Hagood v. City of Houston Zoning Board of Adjustment

982 S.W.2d 17, 1998 Tex. App. LEXIS 1368, 1998 WL 92011

• Court: Court of Appeals of Texas
• Decided: March 5, 1998
• Docket: No. 01-97-00172-CV
• Status: Published

Opinions

OPINION

NUCHIA, Justice.

This is an appeal from the district court’s denial of a writ of certiorari in zoning board appeal. We dismiss for want of jurisdiction.

BACKGROUND

The City of Houston Zoning Board (“the Board”) granted a variance to David Weekley Homes, Inc., for a lot at 5354 Navarro, Houston, Texas. Hagood and Porter took exception to this variance and filed a petition for writ of certiorari on May 31, 1996. In response, the Board filed a motion to deny writ of certiorari which requested that the district court refuse to assert its jurisdiction. Porter and Hagood filed a response. The trial court, without granting an oral hearing, issued an order stating it had considered the petition, the Board’s motion to deny, the evidence presented, the pleadings and other documents on file, and denied the petition for writ of certiorari. In a single point of error, Hagood and Porter argue that the trial court erred and abused its discretion in denying, on the merits, their petition for writ of certio-rari.

DISCUSSION

Apparently, the parties and district court have mistakenly assumed that the writ of certiorari in Tex. Loc. Gov’t Code Ann § 211.011(c) (Vernon 1988) is a discretionary appeal and that the district court by denying the writ of certiorari was refusing to exercise its discretion to assert jurisdiction. These are incorrect assumptions.

Once a party files a petition within 10 days after a zoning board decision, the court has subject matter jurisdiction to hear and determine a claim that a board of adjustment acted illegally. Tex. Loc. Gov’t Code Ann § 211.011 (Vernon 1988); Davis v. Zoning Bd. of Adjustment, 865 S.W.2d 941, 942 (Tex.1993). The Davis court held that where the appellants comply with the procedures established by the legislature for challenging board of adjustment decisions, they “are entitled to their day in court.” Davis, 865 S.W.2d at 942. A writ of certiorari is the method by which the court conducts its review; its purpose is to require a zoning board of adjustment to forward to the court the record of the zoning decision being challenged, and has nothing to do with the court’s jurisdiction. Id.

The granting of the writ itself is discretionary, because Tex. Loc. Gov’t Code Ann § 211.011 (c) (Vernon 1988), provides that upon application, the district court “may” issue the writ. However, section 211.011(e) provides that evidence may also be submitted at a hearing on the appeal. Should the district court not issue the writ, then the appellants would have the burden of providing a sufficient record at the hearing to determine the illegality of the Board’s decision. Cf. Barry Nussbaum v. City of Dallas, 948 S.W.2d 305, 307 (Tex.App.—Dallas 1996, no writ) (holding that under the similar Tex Log. Gov’t Code Ann § 214.0012(a), where appellant failed to request writ of certiorari and no evidence existed in record, presumption was that sufficient evidence existed to uphold board’s decision).

It does not appear to' be an abuse of discretion for the district court to have denied the writ of certiorari. However, the denial of the writ does not end this case. Tex. Loc. Gov’t Code Ann § 211.011(f) (Vernon 1988) prescribes the final decisions the trial court may reach: “The court may reverse or affirm, in whole or in part, or modify the decision that is appealed.” Id.

Jurisdiction of this Court is vested only in cases where a final judgment has been rendered, or where a statute specifically authorizes an interlocutory appeal. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985); see, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 1997 & Supp.1998). Until the district court renders a final judgment which disposes of all parties and all issues pending, this Court lacks jurisdiction to review the merits of this case. See, e.g., Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex.1982); Central Nat’l Ins. Co. of Omaha v. Glover, 856 S.W.2d 490, 492 (Tex.App.—Houston [1st Dist.] 1993, no writ).

Accordingly, we dismiss this appeal for want of jurisdiction.

MIRABAL, J., dissenting.