In Green Tree Servicing, L.L.C. v. Woods, 388 S.W.3d 785, 792 (Tex. App.--Houston 1st Dist. 2012, no pet.), the Houston appellate court addressed the specific issue "whether it is error for a trial court to dispose of a case with prejudice based on a challenge to subject-matter jurisdiction in a no-evidence motion for summary judgment."
After analysis of the reasons for placement of the shifting burden of proof in a plea to the jurisdiction and the conversion of this burden-placement in a no-evidence motion for summary judgment, as well as a discussion of the dangers and pitfalls in this alteration through the no evidence vehicle, the Green Tree Servicing court ultimately held a trial court's subject matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment. Id. at 792-94.
In Green Tree Servicing, the court reasoned that allowing subject-matter jurisdiction challenges in no-evidence motions conflicts with the safeguards and presumptions that protect the trial court's jurisdiction, would deprive the trial court of jurisdiction without a showing that the court actually lacks jurisdiction, and would preclude the non-movant from removing any impediments to jurisdiction and then returning to court. Id.
The Green Tree Servicing court was particularly concerned that allowing defendants to challenge subject matter jurisdiction by way of no-evidence motion would nullify the principles and directives established by the Texas Supreme Court in Miranda, as it would force the non-movant to "put on their case simply to establish jurisdiction" and would eliminate any burden on the movant other than to identify the specific ground he believes to be lacking evidentiary support. Id. at 793-94.