101 (services). Leases of tangible personal property qualify as taxable “sales.” See id. § 151.005(2). Scaffolding qualifies as tangible personal property. See id. § 151.009. Erection, supervision, and disassembly of scaffolding, however, do not qualify as taxable services. See id. § 151.0101. Thus, if the installation of temporary scaffolding at Chevron’s refinery qualified as a property rental under the tax code, it was taxable. If it qualified as a service, it was not.

The tax code does not define “rental.” The Comptroller has, however, defined the term by rule: a property “rental” is “[a] transaction, by whatever name called, in which possession but not title to tangible personal property is transferred for a consideration.” 34 Tex. Admin. Code § 3.294(a)(2) (West 2009) (Comptroller of Pub. Accounts, Rental and Lease of Tangible Personal Property). We adopt the Comptroller’s definition because it comports with the tax code. See DuPont Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 419 (Tex.App.-Austin 2006, pet. denied) (“In determining whether a rule is valid, we are limited to ascertaining whether the rule is contrary to the relevant statute.... We will defer to an agency’s interpretation as long as it is reasonable and does not contradict the plain meaning of the statute.”) (citations omitted). Thus, to determine whether the installation of temporary scaffolding at Chevron’s refinery qualified as a taxable property rental, we must determine whether possession of the scaffolding was transferred to Chevron.

Neither the tax code nor the Comptroller’s rules define the term “possession” as it pertains to property rentals. The Comptroller has stated, however, that “[a] key element of ‘possession’ is ‘operational control’ over the tangible personal property.... A lessee must exercise operational control of the leased property in order to take possession thereof.” Tex. Comptroller of Pub. Accounts, Hearing No. 40,812, STAR Document No. 200310344H (Oct. 30, 2003). “Operational control,” in turn, means “using, controlling, or operating the tangible personal property.” Id.

“Unlike cranes, bulldozers, and backhoes, which require ‘operation’ while being used for the desired result, no operation of scaffolding is required when in use.” Tex. Comptroller of Pub. Accounts, Hearing No. 40,239, STAR Document No. 200411975H (Nov. 22, 2004). In other words, “once erected, scaffolding fulfills its purpose by remaining stationary.” Id. Thus, exercising “operational control” over scaffolding means using it to access high-up areas. See Tex. Comptroller of Pub. Accounts, Hearing No. 44,297, STAR Document No. 200512527H (Dec. 16, 2005) (“[A]ssembly of the scaffolding does not constitute operation ... the use of the scaffolding by the customers provides the element of possession typically incident to a, rental or lease transaction.”) (emphasis added); see also Tex. Comptroller of Pub. Accounts, Hearing No. 40,239, STAR Document No. 200411975H (Nov. 22, 2004) (stating that employees of scaffolding-installation company “are not operators. They assemble the scaffolding in the location selected by Claimant. Claimant then uses the scaffolding to achieve its desired result — access to the facility location in need of work.”); Tex. Comptroller of Pub. Accounts, Hearing No. 43,531, STAR Document No. 200508353H (Aug. 29, 2005) (scaffolding installers not “operators” of scaffolding, even though required “to be onsite at Claimant’s facility,” because “once the scaffolding is assembled it is used by either Claimant’s employees or by Claimant’s vendors to perform any necessary plant repairs or maintenance.”).

The above-cited Comptroller decisions make it clear that the Comptroller believes “operational control” over scaffolding is exercised by whoever uses the scaffolding to access high-up areas. Courts should defer to the Comptroller’s interpretation of her own rules. See Myers v. State, 169 S.W.3d 731, 734 (Tex.App.-Austin 2005, no pet.) (“Courts should defer to an agency’s interpretation of its own rules, unless the agency’s interpretation is inconsistent with the regulation.”). The trial court nevertheless determined that Chevron’s contractors retained operational control over the scaffolding because they controlled access to it. That determination was error because controlling access to scaffolding is not the same thing as controlling use of scaffolding. As the Comptroller’s decisions make clear, use of scaffolding determines operational control. See Tex. Comptroller of Pub. Accounts, Hearing No. 44,297, STAR Document No. 200512527H (Dec. 16, 2005) (“the use of the scaffolding by the customers provides the element of possession typically incident to a rental or lease transaction.”). Here, it is undisputed that the only people who used the scaffolding to access high-up areas were Chevron employees and maintenance contractors whose services are not at issue. Thus, under the Comptroller’s unequivocal precedent, possession of the scaffolding was transferred to Chevron. And because that precedent “is reasonable and does not contradict the plain meaning of the [relevant] statute,” we defer to it. DuPont Photomasks, 219 S.W.3d at 419.

Because possession of the scaffolding was transferred to Chevron, a “rental” occurred for Tax Code purposes. That fact does not end our inquiry, however, because it is also undisputed that the contracts at issue incorporated non-taxable services including the erection, oversight, and disassembly of the scaffolding. To determine the tax status of contracts that incorporate both taxable and non-taxable elements, we look to the contracts’ primary purpose or “essence.” See Rylander v. San Antonio SMSA Ltd. P’ship, 11 S.W.3d 484, 487 (Tex.App.-Austin 2000, no pet.) (“When a nontaxable service is bundled with a taxable sale or service, we apply the ‘essence-of-the-transaction’ doctrine to determine whether the service is a part of the sale.”). Put another way,

[i]f the real object of a mixed transaction is the purchase of equipment which is taxable, and the service element is incident to that purchase, the entire transaction is taxable. On the other hand, if the essence of the transaction is the purchase of a nontaxable service, which incidentally includes the purchase of some other service or equipment that is taxable, the entire transaction is nontaxable.

Id. (citations omitted).

We think it indisputable that the essence of Chevron’s scaffolding contracts was the rental of the scaffolding itself, not the attendant services. Chevron’s underlying goal in executing the contracts was to facilitate maintenance work at its refinery. It was scaffolding, not the services incidental to use of scaffolding, that Chevron primarily wanted. To put it another way, Chevron would (if possible) have gladly used the scaffolding without purchasing the attendant services. On the other hand, the attendant services would have been useless to Chevron without the ability to use the scaffolding to perform maintenance work.

Chevron argues that this analysis is overly simplistic because services were necessary to render the scaffolding usable. But just because services are a necessary part of a lease contract does not mean that those services are the essence of the contract. Texas law draws no distinction between necessary and unnecessary services in determining a contract’s tax status. See Tax Code § 151.0101; see also 34 Tex. Admin. Code § 3.294(d)(4) (“Charges in [a] lease agreement for labor, such as charges for supervision, set-up, hook-up, assembly or disassembly, erection, and dismantling, are included in the lease price and are taxable.”). Rather, the determinative issue is the contract’s “essence.” See Rylander, 11 S.W.3d at 487.

We reemphasize that Chevron’s overriding goal in executing the scaffolding contracts was to facilitate maintenance work. That work was performed by Chevron employees and by contractors whose contracts are not at issue here. If the contractors who performed the maintenance work had provided their own scaffolding, we would have no trouble finding that the essence of their contracts was a nontaxable service (maintenance) rather than a taxable rental of property (scaffolding). The scaffolding contracts at issue here, however, did not cover the maintenance work that was Chevron’s ultimate end.

Chevron tries to analogize the scaffolding contractors’ services to, among other things, the piloting of a chartered plane and the driving of a limousine, both of which the Comptroller treats as nontaxable services rather than taxable property rentals. This analogy fails because those activities both involve a contractor actively operating the rented property for the duration of the transaction. Cf. Tex. Comptroller of Pub. Accounts, Hearing No. 40,-239, STAR Document No. 200411975H (Nov. 22, 2004) (“Unlike cranes, bulldozers, and backhoes, which require ‘operation’ while being used for the desired result, no operation of scaffolding is required when in use.”). Here, in contrast, while experts erected, disassembled, and even supervised the scaffolding, they did not actively manipulate it while its intended purpose (maintenance work) was carried out. See Tex. Comptroller of Pub. Accounts, Hearing No. 44,297, STAR Document No. 200512527H (Dec. 16, 2005) (“the erection and dismantling were of no intrinsic value, except as a means to obtain scaffolding” for performance of maintenance work). The Comptroller has repeatedly examined scaffolding contracts and invariably ruled that they were essentially rentals even though they necessarily involved nontaxable services. See Tex. Comptroller of Pub. Accounts, Hearing No. 46,545, STAR Document No. 200904484H (Apr. 30, 2009) (“[T]he Comptroller has consistently ... held that the services that are performed in connection to scaffolding, such as the design, the erection labor, or the dismantling labor, are all services that are part of the rental of tangible personal property.”). These rulings are entitled to deference. See Myers, 169 S.W.3d at 734. We therefore hold that the Comptroller was entitled to summary judgment on Chevron’s scaffolding-related tax-refund issue.

Issue Two: The Comptroller’s Plea to the Jurisdiction

The Comptroller filed a plea to the jurisdiction after the trial court granted Chevron partial summary judgment on the scaffolding issue. The plea asserted that the trial court lacked jurisdiction over Chevron’s remaining claims because Chevron did not exhaust its administrative remedies for them. Chevron’s initial administrative refund request addressed only the scaffolding issue, but after the Comptroller refused to issue a refund, Chevron filed a motion for rehearing that included 98 new, unrelated claims. The Comptroller’s plea addressed the two of those claims that Chevron added to this lawsuit.

“In order to maintain an action against the Comptroller for a refund of taxes, a party must meet the procedural requirements of the tax protest law. Compliance with these procedures is a jurisdictional prerequisite for the trial court to hear and decide the merits of a tax refund suit.” Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 491 (Tex.App.-Austin 1996, writ denied) (citations omitted). The administrative procedures for filing a tax protest are contained in Tax Code sections 111.104 and 111.105. At the time Chevron filed its tax-refund claim in 2002, section 111.104 stated that a refund claim had to “be written,” had to “state the grounds on which the claim is founded,” and had to be “filed before the expiration of the applicable limitation period.” Section 111.105(c) states that a “tax refund claimant who is dissatisfied with the decision on the claim is entitled to file a motion for rehearing.” Tax Code section § 112.151 states categorically that a party must have followed the administrative procedures specified in both sections 111.104 and 111.105 before it can bring a lawsuit on a tax refund claim.

This statutory scheme makes clear that trial courts only have jurisdiction over tax refund claims that are first raised in accordance with Tax Code section 111.104 and then appealed in a motion for rehearing under Tax Code section 111.105. In other words, there are two parts to the administrative procedure that creates trial-court jurisdiction over tax refund claims. Chevron completed only the second part, the filing of a motion for rehearing, for the claims that the Comptroller challenges in its plea to the jurisdiction. We therefore conclude that the trial court lacked jurisdiction over those claims. See Sharp, 919 S.W.2d at 491 (no trial-court jurisdiction over tax refund claims unless claimant followed all administrative procedures).

Chevron argues that raising claims in a motion for rehearing is enough to create trial-court jurisdiction. While Tax Code section 112.152(a) does indeed say that “grounds of error contained in the motion for rehearing are the only issues that may be raised in a suit,” it is obvious that this statute sets forth a necessary but not a sufficient condition for trial-court jurisdiction. In other words, while the statute says that raising a tax-refund claim in a motion for rehearing is a prerequisite to filing suit, it does not say that raising a tax-refund claim in a motion for rehearing is the only prerequisite to filing suit. Were that interpretation of the statute correct, Tax Code section 112.151 would be nullified. See Tax Code § 112.151 (before filing suit on tax refund claim, party must follow procedures in Tax Code section 111.104 as well as file motion for rehearing under section 111.105). We reject statutory interpretations that have such results. See Tex. Gov’t Code Ann. § 311.021 (West 2005) (must presume entire statute is intended to be effective). Furthermore, the term “motion for rehearing” necessarily implies an antecedent hearing. Thus, as a matter of logic, a party cannot validly raise a claim for the first time in a motion for rehearing. Finally, Chevron’s position is defeated by the very tax code section that establishes the motion-for-rehearing procedure, which states that a “tax refund claimant who is dissatisfied with the decision on the claim is entitled to file a motion for rehearing.” Tax Code § 111.105(c) (emphasis added). This language clearly indicates that a motion for rehearing can only include claims that the Comptroller has already decided on.

Because Chevron failed to fulfill all administrative prerequisites to filing suit, the trial court lacked jurisdiction over the claims Chevron first raised in its motion for rehearing. The Comptroller’s plea to the jurisdiction should have been granted.

As a corollary of this holding, we also hold that the trial court erred in granting Chevron’s motion to sever. “[A] trial court properly exercises its discretion in severing claims when: (1) the controversy involves more than one cause of action; (2) the severed claim is one that could be asserted independently in a separate lawsuit; and (3) the severed actions are not so interwoven with the other claims that they involve the same facts and issues.” See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996). Here, the second requirement was not met because the trial court had no jurisdiction over the claims Chevron moved to sever. Accordingly, severance was error.

CONCLUSION

Chevron was essentially renting property, not obtaining services, when it contracted for the use of temporary scaffolding. Thus, its contracts were taxable, and the Comptroller was entitled to summary judgment on Chevron’s scaffolding-related tax-refund claim. The trial court lacked jurisdiction over Chevron’s other claims because Chevron did not follow the required administrative procedures before suing on them. We reverse and render judgment in favor of the Comptroller.

      . In a letter to the parties, the trial court explained that it based this conclusion on the facts "that the contractor’s employees inspected the scaffolding before every shift and tagged it as safe or unsafe, that Chevron’s employees and other contractors were directed to follow all instructions of the scaffolding contractor regarding its use, and that employees of the scaffolding contractor were constantly present when the scaffold was in use."

      . The Comptroller often employs a five-factor test to determine the taxability of transactions that have both taxable and non-taxable elements. See, e.g., Tex. Comptroller of Pub. Accounts, Hearing No. 25,040, STAR Document No. 8911H0966G01 (Nov. 10, 1989). This approach treats "essence of the transaction” as but one factor among others, including operational control, the "sweaty brow" factor (i.e., who supplies the majority of labor), labor as the primary cost component, and nearness to traditional rental. See id. Other Comptroller decisions, however, make it clear that “essence of the transaction” is the overriding issue and that the factorial approach is merely an analytical tool to help arrive at it. See, e.g., Tex. Comptroller of Pub. Accounts, Hearing No. 43,531, STAR Document No. 200508353H (Aug. 29, 2005) ("All of the above factors assist in determining the real issue here: what is the ‘essence of the transaction?' ”). Importantly, the very decision that created the factorial test treats "essence of the transaction” as the ultimate issue. See Tex. Comptroller of Pub. Accounts, Hearing No. 16,023, STAR Document No. 8504H0634A13 (Apr. 19, 1985) (treating "essence of the transaction” as ultimate test and examining other factors as means of determining it). That is to say, a close examination of that decision reveals that it did not treat "essence of the transaction” as merely a factor, but rather treated it as the issue that the other factors were supposed to help analyze. See id. Furthermore, placing ultimate emphasis on the "essence of the transaction” comports with our established precedent. See Sharp v. Direct Res. for Print, Inc., 910 S.W.2d 535, 538 (Tex.App.-Austin 1995, writ denied) ("The established test for determining whether a transaction is subject to sales tax involves the determination of the ultimate object or the essence of the transaction.”) (citing Bullock v. Statistical Tabulating Corp., 549 S.W.2d 166, 167 (Tex.1977)). The Comptroller has recognized the applicability of this precedent. See Tex. Comptroller of Pub. Accounts, Hearing No. 44,297, STAR Document No. 200512527H (Dec. 16, 2005) ("The Texas courts, in determining the essence of mixed transactions that include both tangible personal property and services, have looked to what is the ultimate object or purpose of the transaction.”) (citing Direct Res., 910 S.W.2d 535). Thus, we decline to engage in a five-factor analysis and instead look only at the “essence of the transaction.” We note, however, that such an analysis would result in the same outcome here.

      . Tax Code section 111.104 was revised in 2003. See Act of June 20, 2003, 78th Leg., R.S., ch. 1310, § 86, 2003 Tex. Gen. Laws 4782. The requirement that a tax-refund claim “state the grounds on which the claim is founded” became a requirement that a tax-refund claim "state fully and in detail each reason or ground on which the claim is founded.” See id. (emphasis added).