Court of Appeals holds it does not have interlocutory jurisdiction over reinstatement order, even though immunity is involved

West Travis County Public Utility Agency, on behalf of itself and its Directors, Larry Fox, Michael Murphy, Ray Whisenant, Bill Goodwin, and Scott Roberts, in their Official Capacities v. CCNG Development Co., L.P., No.03-16-00521-CV (Tex. App— Austin, January 4, 2017)

This opinion will mainly be of interest to litigators for procedural precedent, but the underlying case is a breach of a utility agreement and whether governmental immunity is waived. Essentially, the court of appeals lacks interlocutory jurisdiction in this case over an order reinstating a case from the dismissal docket for want of prosecution.

CCNG Development Co., L.P. (“CCNG”) sued West Travis County Public Utility Agency (“WTCPU”) for breaching a utility agreement. The WTCPU filed a plea to the jurisdiction. However, no ruling was issued for two years (while negotiations were going on) and the trial court judge dismissed the case for want of prosecution on a standard drop docket setting. CCNG then timely filed a motion for new trial and motion to reinstate the case and WTCPU asserted the trial court lacked jurisdiction to reinstate because it lacked jurisdiction over the underlying case and the case was moot.  CCNG asserted it should be given the opportunity to respond to the plea and asserted the claim was moot.  The trial court granted CCNG’s motion for new trial and WTCPU filed an interlocutory appeal asserting such an order was the equivalent of the denial of the underlying plea to the jurisdiction.

The Court of Appeals held it has jurisdiction over an interlocutory appeal only to the extent such jurisdiction is expressly granted by §51.014(a) of the Texas Civil Practice and Remedies Code. The reinstatement order does not expressly address WTCPU’s challenge to the trial court’s jurisdiction on either immunity or mootness grounds. A review of the record demonstrates that the trial court did not otherwise expressly deny or grant the Agency’s jurisdictional challenge.  In essence, the reinstatement order simply put the case back on the docket in order to allow the parties to brief and the court to rule on the plea. The trial court expressly stated on the record that CCNG should have an opportunity to respond to the WTCPU’s argument and evidence, that it was reinstating the case, and that after reinstatement WTCPU could present its jurisdictional challenge for the court’s consideration.  [Comment: In other words the trial court always has jurisdiction to determine whether it has jurisdiction of the underlying case.] Since no denial of the plea is present, and all indications are the court intended to rule on the plea in the near future, the court of appeals does not have interlocutory jurisdiction over the order to reinstate.

If you would like to read this opinion click here. The Panel includes Justice Puryear, Justice Pemberton, and Justice Field. Justice Field delivered the opinion of the court. If you would like to see the representatives for the Appellants and Appellee click here for the docket page.