AFFIRM, and Opinion Filed February 20, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00765-CV

KINGVISION PAY-PER-VIEW, LTD., GARDEN CITY BOXING CLUB, INC., 

AND ENTERTAINMENT BY J&J, INC., Appellants

V.

DALLAS COUNTY, TEXAS, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. 07-11471-F

MEMORANDUM OPINION

Before Justices Francis, Lang-Miers, and Lewis 

Opinion by Justice Lang-Miers

Appellants KingVision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and 

Entertainment by J&J, Inc. appeal from an order granting a plea to the jurisdiction and motion to 

dismiss filed by appellee Dallas County, Texas. We affirm. 

BACKGROUND

In 2001 and 2003 appellants sued multiple defendants alleging that they illegally 

intercepted and aired pay-per-view boxing matches at various establishments. After obtaining 

judgments against the defendants, appellants delivered writs of execution to Michael Dupree, 

who at the time was the constable of Dallas County Precinct No. 5. After Dupree failed to 

perform his duties with respect to the writs, appellants filed post-judgment motions to recover 

the full amount of the judgments from Dupree and his surety pursuant to former sections 34.064 
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and 34.065 of the Texas Civil Practice and Remedies Code, which were in effect at the time.

1

 As 

a result of those motions appellants obtained eight judgments against Dupree totaling over 

$1 million. Appellants then petitioned the trial court in this case to issue a writ of mandamus 

directing the County to pay the judgments obtained against Dupree, and to raise taxes if 

necessary to satisfy the judgments. In response the County filed a plea to the jurisdiction and 

motion to dismiss arguing that (1) the judgments at issue were against Dupree in his personal 

capacity, (2) Dupree could petition the County Commissioners Court for indemnification, but 

appellants lacked standing to enforce the judgments against the County, and (3) the judgments 

did not waive the County’s sovereign immunity. Conversely, appellants moved for summary 

judgment and argued that former sections 34.064 and 34.065 are a “legislative waiver of 

immunity.” At the hearing on the County’s motion, appellants’ counsel also argued that the 

County had waived its claim of immunity because in its motion it used the term “sovereign 

immunity,” which applies to the state and its agencies, rather than the term “governmental 

immunity,” which applies to counties and other political subdivisions. After the hearing the trial 

court granted the County’s plea to the jurisdiction and dismissed appellants’ lawsuit.

ANALYSIS

In one issue on appeal appellants argue that the trial court erred when it granted the 

County’s plea to the jurisdiction. In support, appellants raise two main arguments: (1) appellants 

have standing to bring the suit, and (2) former civil practice and remedies code sections 34.064 

and 34.065 waive the County’s governmental immunity. We need only address appellant’s 

second argument because our conclusion regarding the County’s immunity is dispositive of this 

appeal.

 1 Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3274 (amended 2007) (current version at TEX. CIV. PRAC. &

REM. CODE ANN. §§ 34.064, 34.065 (West 2008)).
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Under the doctrine of governmental immunity counties and other political subdivisions of 

the state cannot be sued without their consent. See City of Houston v. Williams, 353 S.W.3d 128, 

134 (Tex. 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006)).

Governmental immunity has two components: immunity from liability, which bars enforcement 

of a judgment against a governmental entity, and immunity from suit, which bars suit against the 

entity altogether. See Tooke, 197 S.W.3d at 332. 

“Waiver of a county’s immunity from suit requires a clear and unambiguous expression 

of the Legislature, either by statute or resolution.” Webb Cnty. v. Khaledi Props., Ltd., No. 04-

12-00251-CV, 2013 WL 3871060, at *2 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem. 

op.); see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 n.6 (Tex. 2003) (listing 

statutes expressly waiving immunity from suit). The plaintiff bears the burden to allege a valid 

waiver of immunity. Dallas Cnty. v. Logan, No. 05-11-00480-CV, 2014 WL 69038, at *6 (Tex. 

App.—Dallas Jan. 9, 2014, no pet. h.).

Whether a statute waives governmental immunity is a question of law, which we review 

de novo. See Harris Cnty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.]

2004, no pet.) (statutory waiver of immunity is question of law); Tex. Mun. Power Agency v. 

Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007) (“Statutory construction is a question of 

law, which we review de novo.”). We construe statutes waiving sovereign and governmental 

immunity strictly. See City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). 

With these standards in mind, we begin by examining the text of former civil practice and 

remedies code sections 34.064 and 34.065 in effect at the time. Those sections stated as follows:

34.064 Improper Return of Writ

If an officer neglects or refuses to return a writ of execution as required by law or 

makes a false return on a writ of execution, the officer and his sureties are liable 
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to the person entitled to receive the money collected on the execution for the full 

amount of the debt, plus interest and costs. The total amount is recoverable on 

motion of the plaintiff filed with the court that issued the writ, following five 

days’ notice.

34.065 Failure to Levy or Sell

If an officer fails or refuses to levy on or sell property subject to execution and the 

levy or sale could have taken place, the officer and his sureties are liable to the 

party entitled to receive the money collected on execution for the full amount of 

the debt, plus interest and costs. The total amount is recoverable on motion of the 

party filed with the court that issued the writ, following five days’ notice to the 

officer and his sureties.2

To support their argument that former sections 34.064 and 34.065 waived the County’s 

immunity from suit, appellants rely on Johnson Roofing, Inc. v. Discount Rental, Inc., No. 10-10-

00239-CV, 2010 WL 3943780 (Tex. App.—Waco Oct. 6, 2010, pet. denied) (mem. op.). That 

case, however, was not a suit against a county and did not address a county’s immunity from 

suit. As a result, it does not support appellant’s argument. Appellants also cite generally to our 

decision in Freeman v. Wirecut E.D.M., 159 S.W.3d 721 (Tex. App.—Dallas 2005). Like 

Johnson Roofing, however, Freeman was not a suit against a county and does not stand for the 

proposition that a county is amenable to suit under former sections 34.064 and 34.065. 

Appellants also argue that governmental immunity does not bar petitions for writs of 

mandamus against a political subdivision to enforce judgments obtained against its officers. To 

support this argument, appellants rely on Delta County Levee Improvement District v. Leonard, 

516 S.W.2d 911 (Tex. 1975), which arose from a levee improvement district’s failure to pay 

principal and interest on bonds issued for the construction and maintenance of levees and other 

improvements. The underlying judgments in that case, however, were against the district itself, 

 2 Under the current version of section 34.064, an officer who refuses to file or amend a return of writ after receiving notice is subject to 

sanctions for contempt. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.064 (West 2008). And under the current version of section 34.065, if an 

officer fails or refuses to levy on or sell property subject to execution, and other enumerated conditions are met, the officer and his sureties are 

liable to the judgment creditor only for actual damages suffered. See id. § 34.065. 
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not against an officer. As a result, Leonard does not support appellants’ argument that the 

judgments against Dupree waived the County’s governmental immunity in this case.

Relying on City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), appellants also 

argue for the first time in their reply brief that the judgments against Dupree fall within the ultra 

vires exception to governmental immunity. As a general rule we do not consider arguments 

raised for the first time in a reply brief. See Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 

803 n.5 (Tex. App.—Dallas 2011, no pet.). But even if it had been timely raised, appellants’ 

ultra vires argument does not support their claim that the County’s immunity was waived in this 

case. The ultra vires exception to immunity applies when a plaintiff seeks declaratory relief 

against a government official who allegedly acts without legal or statutory authority. See Bd. of 

Trustees of Galveston Wharves v. O’Rourke, 405 S.W.3d 228, 234 (Tex. App.—Houston [1st 

Dist.] 2013, no pet.). In those cases, however, the government entity maintains immunity from 

suit and is not a proper defendant. Id. 

In short, former sections 34.064 and 34.065 do not clearly and unambiguously waive the 

County’s immunity from suit and the authorities appellants rely upon do not apply to the facts of 

this case. As a result, we conclude that appellants did not meet their burden to allege a valid 

waiver of the County’s governmental immunity from suit. 

CONCLUSION

We resolve appellants’ issue against them and affirm the trial court’s order granting the 

County’s amended plea to the jurisdiction and dismissing appellants’ lawsuit. 

120765F.P05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

KINGVISION PAY-PER-VIEW, LTD., 

GARDEN CITY BOXING CLUB, INC., 

AND ENTERTAINMENT BY J&J, INC., 

Appellant

No. 05-12-00765-CV V.

DALLAS COUNTY, TEXAS, Appellee

On Appeal from the 116th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. 07-11471-F.

Opinion delivered by Justice Lang-Miers. 

Justices Francis and Lewis participating.

In accordance with this Court’s opinion of this date, the trial court’s order granting 

appellee Dallas County, Texas’s pleas to the jurisdiction is AFFIRMED.

It is ORDERED that appellee Dallas County, Texas recover its costs of this appeal from 

appellants Kingvision Pay-Per-View, Ltd., Garden City Boxing Club, Inc., and Entertainment by 

J&J, Inc.

Judgment entered this 20th day of February, 2014.

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE