Chapter 21-9 Attacking Subject Matter Jurisdiction

• Jurisdiction: United States

21-9 Attacking Subject Matter Jurisdiction

A plea to the jurisdiction challenges a Texas court's subject matter jurisdiction. A plea to the jurisdiction may be presented at any time before final judgment because subject matter jurisdiction cannot be waived prior to final judgment. A challenge to the court's subject matter jurisdiction may be raised for the first time on appeal.⁶³

Where a plea to the jurisdiction challenges the pleadings, the court must determine whether the pleader has affirmatively alleged facts demonstrating that the court has subject matter jurisdiction.⁶⁴ Where the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction, the trial court should provide an opportunity to amend the pleadings, unless the pleading affirmatively demonstrated a lack of jurisdiction.⁶⁵

In cases where the plea to the jurisdiction attacks the evidence, as is often the case with claims of sovereign immunity, the trial court may consider evidence submitted by the parties.⁶⁶ If the evidence raises a fact question with respect to subject matter jurisdiction, the trial court will deny the plea and the fact issue will be resolved by the jury.⁶⁷ The Supreme Court of Texas has stated that this procedure mirrors that for summary judgment motions.⁶⁸ The burden is on the defendant to establish a lack of subject matter jurisdiction.⁶⁹ Only then does the burden shift to the plaintiff to raise a fact issue regarding jurisdiction.⁷⁰

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Notes:

^[63] Henry v. Cox, 520 S.W.3d 28, 35 (Tex. 2017) (citing Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016)); Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012).

^[64] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

^[65] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

^[66] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

^[67] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

^[68] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

^[69] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

^[70] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).