       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00668-CV


             John Hatchett, Sandra Hatchett, and JPH Capital LLP, Appellants

                                                  v.

                     West Travis County Public Utility Agency, Appellee


              FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-18-001654, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING



                                           OPINION


               John and Sandra Hatchett and JPH Capital LLP (collectively, the Hatchetts)

appeal the trial court’s order granting the plea to the jurisdiction filed by the West Travis County

Public Utility Agency (the PUA) and dismissing the Hatchetts’ petition. In its plea, the PUA

contended that the Hatchetts do not have standing and that it is immune from suit.               The

Hatchetts’ petition sought declarations invalidating the PUA’s “policies, rules, and regulations”

limiting density and impervious coverage on their property and granting them vested-rights

protection under Chapter 245 of the Local Government Code (LGC) due to a prior permit

application for water service. See Tex. Loc. Gov’t Code § 245.002(a) (requiring regulatory

agencies to consider approval of permit application solely on basis of regulations in effect when

original application for permit is filed). For the following reasons, we will affirm the trial court’s

order in part and reverse and remand the order in part.
                                          BACKGROUND1

                 The Hatchetts filed this lawsuit in April 2018. In their live (third amended)

petition, they alleged that they owned approximately 910 acres of land in Travis County (the

Property) for several years and in 2013 entered into an agreement with Masonwood Development,

Inc. that “set forth a takedown schedule with Masonwood purchasing and developing the

Property in phases.” When the petition was filed, “Masonwood ha[d] obtained title to a portion

of the Property” but the “Remainder Property” was “still owned by [the] Hatchett[s].”

                 In May 2013, Masonwood submitted to the PUA2 a “service extension request”

(SER), seeking water service for the Property. At the time, the PUA’s tariff “did not impose

lot impervious coverage [] restrictions as a condition of receiving service.” In November 2013,

the PUA issued Masonwood a “service availability letter” with proposed conditions for the

provision of water service for up to 1837 LUEs,3 to be memorialized in a future “non-standard

service agreement” (NSSA). Masonwood and the PUA executed the NSSA in March 2015.

The agreement provided for the PUA’s provision of retail water service to the development

equivalent to 700 LUEs.

                 In August 2016, the Hatchetts submitted to the PUA a second SER to obtain

service for the Remainder Property for the additional 1137 LUEs originally contemplated to

develop the Property. In March 2017, the PUA’s Board met, considered, and denied the second

SER “in its entirety.” In January 2018, the PUA’s Board amended its tariff, which amendments


       1
           We have derived the facts in this section from allegations in the Hatchetts’ live petition.
       2
        The PUA is a public utility agency and political subdivision created and operating under
Chapter 572 of the LGC. See Tex. Loc. Gov’t Code §§ 572.051, .052(c).
       3
           LUE stands for “living unit equivalent.”
                                                   2
“require” the Hatchetts “to comply with impervious coverage requirements of governmental

entities other than the []PUA” to obtain service to the Remainder Property.

               The Hatchetts sought the following declaratory judgments:            (1) the PUA’s

“policies, rules, and regulations limiting density and impervious coverage on the Property” are

“null and void” because they (a) “are unauthorized and violate the powers given to public utility

agencies” in Chapter 572 of the LGC, see id. § 572.058, and (b) “violate Article XVI, Section 59

of the Texas Constitution because these powers are reserved to conservation and reclamation

districts which are created in accordance with the Constitution and statute,” see Tex. Const.

art. XVI, § 59; and (2) the PUA’s “policies, rules, and regulations enacted after the first permit

[Masonwood’s SER] for the project on the Property was submitted to the []PUA cannot be

applied to the Property” under the vested-rights protections provided in Chapter 245 of the LGC,

see Tex. Loc. Gov’t Code § 245.002.


                                   STANDARD OF REVIEW

               A plea to the jurisdiction seeks to dismiss a cause of action regardless of whether

the claim has merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to

the jurisdiction is a dilatory plea that challenges the trial court’s power to adjudicate the subject

matter of the controversy. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a

party has alleged facts that affirmatively demonstrate a trial court’s subject-matter jurisdiction

and whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction

are questions of law that we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). A court deciding a plea to the jurisdiction is not required to

look solely to the pleadings but may consider evidence and must do so when necessary to resolve



                                                 3
the jurisdictional issues. Bland, 34 S.W.3d at 555. If the evidence raises a fact issue regarding

jurisdiction, the plea to the jurisdiction cannot be granted, and a factfinder must resolve the issue.

Miranda, 133 S.W.3d at 227–28.


                                           DISCUSSION

Vested rights in Chapter 245

               Under Chapter 245 of the LGC, once an application for the first permit required to

complete a property-development project is filed with the agency that regulates such use of the

property, the agency’s regulations applicable to the project are effectively “frozen” in their then-

current state and the agency is prohibited from subsequent regulatory changes to further restrict

the property’s use. Harper Park Two, LP v. City of Austin, 359 S.W.3d 247, 248–49 (Tex.

App.—Austin 2011, pet. denied); see Tex. Loc. Gov’t Code § 245.002(b) (“Each regulatory

agency shall consider the approval, disapproval, or conditional approval of an application for a

permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other

properly adopted requirements in effect at the time . . . the original application for the permit is

filed for review for any purpose . . . .”). Chapter 245 defines a “permit” as


       a license, certificate, approval, registration, consent, permit, contract or other
       agreement for construction related to, or provision of, service from a water or
       wastewater utility owned, operated, or controlled by a regulatory agency, or other
       form of authorization required by law, rule, regulation, order, or ordinance that a
       person must obtain to perform an action or initiate, continue, or complete a
       project for which the permit is sought.


Tex. Loc. Gov’t Code § 245.001(1). Upon filing of the first permit application, the project is

considered to have “vested rights” and “is not subject to intervening regulations or changes after




                                                  4
the vesting date.” City of San Antonio v. Rogers Shavano Ranch, Ltd., 383 S.W.3d 234, 245

(Tex. App.—San Antonio 2012, pet. denied); see Tex. Loc. Gov’t Code § 245.002(a).

               A “project” is defined as “an endeavor over which a regulatory agency exerts its

jurisdiction and for which one or more permits are required to initiate, continue, or complete the

endeavor.” Tex. Loc. Gov’t Code § 245.001(3). A “project,” for purposes of vested rights, is the

single endeavor reflected in the original application for the first permit in a series, rather than

individual components of the larger, original endeavor that could subsequently require separate

permits. Harper Park Two, 359 S.W.3d at 256. Rights vest in a particular project, not in the

property itself; therefore, subsequent changes in ownership of the property do not affect the

vested rights. City of San Antonio v. En Seguido, Ltd., 227 S.W.3d 237, 242–43 (Tex. App.—

San Antonio 2007, no pet.). “The obvious intent of chapter 245 is to prohibit land-use regulators

from changing the rules governing development projects ‘in the middle of the game.’” Harper

Park Two, 359 S.W.3d at 250.


Whether the Hatchetts have standing

               Standing requires: (1) a real controversy between the parties that (2) will be

actually determined by the judicial declaration sought. Austin Nursing Ctr., Inc. v. Lovato,

171 S.W.3d 845, 849 (Tex. 2005); Rogers Shavano Ranch, 383 S.W.3d at 242.                 Without

standing, a court lacks subject-matter jurisdiction to hear the case. Lovato, 171 S.W.3d at 849.

A determination of standing focuses on whether a party has a “justiciable interest” in the

outcome of the lawsuit, such as when it is personally aggrieved or has an enforceable right or

interest. Id. As a component of subject-matter jurisdiction, standing is a question of law reviewed

de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). To have standing,


                                                5
the pleader bears the burden of alleging facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause, Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443

(Tex. 1993), and when reviewing a standing ruling, we construe the petition in favor of the

pleader, Blue, 34 S.W.3d at 554–55.

               In its plea to the jurisdiction, the PUA argued that the Hatchetts do not have

standing because they: (1) are not “owners” of the Property by virtue of their 2013 agreement to

sell the Property to Masonwood in phases and (2) “have not sought utility service and have

not been denied utility service pursuant to the impervious-cover restrictions of which they

complain.” To determine whether the trial court properly dismissed the Hatchetts’ petition on

the basis of standing, we consider whether the Hatchetts alleged facts affirmatively demonstrating

their standing to bring each of their claims. See Alamo Heights Indep. Sch. Dist. v. Clark,

544 S.W.3d 755, 770 (Tex. 2018).

               The Hatchetts alleged the following facts relevant to standing: (1) their 2013

contract with Masonwood set forth a “takedown schedule” for Masonwood to “purchas[e] and

develop[] the Property in phases”; (2) Masonwood “has obtained title to a portion of the

Property”; (3) the Hatchetts still own the Remainder Property; and (4) the second SER “was

submitted by [John] Hatchett to the []PUA for 1,137 LUEs (the balance of the water demands

required for development of the Remainder Property).”

               The general rule is that an owner or part owner of the property at issue, among

other parties, has standing to sue for Chapter 245 vested-rights protection. See Rogers Shavano

Ranch, 383 S.W.3d at 245. It follows, therefore, that the Hatchetts—still owning a portion of the

Property, as alleged in their petition and which we must take as true in the absence of conclusive

controverting evidence—have standing with respect to their Chapter 245 claim.             See id.

                                                6
Notwithstanding this general rule, however, the PUA asserts that by virtue of the Hatchetts’ 2013

contract to sell the entire Property to Masonwood, albeit in phases, the Hatchetts lack standing

because of the doctrines of “equitable title” and “equitable conversion by contract.” See Pine

Forest Invs. Grp., LLC v. County of Bastrop, No. 03-16-00789-CV, 2018 WL 3077972, at *7–8

(Tex. App.—Austin June 22, 2018, pet. denied) (mem. op.) (describing equitable-title doctrine as

operating to allow purchaser under executory contract or “contract for deed” to compel legal title

when performance of certain conditions specified in contract have occurred); Parson v. Wolfe,

676 S.W.2d 689, 691 (Tex. App.—Amarillo 1984, no writ) (describing equitable-conversion

doctrine as “change in the nature of property by which, for certain purposes, realty is considered

as personalty or personalty is considered as realty, and the property is transmissible as so

considered”). However, because the dispute here is not between the Hatchetts and Masonwood,

and there is no allegation of an executory contract or contract for deed, neither doctrine is

applicable, and the PUA has cited no authority (nor have we found any) using either doctrine to

defeat a legal-title holder’s standing to bring an action concerning the property against a third

party. Accordingly, to the extent that the trial court’s ruling granting the PUA’s plea to the

jurisdiction was based on the Hatchetts’ lack of standing to bring their Chapter 245 claim, it was

in error.4

               We next consider whether the Hatchetts have standing to bring their UDJA

claims. The PUA contends that there is no real controversy between the parties that will be

actually determined by the declaration the Hatchetts seek—that the PUA’s policies, rules, and


        4
          Because we have determined that the Hatchetts have standing to bring their Chapter 245
claim by virtue of their ownership of the Remainder Property, we need not consider the PUA’s
argument that the Hatchetts do not have standing because they neither sought nor were denied
utility service.
                                                7
regulations limiting density and impervious coverage on the Property are void—because the

PUA has unfettered discretion to contract with, or refuse to contract with, the Hatchetts to

provide them water service. See Tex. Loc. Gov’t Code § 572.060 (“A public utility agency may

. . . under terms the agency’s board of directors considers appropriate, contract with private

entities for services[.]”). The PUA cites evidence in the record purporting to show that the

Property lies outside of the “CCN”5 area that it “is required by law” to serve and that it therefore

has absolute discretion whether to serve the Property, the exercise of which discretion cannot

form the basis of a justiciable controversy. See Tex. Water Code § 13.250(a) (“Except as provided

by this section or Section 13.2501 of this code, any retail public utility that possesses or is required

to possess a certificate of public convenience and necessity shall serve every consumer within its

certified area and shall render continuous and adequate service within the area or areas.”).

                In their pleadings, the Hatchetts allege that the Property is “located within the

[]PUA’s designated retail water service territory as established under the []PUA’s adopted

Tariff” and “within the []PUA’s designated Impact Fee Service Territory for water service.” The

PUA cites evidence attached to its plea in the form of minutes from a meeting of its Board in

which an individual6 “addressed the Board” and “pointed out that [the] Hatchett Tract is outside

of the CCN and the PUA has no requirements to serve [it].” Whether the Property is, in fact,

located outside of the CCN cannot be conclusively established on this record on the basis of the

evidence the PUA cites. See Miranda, 133 S.W.3d at 227 (explaining that plea to jurisdiction




        As used by the parties and in this opinion, “CCN” stands for a “certificate of public
        5

convenience and necessity.” See Tex. Water Code § 13.250(a).
        6
         The individual is identified in other portions of the clerk’s record as a member of the
public and area resident.
                                                   8
should only be granted if pleadings and jurisdictional evidence affirmatively and conclusively

negate existence of jurisdiction).

               However, even if the Property is not in the CCN, while the Board has wide

discretion to execute service contracts with private entities—and to do so “under terms [its]

board of directors considers appropriate,” see Tex. Loc. Gov’t Code § 572.060(2)—the scope of

the exercise of its discretion is limited to only, as relevant here, “the conservation, storage,

transportation, treatment, or distribution of water,” see id. § 572.058(a); see also Tex. Att’y Gen.

Op. No. KP-0178 (2018) (opining that PUA’s discretion to determine contractual conditions

upon which it will provide service is limited by section 572.058 and concluding that whether

PUA may require private entities to comply with impervious-coverage requirements as

contractual condition to receive service “necessarily requires a fact and evidence-based query”).

Furthermore, Chapter 245 expressly directs the PUA to consider the “approval, disapproval, or

conditional approval” of the Hatchetts’ permit application (i.e., SER) “solely on the basis of”

the regulations, rules, and “other properly adopted requirements” in effect when Masonwood

submitted its SER. See Tex. Loc. Gov’t Code § 245.002 (emphasis added). Because the

Hatchetts have alleged that the PUA—in promulgating its density and impervious-coverage

limitations and subjecting the Property to those restrictions as a condition of water service—has

acted beyond the scope of its authority, we conclude that they have a justiciable controversy

about whether the Board may condition permit approval accordingly. In other words, whether

the Board may consider factors that it is allegedly unauthorized to consider in determining

whether to provide service to the Hatchetts constitutes a justiciable controversy over which the

trial court had jurisdiction. Construing the Hatchetts’ pleadings in their favor, we conclude that

they have standing to bring their UDJA claims.

                                                 9
Whether the PUA’s immunity is waived under LGC Chapter 245

               The PUA next argued in its plea to the jurisdiction that it was entitled to dismissal

of the Hatchetts’ Chapter 245 claim because of an applicable exception to the general waiver of

governmental immunity provided in the chapter. See id. § 245.006(b) (“A political subdivision’s

immunity from suit is waived in regard to an action under this chapter.”); see also id. (a) (“This

chapter may be enforced only through mandamus or declaratory or injunctive relief.”). The PUA

contends that this case fits within the “utility connections” exception to the chapter’s express

waiver of immunity, see id. § 245.004(8) (“This chapter does not apply to . . . regulations for

utility connections.”), because the Remainder Property is “not currently on . . . an existing

pipeline” and would require extension of the PUA’s infrastructure. In other words, “to obtain

water or wastewater service from the []PUA, the Property must be connected to the existing

[]PUA infrastructure via a utility connection,” and the extension of the PUA’s infrastructure

constitutes a “utility connection.”

               No court has construed this exception, and neither the chapter nor the LGC

defines the term “utility connections.” We, therefore, give the term its common, ordinary meaning

unless the statute clearly indicates a different result. See Texas State Bd. of Exam’rs of Marriage

& Family Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017). To determine a

term’s common, ordinary meaning, we typically look first to its dictionary definitions and then

consider the term’s usage in other statutes, court decisions, and similar authorities. Id. at 35. Also,

we presume that every word in a statute has a purpose and should be given effect if reasonable

and possible. Texas Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000).

               The relevant dictionary meaning of the word “utility” is “a service provided by a

public utility.” Webster’s Third New International Dictionary 2525 (2002). In the context of

                                                  10
public utilities, such as the PUA here, “service” is defined as “conservation, transportation,

treatment, or distribution of water.” Tex. Loc. Gov’t Code § 572.061(a). Thus, the word “utility”

as used here means “the conservation, transportation, treatment, or distribution of water by a

public utility.” The relevant dictionary meaning of the word “connection” is “something that

connects,” i.e., a “coupling [or] link.” Webster’s Third New International Dictionary 481 (2002).

               Based on these definitions, we conclude that the term “connection” as used in

section 245.004(8) must mean something more than the “transportation of . . . water” because

water transport is already contemplated in the meaning of the term “utility.” Thus, the PUA’s

argument that the term “utility connection” means the physical extension of its pipes or other

infrastructure to transport water to the Property—when transportation of water is primarily what

a public utility agency does—is both a stretch and would render the word “connection”

essentially superfluous.   Rather, the more common-sense construction of the term “utility

connection” is the one advanced by the Hatchetts: the how or means by which a particular lot,

structure, or customer gets physically connected to the pipes or other infrastructure that transport

water to that end point—for instance, the coupling, link, or other device physically connecting

the customer to the water main.

               This construction aligns with Texas caselaw employing the term “utility

connections” in other contexts to refer to the means by which an individual structure is tied into

existing utility infrastructure. See Suleiman v. Texas Dep’t of Pub. Transp., No. 01-09-00099-

CV, 2010 WL 2431076, at *7 (Tex. App.—Houston [1st Dist.] June 17, 2010, no pet.) (mem.

op.); En Seguido, 227 S.W.3d at 240, 244; McMillin v. State Farm Lloyds, 180 S.W.3d 183, 206

(Tex. App.—Austin 2005, pet. denied); Hart v. City of Dallas, 565 S.W.2d 373, 375–76 (Tex.



                                                11
App.—Tyler 1978, no writ); City of Houston v. Lakewood Estates, Inc., 381 S.W.2d 697, 698–99

(Tex. App.—Houston 1964, no writ).

               Moreover, the definition of a “permit” in the LGC belies the PUA’s urged

construction of the term “utility connection” because the term “permit” already contemplates

and encompasses “agreements . . . for the provision of water service.” See Tex. Loc. Gov’t Code

§ 245.001(1). We have already determined that the “provision of water service” as relevant here

primarily involves the transportation of water. Thus, the provision excepting “regulations for

utility connections” from Chapter 245’s grant of vested-rights protections must mean something

more narrow than the provision of water service (i.e., transportation of water) because otherwise

the exception would swallow the rule.

               The PUA responds to this conundrum by asserting that the definition of “permit”

in the chapter applies only to an agreement to provide “standard” water service—that which does

not require the extension of its infrastructure—rather than “non-standard” water service—which

is what the Hatchetts requested in their SER and would require the addition of pipes and other

infrastructure. However, any person seeking a permit (i.e., an agreement to provide water

service) from the PUA would need somehow to be physically connected to the PUA’s system to

receive that service. If the PUA’s construction of the terms “permit” and “regulations for utility

connections” prevailed, then no person would ever be entitled to vested rights because the very

act of “connecting” to the PUA’s system would trigger the exception, rendering the existence of

vested rights illusory in the context of permits for water service from a public utility.

               We reject the PUA’s contention that the Hatchetts are challenging “regulations for

utility connections” and that the exception in LGC section 245.004(8) therefore applies. See id.

§ 245.004(8). Rather, the PUA’s immunity is explicitly waived under the general waiver in

                                                 12
Chapter 245. See id. § 245.006(b). To the extent that the trial court dismissed the Hatchetts’

vested-rights claim by determining that the PUA enjoys governmental immunity from this suit,

it erred.


Waiver of the PUA’s immunity under the UDJA

               The PUA contends that, even if the trial court had jurisdiction over the Hatchetts’

Chapter 245 claim, it did not have jurisdiction over the UDJA claims because they are “bare

statutory construction claims” for which the UDJA does not waive governmental immunity. See

McLane Co. v. Texas Alcoholic Beverage Comm’n, 514 S.W.3d 871, 876 (Tex. App.—Austin

2017, pet. denied). The PUA further contends that the UDJA will not support a challenge to

mere regulations or policies but is limited to challenges to statutes and regulations directly

promulgated thereunder. See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69,

76–77 (Tex. 2015). In response, the Hatchetts cite cases from two of our sister courts that have

permitted UDJA suits to proceed against State subdivisions where the plaintiffs did not challenge

any statutes but only policies of the subdivision. See Ackers v. City of Lubbock, 253 S.W.3d 770,

775–76 (Tex. App.—Amarillo 2007, pet. denied) (determining that plaintiff’s UDJA challenge

to constitutionality of city police department’s policy concerning taking photographs of minors

was not barred by governmental immunity); see also City of Crowley v. Ray, No. 02-09-00290-

CV, 2010 WL 1006278, at *5–7 (Tex. App.—Fort Worth Mar. 18, 2010, no pet.) (mem. op.)

(determining that plaintiff’s UDJA suit against city to determine his rights under federal

flood-plain maps was not barred by governmental immunity despite fact that plaintiff was not

challenging any statute or ordinance).




                                               13
               However, the UDJA waives sovereign immunity only in particular cases. Texas

Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam); see Texas Lottery

Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 633–35 (Tex. 2010) (noting that

UDJA waives immunity for suits challenging statutes that allege constitutional invalidation and

invalidation arising from statutory interpretation). Furthermore, this Court has recently held that,

regardless of how it is pleaded, when the nature of a claim is that an agency has acted without

statutory or other authority, such claim is a “quintessential ultra vires claim” and must be brought

against the individual state actors in their official capacities. EMCF Partners, LLC v. Travis

County, No. 03-15-00820-CV, 2017 WL 672457, at *6 (Tex. App.—Austin Feb. 15, 2017, no

pet.) (mem. op.) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009)). This is

so even if the court’s analysis of whether the complained-of acts were in fact unauthorized

requires some statutory construction, which mere fact “does not transform the claim from an

ultra vires claim into a type of challenge to a statute’s validity for which the supreme court has

found a waiver of immunity.” Id.

               Here, the Hatchetts have alleged that by creating “policies, rules, and regulations

limiting density and impervious coverage on the Property” the PUA has exceeded the authority

granted to it by Chapter 572 of the LGC and Article XVI, section 59 of the Texas Constitution.

This is in the same category as the “quintessential ultra vires claim” at issue in EMCF Partners,

wherein the plaintiff alleged that the county commissioners court acted “without statutory or

other authority” in promulgating amplified-sound restrictions as a requirement to obtain a permit

to hold a music festival. See id. at *6. We conclude that the facts alleged and claims asserted

here are ultra vires as were those at issue in EMCF Partners and, therefore, follow our precedent

to similarly conclude that the UDJA does not waive the PUA’s immunity. See id. Accordingly,

                                                14
the trial court properly granted the PUA’s plea to the jurisdiction as to the Hatchetts’

UDJA claims.7


                                        CONCLUSION

               We affirm the trial court’s dismissal of the Hatchetts’ UDJA claims. We reverse

the trial court’s dismissal of the Hatchetts’ Chapter 245 vested-rights claim and remand that

cause for further proceedings consistent with this opinion.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed in Part; Reversed and Remanded in Part

Filed: March 11, 2020




       7
          The trial court’s order dismissed the Hatchetts’ third amended petition without prejudice
and granted them an opportunity to file an amended petition to re-plead a viable ultra vires claim
within thirty days. The Hatchetts filed a fourth amended petition within that thirty-day period
alleging, for the first time, ultra vires claims against certain individual employees of the PUA in
their official capacities. Accordingly, our affirmance of the trial court’s order dismissing the
Hatchetts’ third amended petition does not preclude the Hatchetts from prosecuting their new
ultra vires claims.
                                                15
