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At a Glance:
Bass v. Waller County Sub Regional Planning Commission
February 24, 2017
514 S.W.3d 908
Published Opinion

Bass v. Waller County Sub Regional Planning Commission

Court of Appeals of Texas, Austin.

James M. BASS, in his Official Capacity as Executive Director of the Texas Department of Transportation, Appellant



NO. 03-17-00039-CV


Filed: February 24, 2017


Attorneys & Firms

The Honorable Ryan D. V. Greene, Terrill & Waldrop, 810 W. 10th Street, Austin, TX 78701-2005, for Appellee.

Mr. Thornton O. Wood, Office of the Attorney General, P. O. Box 12548, Austin, TX 78711-2548, for Appellant.

Before Justices Goodwin


Bob Pemberton, Justice

Our jurisdiction in this appeal has been challenged by motion of the appellee, the Waller County Sub-Regional Planning Commission, which asserts that the trial-level rulings being brought before us are interlocutory and have not been made appealable by statute. We requested and received a response from the appellant, James Bass, in his official capacity as Executive Director of the Texas Department of Transportation. While acknowledging there is no final judgment, the Executive Director argues that we possess jurisdiction under Section 51.014(a)(8).


The underlying litigation arises along one of the larger faultlines of policy and priorities found in modern-day Texas—the recurrent tensions between advocates of large-scale transportation projects to connect our State’s urban centers versus those who perceive detriment to the less populous regions lying between. Currently in development—with integral TxDOT involvement—is a high-speed railway project that would connect Dallas and Houston. In the project’s anticipated path lies Waller County, the region served by the Planning Commission,2 and that body has demanded a seat at the planning table by virtue of Section 391.009(c) of the Local Government Code, which states that “state agencies,” “[i]n carrying out their planning and program development responsibilities, ... shall, to the greatest extent feasible, coordinate planning with” regional planning commissions “to ensure effective and orderly implementation of state programs at the regional level.”3 But according to the Planning Commission, TxDOT has refused to “coordinate” with it in this manner and instead proceeded “at full steam” with planning and studies focused on a single “pre-selected route” through Waller County that is favored by the project’s private developer, to the exclusion of other alternative routes more favorable to local concerns. In fact, the Planning Commission further complains, TxDOT has advised that it will not so “coordinate” until after the completion of a draft environmental-impact study based on the “pre-selected route,” a process that the Planning Commission perceives will deprive it—and the local interests it represents—of any meaningful input in the project’s ultimate routing and placement.

Based on these and other allegations, and adhering to the conceptual and procedural framework for claims challenging governmental conduct alleged to be ultra vires of legal authority,4 the Planning Commission has sued the Executive Director, in his official capacity, seeking declarations establishing the existence of the aforementioned claimed duty of TxDOT under Section 391.009(c) imposes any duty on TxDOT that would be considered ministerial or non-discretionary or could otherwise have been violated.7

The Planning Commission also filed a motion for partial summary judgment seeking the declaratory relief for which it had pleaded. The Executive Director filed a response in which he reurged his jurisdictional challenges regarding the declaratory claims as grounds for denying the motion. He added, as further grounds for denying the motion, that fact issues precluded summary judgment and that Section 391.009(c) had no application to the high-speed-rail project in the first place.8

The district court heard oral argument on the Planning Commission’s motion for partial summary judgment, the Executive Director’s plea to the jurisdiction, and the Executive Director’s Rule 91a motion but concluded that “existing fact questions regarding the jurisdictional issue should be resolved by the fact finder at trial.” Accordingly, the order states that the district court “declines to rule on the Plea to the Jurisdiction at this time,” and “that the determination of Defendant’s Plea to the Jurisdiction is reserved for trial.” The relative timing of the two orders, which the Executive Director acknowledges, will eventually become significant to our analysis.10

*912 On January 13, 2017—within the twenty-day deadline that would govern a permissible interlocutory appeal11—the Executive Director filed a notice of appeal purporting to challenge both orders. The Planning Commission’s motion challenging our jurisdiction over that appeal followed.


In ascertaining whether we have jurisdiction here, our starting point is that appeals generally may only be taken from final judgments or orders and that appeals of interlocutory orders are authorized only if and to the extent explicitly permitted by statute.12 A corollary principle is that we “strictly construe” statutes that would authorize appeals of interlocutory orders, as they represent a “ ‘narrow exception to the general rule that only final judgments are appealable.’ ”13

As the Planning Commission emphasizes in its dismissal motion, the Legislature has thus far not seen fit to authorize—at least categorically—appeals of interlocutory orders granting partial summary judgment (the subject of the district court’s first order), or those denying CCNG Development case,18 and our sister courts are in accord.19

The Executive Director does not appear to contest any of these propositions. He insists, rather, that we possess jurisdiction under Section 51.014(a)(8) to the same extent as his plea to the jurisdiction would.21

The second principle, also recognized by the Texas Supreme Court, is that *914 a denial of a jurisdictional challenge reviewable under Section 51.014(a)(8) in which he sought to challenge the trial court’s denial of his motion for summary judgment disputing the trial court’s jurisdiction.25 The court of appeals dismissed the appeal, reasoning that there was no order explicitly granting or denying a plea to the jurisdiction.26 The Texas Supreme Court reversed, reasoning that Thomas had raised his jurisdictional challenge through his summary-judgment motion and that this challenge had been denied implicitly through the trial court’s awarding of declaratory relief.27 The high court reasoned:

To be entitled to an interlocutory appeal, section 51.014(a)(8) of the Texas Civil Practice and Remedies Code and gives the court of appeals jurisdiction to consider Thomas’s interlocutory *915 appeal.28

The Executive Director also emphasizes a subsequent memorandum opinion from this Court in which we summarized the rule of Thomas to conclude that a trial-court order remanding the suit to the agency, made over a jurisdictional challenge raised through a plea to the jurisdiction and a summary-judgment motion, “necessarily denied [the] plea to the jurisdiction as well as [the] motion for summary judgment” notwithstanding the absence of an explicit ruling on the plea.30

The Executive Director views this case as a reprise of Thomas contemplated and from which a denial of the Executive Director’s jurisdictional challenges can be implied. More critically, the Planning Commission suggests, the district court’s order explicitly deferring its ruling on the jurisdictional issue until trial belies any implied rejection of that challenge when granting the partial-summary-judgment motion and declaratory relief.

The Executive Director’s arguments in reliance on Section 51.014(a)(8).

The first alternative reason is perhaps the most obvious one—we should be hesitant to conclude that the district court impliedly denied the Executive Director’s jurisdictional challenge through its “Order Granting Plaintiff’s Motion for Partial Summary Judgment” when its “Order on Defendant’s Plea to Jurisdiction and Section 51.014(a)(8). Nor would the interlocutory summary-judgment ruling, in itself, be appealable.

Alternatively, the effect of the district court’s explicit deferral of its jurisdiction ruling would have been to vacate any jurisdictional ruling implicit in its summary-judgment order. It is in this regard that the sequence of the two orders, noted in our introduction, becomes significant. Both orders, being interlocutory, remained subject to change or modification—or being abrogated altogether—until merged into a final judgment.33 And because the “Order Granting Plaintiff’s Motion for Partial Summary Judgment” preceded the “Order on Defendant’s Plea to Jurisdiction and Section 51.014(a)(8).


This litigation presents a number of potentially challenging legal questions for the Judiciary, and the broader policy and societal debates from which these arise may be more vexing still for the other two branches. But all of these matters presently lie beyond the subject-matter jurisdiction with which this Court is vested. Accordingly, we grant the Planning Commission’s motion and dismiss this appeal.



See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).


As its full name indicates, the Planning Commission is a “regional planning commission” created under Chapter 391 of the Local Government Code and comprised of municipalities and other local government entities in Waller County. See generally Tex. Loc. Gov’t Code §§ 391.001–.006.


Id. § 391.009(c); see also id. § 391.002(2) (“In this chapter: ... ‘Commission’ means a regional planning commission, council of governments, or similar regional planning agency created under this chapter.”).


See City of El Paso, v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009).


The Planning Commission has also asserted an accompanying claim for the attorney’s fees that would be permitted by the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009.


See Tex. R. Civ. P. 91a.


See Section 391.009(c) affords it leeway to “coordinate” with the Planning Commission at some later juncture in the project.


More specifically, the Executive Director disputed that the project fell within the “state programs” referenced in Section 391.009(c).


The district court ordered that:

[The Planning Commission] is entitled to judgment declaring that [TxDOT] has a duty to coordinate planning, to the greatest extent feasible, with the [Commission] with respect to the implementation of the high-speed railway that is being planned to run between Dallas and Houston, Texas and that [the Executive Director] has acted outside his powers and authority by refusing to direct [TxDOT] to perform its statutory duty to coordinate planning, to the greatest extent feasible, with the [Planning Commission], with respect to the implementation of the high-speed railway that is being planned to run between Dallas and Houston, Texas.


In addition to acknowledging this sequence of events in his response to the Planning Commission’s dismissal motion, the Executive Director cites to portions of a reporter’s record from the hearing that was brought forward at his request. These excerpts include statements by the district court indicating that it had signed the summary-judgment order, but was deferring ruling on either the plea to the jurisdiction or Rule 91a Motion to Dismiss” on the same day but after the hearing.


See 28.1(a), (b).


See, e.g., Stary, 967 S.W.2d at 352–53).


See, e.g., Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).


See, e.g, Tex. Civ. Prac. & Rem. Code § 51.014 (enumerating categories of appealable interlocutory orders). However, either type of order can conceivably include component rulings that have been made appealable, as we will discuss shortly.


See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).


The Executive Director does seem to complain of an on-the-record observation by the district court that “if I grant or deny the plea, one of you is going to appeal and that is just going to lo[g] jam this process.” But the Executive Director does not contend that the district court, for this reason or any other, acted beyond its discretion in its ultimate decision to defer the ruling.


See Section 51.014(a)(8) extends to state officials sued in official capacity who have asserted trial-level jurisdictional challenges).


See Bland Indep. Sch. Dist., 34 S.W.3d at 555).


See Section 51.014(a)(8) where “trial court specifically stated it was not ruling on the pleas to the jurisdiction”).


See, e.g., Section 51.014(a)(8) “is not to a particular procedural vehicle[,] but to the substance of the issue raised”).


See Section 51.014(a)(8)).


Tex. R. App. P. 33.1(a)(2)(A) (“As a prerequisite to presenting a complaint for appellate review, the record must show that: ... the trial court ... ruled on the request, objection, or motion, either expressly or implicitly.”).


See 207 S.W.3d at 336–37.


See id. at 337.


See id. at 338.


See id.


See id. at 339–40.




Thomas, 207 S.W.3d at 339–40).


See Id. at *1, 2010 Tex. App. LEXIS 2771 at *3–4.


See Waller County, 453 S.W.3d at 73, 75–76 (trial court’s denial of summary-judgment motion did not imply jurisdictional ruling, so as to conflict with court’s ruling deferring jurisdictional issue, because motion could have been denied based on either jurisdictional or non-jurisdictional grounds).


Cf. Fletcher v. Minnesota Mining & Mfg. Co., 57 S.W.3d 602, 604–05 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“We reject appellants’ attempt to recast their denied charge ... as an implied ruling granting 3M’s motion for directed verdict, when that implied ruling would contradict the trial court’s express ruling denying that same motion.”).


See, e.g., In re Garza, 153 S.W.3d 97, 102 (Tex. App.—San Antonio 2004, no pet.)).

End of Document