In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00940-CV
............................
HUNT COUNTY , TEXAS, Appellant
V.

GREEN TREE SERVICING L.L.C., f/k/a CONSECO FINANCE SERVICING CORP.,
Appellee

.............................................................
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 68,499
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MEMORANDUM OPINION
Before Justices Moseley, Richter, and Lang-Miers
Opinion By Justice Richter

In this inter locutory appeal, appellant Hunt County contends
that the trial judge erred in denying its plea to the jurisdiction. We
affirm the order of the trial court.
BACKGROUND

Appelle e Green Tree Servicing L.L.C. held a perfected security
interest in each of three manufactured homes that were located in Hunt
County, Texas. Pursuant to tax warrants, Hunt County seized the
manufactured homes and sold them at a tax sale. The funds were then
disbursed to satisfy the outstanding taxes and administrative costs in
accordance with the Texas Tax Code. See Tex. Tax Code Ann. § 33.25
(Vernon Supp. 2005). After these disbursements, there were excess
proceeds from the sale of each of the three manufactured homes.
The Hunt County Tax Office followed its usual procedure and
distributed these excess proceeds among the taxing entities in
accordance with their tax rate. According to Hunt County, it implemented

this procedure because there is no statutory authority that specifically
addresses the disbursement or distribution of excess proceeds from the
tax sale of personal property.
Green Tree brought suit against Hunt County for the excess
proceeds, alleging that Hunt County retained funds to which Green Tree
was entitled as first lien holder. Hunt County filed a plea to the
jurisdiction and requested that the trial court dismiss Green Tree's
lawsuit based on governmental immunity, lack of standing, and lack of a
justiciable issue. Green Tree responded to the plea, asserting its right
to recover funds under a constitutional takings claim. To justify the
claim, Green Tree referred the trial court to its original complaint and
the evidence submitted by the parties.
The trial court denied Hunt County's plea to the jurisdiction,
and this appeal ensued. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (Vernon Supp. 2005) (allowing interlocutory appeal from
order denying plea to jurisdiction). Hunt County contends that the trial
court erred in denying its plea to the jurisdiction because (1) Hunt
County is immune
from suit; (2) Green Tree lacks standing to sue; and (3) Green Tree's
suit did not present a justiciable issue.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea; its purpose is to
defeat a cause of action without regard to whether the claims asserted
have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). Subject matter jurisdiction is a question of law subject to de

novo review. Tex. Natural Res. Conservation Com'n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). In performing this review, we determine if
the pleader has alleged facts affirmatively demonstrating that the trial
court has subject-matter jurisdiction. Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe these pleadings
liberally in favor of the plaintiff and look to the pleader's intent.
Id.
ISSUE ONE: GOVERNMENTAL IMMUNITY

In its first issue, Hunt County contends that the trial erred in
denying its plea to the jurisdiction because it is immune from suit. We
disagree.
The doctrine of governmental immunity prohibits suits against a
governmental entity unless there has been a clear and unambiguous
constitutional or statutory waiver of that immunity. Fed. Sign v. Tex.
S. Univ., 951 S.W.2d 401, 405 (Tex. 1997), superceded by statute on
other grounds as stated in Gen. Servs. Comm'n v. Little-Tex Insulation
Co., 39 S.W.3d 591, 593 (Tex. 2001). It is well settled in Texas that
governmental immunity extends to the State's political subdivisions.
Sauls v. Montgomery County, 18 S.W.3d 310, 313 (Tex. App.-Beaumont 2000,
no pet.). Because Hunt County is a political subdivision of the State,
it is immune from suit absent a constitutional or statutory waiver of
immunity. See id.
A governmental entity does not have governmental immunity from a
valid claim under Article I, section 17 of the Texas Constitution. Texas
Workforce Comm'n v. MidFirst Bank, 40 S.W.3d 690, 697 (Tex. App.-Austin

2001, pet. denied). The “takings clause” forbids the governmental entity
from taking, damaging, or destroying a person's property for public use
without payment of adequate compensation. Tex. Const. art. I, § 17.
Violation of this section is established upon proof that (1) the
governmental entity intentionally performed certain acts (2) that
resulted in a taking of property (3) for public use. MidFirst Bank, 40
S.W.3d at 696.
In reviewing Hunt County's first issue, we must therefore
determine whether Green Tree alleged a proper takings claim. After
reviewing the record, we conclude that it did. Green Tree alleged (1)
that Hunt County conducted the tax sale and distributed the excess
proceeds among its taxing authorities pursuant to its self-implemented
practice; (2) that, as first lien holder, Green Tree was entitled to
claim the excess proceeds that were wrongly disbursed to the taxing
authorities; and (3) the tax sale was conducted to satisfy the
outstanding taxes due on the manufactured homes . See County of Burleson
v. General Electric Capital Corp., 831 S.W.2d 54 (Tex. App.-Houston
[14th Dist.] 1992, writ denied) (when the county violated § 33.25 of the
tax code by failing to give the lien holder prior notice, the county's
tax sale of a mobile home constituted a prohibited constitutional
taking). Here, Green Tree alleged that Hunt County violated § 33.25
of the tax code, not by failing to give notice, but by distributing to
the taxing authorities funds that were not owed to them. See Tex. Tax
Code Ann. § 33.25(f) (Vernon Supp. 2005).

Because Green Tree alleged a valid takings claim, Hunt County
was not immune from suit. We overrule Hunt County's first issue.
ISSUES TWO AND THREE: STANDING AND JUSTICIABLE ISSUE

In issues two and three, Hunt County contends that the trial
court erred in denying its plea to the jurisdiction because Green Tree
lacks standing to bring the suit and failed to present a justiciable
issue. A party has standing to bring suit if (1) it has suffered a
distinct injury and (2) there exists a real controversy that will be
determined by the judicial determination sought . Brown v. Todd, 53
S.W.3d 297, 305 (Tex. 2001). This second component of standing refers to
presentation of a justiciable issue. State Bar v. Gomez, 891 S.W.2d 243,
245-46 (Tex. 1994). The pleadings and the record in this case reveal
that Green Tree pled both injury and a real controversy with respect to
the disbursement of the excess funds . We overrule Hunt County's
remaining two issues.
CONCLUSION

Having overruled all of Hunt County's issues, we affirm the
order of the trial court denying Hunt County's plea to the jurisdiction.

MARTIN RICHTER
JUSTICE