City of Houston v. Delisa Boodoosingh

Affirmed and Majority and Concurring Opinions filed June 27, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00220-CV

CITY OF HOUSTON, Appellant
V.
DELISA BOODOOSINGH, Appellee

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2023-02403

CONCURRING OPINION

Civil Practice and Remedies Code section 51.014(a)(8) grants this court
subject-matter jurisdiction over an interlocutory appeal from an order that grants or
denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem.
Code § 51.014(a)(8). The plain-meaning of the statute doesn’t say we have
jurisdiction over the denial of a Texas Rule of Civil Procedure 91a motion.

The closest thing to precedent from the supreme court holding that section
51.014(a)(8) includes Rule 91a is San Jacinto River Authority v. Medina. 627
S.W.3d 618, 621 (Tex. 2021). Much like this court’s opinion in San Jacinto River
Authority v. Lewis, this is more of a mere announcement—without any meaningful
discussion or analysis—that we have subject-matter jurisdiction over the
interlocutory denial of a Rule 91a motion. 572 S.W.3d 838, 839–40 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).

I acknowledge that the supreme court at times has effectively rewritten
statutes. See, e.g., DeWitt v. Harris Cnty., 904 S.W.2d 650 (Tex. 1995). DeWitt is
precedent I must follow, notwithstanding the persuasive dissent. While there is far
less to Medina than DeWitt, I accept Medina’s conclusory announcement.

The legislature should amend section 51.014(a)(8) and not passively
acquiesce to judicial rewrites of statutes that serve to expand our subject-matter
jurisdiction. It shouldn’t take an opinion like Fleming Foods to get legislative
attention. Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex.
1999), legislative nonacceptance noted by Tex. H.B. 2809, § 3, 77th Leg., R.S.
(2001). There ideally should be an interim report prepared for each regular session
of the legislature that notes significant opinions on statutory construction by the
Texas appellate courts. Sometimes the appellate courts suggest that the legislature
consider changes to existing statutes, and I wonder if that falls on deaf ears merely
because no one in the legislative department is charged with summarizing those
opinions and presenting that report to the appropriate committees in the house and
senate. We can do better than this.

I reluctantly concur that this court has subject-matter jurisdiction to reach the
merits of the appeal and also concur in this court’s judgment.

/s/ Charles A. Spain
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain (Zimmerer, J., majority).

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