Opinion By Justice RICHTER.
This is an appeal from an order out of the 134th Judicial District Court dismissing Alfred Lee Stone's petition for writ of habeas corpus. Stone filed his petition against Becky Gregory, former State Judge for the 283rd Judicial District Court, after she failed to grant his motion to vacate a 1991 felony judgment out of her court and seventy-year sentence for burglary of a building. In the petition, Stone sought release from "all prison confinement" and alleged Gregory erred in failing to grant his motion. Gregory timely answered the petition and moved to have Stone's petition dismissed because Stone failed to show in his petition that the court had subject matter jurisdiction. In two issues, Stone now complains the trial court erred in dismissing his petition because Gregory's motion was "an improper motion attacking the sufficiency of his petition" and he should have been allowed an opportunity to amend. Finding no error, we affirm the trial court's dismissal order.
We affirmed the judgment in 1993. See Stone v. State, No. 05-91-01392-CR, 1993 WL 147086 (Tex.App.-Dallas April 26, 1993, pet. ref'd) (not designated for publication).
"Subject matter jurisdiction" concerns the power of a court to determine a case. See Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The burden of showing a court has subject matter jurisdiction lies with the party asserting a cause of action and is met by alleging in the pleadings facts that affirmatively demonstrate the trial court's authority to hear the case. Id.
A party defending a cause of action may challenge the subject matter jurisdiction of the court through a plea to the jurisdiction or a motion to dismiss. Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Patton v. Jones, 212 S.W.3d 541, 545 (Tex.App.-Austin 2006, pet. denied). We review a trial court's ruling on a plea to the jurisdiction or a motion to dismiss for lack of subject matter jurisdiction de novo, construing the pleadings in the suing party's favor and looking to his intent. Miranda, 133 S.W.3d at 226; Patton, 212 S.W.3d at 545. We will affirm an order granting a plea to the jurisdiction and dismissing the suit if the pleadings affirmatively negate the existence of jurisdiction. Miranda, 133 S.W.3d at 227. On the other hand, if the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and we affirm an order granting a plea and dismissing the suit only if the suing party was first afforded an opportunity to amend its pleadings but failed to do so. Id. at 226-27. Under section 11.07 of the Texas Code of Criminal Procedure, a petition for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death must be filed in the convicting court. Tex. Code Crim. Proc. Ann. Art. 11.07, § 3(b) (Vernon Supp. 2007).
A party may also challenge the subject matter jurisdiction of a court through "other procedural vehicles" such as a motion for summary judgment. Bland, 34 S.W.3d at 554.
Applying the above standards to the facts before us, we conclude the trial court did not err in granting Gregory's motion to dismiss. Because Stone sought in his petition relief from his felony judgment and seventy-year sentence out of the 283rd Judicial District Court, he should have filed the petition in that court instead of the court below. See id. By seeking relief from his felony judgment and non-death sentence penalty in a court other than the convicting court, Stone affirmatively negated the existence of jurisdiction in the court below and dismissal of his petition was proper. See Miranda, 133 S.W.3d at 227. In reaching this conclusion, we necessarily reject Stone's arguments that Gregory's motion to dismiss was "an improper motion attacking the sufficiency of his petition" and that he should have been afforded an opportunity to amend his petition. As stated, a dismissal motion is a "proper vehicle" for challenging a trial court's subject matter jurisdiction, and a trial court need not afford a suing party an opportunity to amend his pleadings where, as here, a jurisdictional defect is apparent from the face of the pleadings rendering it impossible to confer jurisdiction on the court below. See id.; Patton, 212 S.W.3d at 545. We resolve Stone's issues against him.
We affirm the trial court's dismissal order.