      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00711-CV



                           Dr. Eric A. VanderWerff, D.C., Appellant

                                                 v.

                      Texas Board of Chiropractic Examiners, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GN-11-002998, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Dr. Eric A. VanderWerff, D.C., appeals a final judgment of the trial court granting

the Texas Board of Chiropractic Examiners’ plea to the jurisdiction and dismissing his lawsuit with

prejudice. For the following reasons, we will affirm the trial court’s judgment.


                                        BACKGROUND

               Appellant, a licensed chiropractor, appeared before the Board for a contested-case

hearing after a complaint was filed with the Board accusing him of providing excessive and

unnecessary treatments to a patient. After the hearing, the Board issued an order reversing several

key findings and conclusions of the administrative law judge and, instead, determined that appellant

violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed against
him a $1,500 administrative penalty.1 See Tex. Occ. Code § 201.502(a)(1), (7) (Board may discipline

chiropractor for violating Board rules or engaging in grossly unprofessional conduct); 22 Tex.

Admin. Code § 75.1(a) (Tex. Bd. of Chiropractic Exam’rs, Grossly Unprofessional Conduct) (grossly

unprofessional conduct includes “exploiting patients through the fraudulent use of chiropractic

services . . . when the services rendered . . . are clearly excessive to the justified needs of the patient

as determined by accepted standards of the chiropractic profession”). Appellant filed an untimely

motion for rehearing to dispute the Board’s order; accordingly, the Board’s order became final and

was not appealable.2 See Tex. Gov’t Code §§ 2001.145 (timely motion for rehearing is prerequisite

to appeal in contested case), .146 (motion for rehearing must be filed no later than 20th day after

party is notified of order).

                Unable to directly appeal the Board’s final order, appellant filed a lawsuit against

the Board seeking declaratory and injunctive relief. Specifically, he sought a temporary injunction

prohibiting the Board from enforcing its final order or “prosecuting any other chiropractor

applying the rules and laws in the manner applied in this case.” Additionally, he sought declarations

determining whether the Board’s “interpretation” of certain statutes and regulations are “constitutional




        1
           Specifically, the Board determined that an earlier disposition by the Texas Workers’
Compensation Commission (now known as the Texas Department of Insurance, Division of
Workers’ Compensation) denying appellant reimbursement for services he provided to a particular
patient on the basis that they were not medically necessary was sufficient, without more, to constitute
“grossly unprofessional conduct.” See 22 Tex. Admin. Code § 75.1(a) (Tex. Bd. of Chiropractic
Exam’rs, Grossly Unprofessional Conduct).
        2
         Appellant concedes that, because he did not exhaust his administrative remedies by filing
a timely motion for rehearing, he is not entitled to judicial review of the Board’s order via direct
appeal. See Tex. Gov’t Code §§ 2001.145, .171.

                                                    2
or within the scope of authority conferred” on the Board by the legislature. The Board filed a plea

to the jurisdiction, which the trial court granted, dismissing appellant’s lawsuit with prejudice.


                                           DISCUSSION

               We review a district court’s ruling on a plea to the jurisdiction de novo. Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In determining whether jurisdiction exists,

we accept the allegations in the pleadings as true and construe them in favor of the pleader. Texas

Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

               Additionally, sovereign immunity protects the State of Texas, its agencies, and its

officials from lawsuits unless the legislature expressly gives its consent to the suit. Texas Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Absent the State’s consent to suit, a trial court

lacks subject-matter jurisdiction. Id. Appellant argues that the trial court erred in granting the

Board’s plea to the jurisdiction because two statutes waived the Board’s immunity from suit: section

2001.038 of the Administrative Procedure Act (APA) and the Uniform Declaratory Judgments Act

(UDJA). Tex. Gov’t Code § 2001.038; Tex. Civ. Prac. & Rem. Code § 37.001 et seq.

               Under section 2001.038 of the APA, a plaintiff may sue a state agency to determine

the “validity or applicability of a rule” when he alleges that “the rule or its threatened application

interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the

plaintiff.” Tex. Gov’t Code § 2001.038(a); Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d

105, 123 (Tex. App.—Austin 2007, no pet.) (section 2001.038 is grant of original jurisdiction

and waives sovereign immunity). Appellant argues that, while he is not complaining of the Board’s

final order (and the Board’s interpretation and application of the challenged rules therein), he is

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complaining about the Board’s “interpretation and application” of the challenged rules “going

forward.” It is this prospective application of the rules, rather than any past or present application

of them, that appellant alleges establishes jurisdiction under section 2001.038.

                However, the mere possibility that the Board might apply the challenged rules in

the same manner to appellant at some point in the future is not sufficient to raise a justiciable

controversy. See Texas Logos, 241 S.W.3d at 123 (appellant’s seeking to challenge validity of agency

rules when justiciable controversy had already been addressed through administrative procedures

would amount to “mere abstract, advisory opinion”); Friends of Canyon Lake, Inc. v. Guadalupe-

Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.—Austin 2002, pet. denied) (district court lacked

subject-matter jurisdiction over section 2001.038 rule challenge where underlying controversy had

been extinguished by plaintiff’s failure to exhaust administrative remedies). Beyond the Board’s

actions and interpretation of the challenged rules in the underlying contested case, which is not

before us on appeal, appellant did not plead any actions by the Board that constitute an actual threat

to apply the rules again in such manner as to potentially impair or interfere with his legal rights. For

instance, he did not plead that the Board is currently pursuing any other disciplinary actions against

him or even that any other complaints against him have been filed.3 Instead, appellant’s proffered

future scenario is based upon hypothetical, speculative facts rather than a justiciable controversy, and

litigants may not employ declaratory-judgment actions to obtain impermissible advisory opinions

seeking to interpret statutes or agency rules. See Vista Health Plan, Inc. v. Texas Health & Human

Servs. Comm’n, No. 03-03-00216-CV, 2004 WL 1114551, at *6 (Tex. App.—Austin May 20, 2004,


       3
          Appellant’s mere assertion that he has “failed to prevail in dozens of cases resolving
medical fee disputes” is not sufficient to support the speculation that the Board will utilize those
unsuccessful fee disputes as support for future disciplinary actions.

                                                   4
pet. denied) (mem. op.) (to constitute justiciable controversy, there must be real and substantial

controversy involving genuine conflict of tangible interest and not merely theoretical dispute, and

declaratory judgment is only appropriate if judgment will determine controversy between parties);

Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.—Austin

2002, pet. denied) (declaratory judgment appropriate only when justiciable controversy exists, and

court may not pass upon hypothetical or contingent situations, as such judgment would be advisory

opinion). Accordingly, APA section 2001.038 did not confer on the trial court jurisdiction over

appellant’s claims.

               Regarding whether jurisdiction exists under the UDJA, applicable case law is

clear that the act does not create or augment a trial court’s subject-matter jurisdiction but merely

provides a remedy where subject-matter jurisdiction already exists. Texas Logos, 241 S.W.3d at 115.

Furthermore, a UDJA action is deemed to be barred jurisdictionally as “redundant” of a pending

APA section 2001.038 claim to the extent the official actions from which relief is sought consist of

the agency’s promulgation or application of a rule. Texas Dep’t of State Health Servs. v. Balquinta,

429 S.W.3d 726, 747 (Tex. App—Austin 2014, pet. filed); see SWEPI LP v. Railroad Comm’n of

Tex., 314 S.W.3d 253, 269-70 (Tex. App.—Austin 2010, pet. denied) (declaratory-judgment claim

will not lie when it is redundant of parallel administrative appeal and remedy under APA is same as

that provided under UDJA—reversal of agency’s final order). The only Board action about which

appellant complains is its alleged threatened future application of certain rules.4 Therefore, his UDJA


       4
           Although appellant also challenges the Board’s “interpretation” of certain statutes as
unconstitutional, the UDJA does not waive sovereign immunity for an agency’s actions taken under
a statute but only for declaratory-judgment actions challenging the validity of a statute. Texas Dep’t
of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011). Appellant’s petition does not challenge the

                                                  5
claims are entirely redundant of his APA section 2001.038 claims and, accordingly, the UDJA did

not confer jurisdiction on the trial court. We overrule appellant’s first issue.

               Appellant’s second issue asserts that, alternatively, the district court had jurisdiction

over this cause of action—independently of a direct appeal—because the Board “exceeded the

scope of its statutory authority” in applying its rules to find that appellant had engaged in grossly

unprofessional conduct. In other words, appellant contends that he was entitled to collaterally attack

the Board’s order on the basis of the well-recognized exception to the general rule that an agency’s

final order is immune from collateral attack: when an agency takes an action that is in excess of its

statutory powers. See Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 784-85 (Tex.

1978) (injunctive relief is appropriate when agency exercises authority beyond that statutorily

conferred on it, and therefore injunction prohibiting Commissioner of Education from conducting

hearing or passing upon questions concerning school district’s creation was properly granted because

Commissioner did not have statutory authority to review final order of State Board of Education);

Chocolate Bayou Water Co. & Sand Supply v. Texas Natural Res. Conservation Comm’n, 124

S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (collateral attacks upon agency order may

be maintained on sole ground that order is void either because it shows on its face that agency

exceeded its authority or that it was procured by extrinsic fraud). However, apart from the Board’s

interpretation and application of certain statutes and rules in the context of his contested case,

appellant’s petition does not allege any actions taken by the Board that were outside of its statutory




validity of any statutes. Additionally, the UDJA does not waive sovereign immunity when a plaintiff
seeks a declaration of his rights under a statute. Id. at 621.

                                                  6
authority. See Friends of Canyon Lake, 96 S.W.3d at 527-28 (where appellant was merely challenging

action of agency—issuing water permits—that agency was permitted under statute to take, such

allegation did not implicate collateral-attack exception applying to circumstances where agency is

alleged to have acted outside scope of statutory authority).

                Here, the Board was fully acting within its statutory authority by participating in the

contested-case procedures and issuing an order reversing some of the findings and conclusions of

the administrative law judge. See Tex. Gov’t Code § 2001.058(e) (state agency may change finding

of fact or conclusion of law made by administrative law judge if it determines that judge did not

properly apply or interpret applicable law, rules, policies, or prior administrative decisions). Although

appellant frames his second issue in terms of whether the Board has misinterpreted or misapplied

certain statutes and rules and has thus exceeded its statutory authority, it is clear that this claim of

the Board “exceeding its authority” arises only in the context of his contested case; that controversy

has ceased to exist and is no longer subject to an attempt to obtain a different judgment with respect

to the same controversy. See Vista Health, 2004 WL 1114551, at *7. Accordingly, we overrule

appellant’s second issue.


                                           CONCLUSION

                The trial court did not err in granting appellee’s plea to the jurisdiction and,

accordingly, dismissing appellant’s lawsuit with prejudice. Therefore, we affirm the trial court’s

final judgment.




                                                   7
                                             _____________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: December 18, 2014




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