                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00002-CV


       THE STATE OF TEXAS AND JERRY PATTERSON AS COMMISSIONER
          OF THE GENERAL LAND OFFICE OF THE STATE OF TEXAS,
            AND COMMISSIONER GEORGE P. BUSH, APPELLANTS

                                            V.

        JIMMY GLEN RIEMER, RICHARD COON, JR., JUNE MEETZE COON
        TRUST, HAP JOHNSON REALTY CO., LLC, AND W.R. EDWARDS, JR.
           D/B/A W.R. EDWARDS, JR. OIL AND GAS, ET AL., APPELLEES

                           On Appeal from the 84th District Court
                                 Hutchinson County, Texas
               Trial Court No. 30,441-B, Honorable Curt Brancheau, Presiding

                                     March 7, 2019

                                       OPINION
                    Before CAMPBELL and PIRTLE and PARKER, JJ.


       In this interlocutory appeal, appellants the State of Texas and Jerry Patterson, as

Commissioner of the General Land Office of the State of Texas, and Commissioner

George P. Bush (collectively, “the State”), challenge the trial court’s order denying their
plea to the jurisdiction.1 In the trial court, appellants are defendants in the suit brought by

appellees Jimmy Glen Riemer, et al.,2 who allege they are the owners of surface and

minerals interests in lands along a stretch of the Canadian River in Hutchinson County.

We will affirm the court’s order.


                                        Background


       The litigation began in 1993 when the State sued Jimmy Glen Riemer’s father,

Hugo A. Riemer, Jr., alleging he was trespassing on State land in sections 30 and 31,

Block 47, H.& T.C.R.R. Survey, Hutchinson County. Riemer asserted counterclaims and

others joined the litigation.3


       In February 2017, appellees filed their Fourteenth Amended Counterclaim and

Twelfth Amended Third-Party Petition. According to appellees their “claims are limited to

takings, ultra vires, and a declaratory judgment that the river is non-navigable.” Some

three months later, in May 2017, the State filed a plea to the jurisdiction addressed to

appellees’ February 2017 pleading. Also that month, the trial court granted a partial



       1  See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2018)
(permitting the interlocutory appeal of an order granting or denying a governmental unit’s
plea to the jurisdiction); Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex.
2007) (holding “a state official may seek interlocutory appellate review from the denial of
a jurisdictional plea”).
       2 Appellees are Jimmy Glen Riemer, Richard Coon, Jr., June Meetze Coon Trust,
Hap Johnson Realty Co., LLC, W.R. Edwards, Jr. d/b/a W.R. Edwards, Jr. Oil and Gas,
Billy Paul Riemer, Scharron Ann Riemer, Jimmy Greene, Trustee, Randall Black, Joan B.
Vernon, Linda Lamar, and Theresa Gail Elliott.
       3For additional background information see State v. Riemer, 94 S.W.3d 103 (Tex.
App.—Amarillo 2002, no pet.); Riemer v. State, 342 S.W.3d 809 (Tex. App.—Amarillo
2011), rev’d, 392 S.W.3d 635 (Tex. 2013); Riemer v. State, 452 S.W.3d 491 (Tex. App.—
Amarillo 2014, pet denied).

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summary judgment in favor of appellees, declaring the portion of the Canadian River west

of the Borger-Stinnett highway4 is non-navigable.


       After a November 2017 hearing, the trial court signed an order in December 2017,

by which it granted, over the State’s objection, appellees’ motion to sever the claims

asserted by their February 2017 pleading and that pertain to land lying east of the Sanford

Dam and west of the Borger-Stinnett highway into a separate cause, leaving in the original

cause appellees’ claims pertaining to land lying east of the Borger-Stinnett highway. At

the same time, in the severed cause, the court signed an order denying the State’s plea

to the jurisdiction. That order denying the State’s jurisdictional plea is the subject of this

interlocutory appeal. By virtue of the severance, the course of the river subject to this

interlocutory appeal stretches east from the Sanford Dam, which impounds Lake

Meredith, to the Borger-Stinnett highway.


                                            Analysis


       The State and its agencies are generally immune from suit in the absence of an

express waiver of its sovereign immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust,

354 S.W.3d 384, 388 (Tex. 2011). Immunity from suit deprives a trial court of subject

matter jurisdiction in lawsuits in which the State has been sued without its consent. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). We review a trial

court’s ruling on a plea to the jurisdiction de novo. City of Elsa v. Gonzalez, 325 S.W.3d




       4 In its order, the trial court took judicial notice of “the location of the highway bridge
traversing the Canadian River between Stinnett and Borger, Texas.” We take judicial
notice that State Highway 136 is the highway between Stinnett and Borger and crosses
the Canadian River.

                                                3
622, 625 (Tex. 2010). In performing this review, we do not look to the merits of the case,

but consider only the pleadings and evidence relevant to the jurisdictional inquiry.

Miranda, 133 S.W.3d at 227; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.

2002).


         Texas law provides “sovereign immunity bars [Uniform Declaratory Judgment Act

(UDJA)] actions against the state and its political subdivisions absent a legislative waiver.”

Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam); Sawyer

Trust, 354 S.W.3d at 388-89 (holding absent State’s consent sovereign immunity bars

trespass to try title suit against State even if brought as action for declaratory judgment

under UDJA) (citing State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961)). While the

governmental entity is immune from such suits absent consent, it is “[v]ery likely” the

same claim could be brought against the appropriate state official in his official capacity

for nondiscretionary acts unauthorized by law under the ultra vires exception to immunity.

Sefzik, 355 S.W.3d at 621 (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73

(Tex. 2009)). “An ultra vires suit is one to require a state official to comply with statutory

or constitutional provisions.” Tex. Lottery Comm’n v. First State Bank of DeQueen, 325

S.W.3d 628, 633 (Tex. 2010). Immunity does not bar an ultra vires claim for prospective

injunctive and declaratory relief against individual governmental officials acting in their

official capacities, Heinrich, 284 S.W.3d at 372, although a governmental entity cloaked

with sovereign immunity remains immune from suit. Texas Dept. of Ins. v. Reconveyance

Services, Inc., 306 S.W.3d 256, 258 (Tex. 2010). To come within the ultra vires exception

to immunity, “a suit must not complain of a government officer’s exercise of discretion,

but rather must allege, and ultimately prove, that the officer acted without legal authority


                                              4
or failed to perform a purely ministerial act.” Heinrich, 284 S.W.3d at 372. An official acts

without legal authority “if he exceeds the bounds of his granted authority or if his acts

conflict with the law itself.” Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d

154, 158 (Tex. 2016). An ultra vires suit does not attempt to control the State but seeks

to reassert State control. Heinrich, 284 S.W.3d at 372.


Law of the Case Doctrine


       In support of its claim that the trial court erred by denying its plea to the jurisdiction,

the State first argues that in State v. Riemer, 94 S.W.3d 103 (Tex. App.—Amarillo 2002,

no pet.), we held appellees could proceed against the State with their constitutional

takings claims and for trespass to the surface of sections 30 and 31, but otherwise all of

their claims alleged against the State and the land commissioner were barred by

sovereign immunity. This holding, they argue, is law of the case and therefore precludes

appellees from asserting their ultra vires claim against the land commissioner.


       Under the law of the case doctrine questions of law decided on appeal to a court

of last resort will govern the case throughout its subsequent stages. Hudson v. Wakefield,

711 S.W.2d 628, 630 (Tex. 1986). Functionally, the doctrine narrows the issues in

subsequent stages of the litigation thus achieving uniformity of decision and judicial

economy and efficiency. Id. The doctrine is rooted in public policy and is “aimed at putting

an end to litigation.” Id. But it “does not necessarily apply when either the issues or the

facts presented at successive appeals are not substantially the same as those involved

in the first trial.” Id. (citations omitted). If pleadings have been amended, “it may be that

the issues or facts have sufficiently changed so that the law of the case no longer applies.”



                                                5
Id. (citations omitted). Its application “lies within the discretion of the court, depending on

the particular circumstances surrounding that case.” Briscoe v. Goodmark Corp., 102

S.W.3d 714, 716 (Tex. 2003). The doctrine does not confer or limit subject matter

jurisdiction and is not a limitation on the power of a court to act. Entergy Corp. v. Jenkins,

469 S.W.3d 330, 336-37 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).


       The jurisdictional issues we addressed in our 2002 opinion are not the same as

those now presented. It was years after 2002 when appellees first alleged the river was

not navigable. The pleadings we considered in our 2002 opinion did not contain an

allegation that then-land commissioner David Dewhurst acted ultra vires by claiming title

to the riverbed for the State when the river was non-navigable. Moreover, were we to rely

only on our 2002 opinion to resolve this appeal, under the amended pleadings, we would

fail to give effect to the Texas Supreme Court’s clarification of our state’s law in Heinrich.

As the court noted in Sefzik, 355 S.W.3d at 621, “Heinrich clarified an area of the law that

had been unclear, namely, the intersection between the doctrine of sovereign immunity

and the ultra vires exception to it.” And, more specifically, we would fail to take into

account the court’s application of Heinrich and Lain in Sawyer Trust, in which the court

addressed the availability of an ultra vires claim in the context of a dispute over

navigability. 354 S.W.3d at 393 (“If a government official acting in his official capacity

possesses property without authority, then possession is not legally that of the sovereign.

Under such circumstances, a defendant official’s claim that title or possession is on behalf

of the State will not bar the suit”) (citation omitted); see id., 354 S.W.3d 384, 395

(Jefferson, C.J., concurring) (“In Lain, we made clear that a government actor is not

immune from a trespass-to-try-title suit, and we described how to bring such a claim”).


                                              6
       The law of the case doctrine does not foreclose a court’s exercise of its subject

matter jurisdiction where it otherwise exists. Jenkins, 469 S.W.3d at 337. For the reasons

stated, we will not apply the doctrine so as to deprive the trial court of jurisdiction to

consider appellees’ ultra vires claim against Commissioner Bush. The State’s first issue

is overruled.


Declaration of Non-navigability


       The State next argues appellees’ requests for declaratory relief are barred by

sovereign immunity. The specific complaint seems to be that the trial court lacked subject

matter jurisdiction to declare the Canadian River, from the Borger-Stinnett highway to the

Sanford Dam, non-navigable. Appellees allege in their live petition the stretch of disputed

land “between the Borger-Stinnett Highway and the Sanford Dam does not contain a

navigable stream. Therefore, the Government has no interest in that property and has

no business claiming any character of rights in that property.”


       The court in Sawyer Trust addressed a similar situation. There the Trust claimed

the Salt Fork of the Red River, which crossed land owned by the Trust, was not navigable

and hence its bed was not State property.5 The State argued any attempt to adjudicate

its title to the riverbed was barred by sovereign immunity. 354 S.W.3d at 387. The court

agreed, holding sovereign immunity prevented the Trust’s attempt to challenge the State’s

land title. 354 S.W.3d at 389-90. But in response to the Trust’s request to remand the

case so that it might join state actors and pursue an ultra vires claim, the court noted “in



       5 The court noted that, for purposes of its opinion, it was assuming the correctness
of the parties’ position that their respective rights to sand and gravel in the bed of the river
turned on the issue of navigability. 354 S.W.3d at 386 n.1.

                                               7
some instances a party may maintain a trespass to try title action against governmental

officials acting in their official capacities.” Id. at 393 (citing Lain, 394 S.W.2d at 581); cf.

id. at 395 (Jefferson, C.J., concurring) (noting State ministerial officers do not have

discretion to determine navigability; it is a question for judicial resolution only). Because

the question of navigability determined ownership of the riverbed as it crossed the Trust

property, the court found the process and principles announced in Lain, 349 S.W.2d at

582, should apply. 354 S.W.3d at 394. Thus, held the court, the Trust should have an

opportunity to proceed “against the government actors laying claim to the streambed.” Id.


       We find the same true here. The State has not shown us, and we do not find, a

reason why the procedural device of a declaratory judgment could not be used to

adjudicate appellees’ ultra vires claim against Commissioner Bush. See Sawyer Trust,

354 S.W.3d at 394; Lain, 349 S.W.2d at 581 (“One who takes possession of another’s

land without legal right is no less a trespasser because he is a state official or employee,

and the owner should not be required to obtain legislative consent to institute a suit to

oust him simply because he asserts a good faith but overzealous claim that title or right

of possession is in the state and that he is acting for and on behalf of the state”).


       The State’s second issue is overruled.


Improper Remedy and Insufficient Pleadings


       The State’s argument in support of its third issue consists of two parts: (1) the trial

court erred by failing to sustain its plea to the jurisdiction as to appellees’ ultra vires claim

against Commissioner Bush because the remedy sought, the recovery of lands, is beyond




                                               8
the trial court’s subject matter jurisdiction; and (2) appellees did not allege any ultra vires

conduct by a state actor thus depriving the trial court of subject matter jurisdiction.


       Nature of Remedy


       Appellees allege that the land commissioner acted ultra vires in asserting

“possession rights without proper authority” to the disputed riverbed because it does not

contain a navigable stream. As a result of this ultra vires act, appellees further allege

they “are entitled to seek . . . recovery of such lands.”


       In Sawyer Trust, the court stated, “A suit to recover possession of property

unlawfully claimed by a state official is essentially a suit to compel a state official to act

within the officer’s statutory or constitutional authority, and the remedy of compelling

return of land illegally held is prospective in nature.” 354 S.W.3d at 393. It is unclear to

us that the “recovery” of lands to which appellees’ pleadings refer differs from the

prospective “remedy of compelling return of land illegally held” the court there described.


       In Lain the court explained the process and principles applicable to claims such as

that appellees assert:


       [W]hen officials of the state are the only defendants, or the only remaining
       defendants, and they file a plea to the jurisdiction based on sovereign
       immunity, it is the duty of the court to hear evidence on the issue of title and
       right of possession and to delay action on the plea until the evidence is in.
       If the plaintiff fails to establish his title and right of possession, a take nothing
       judgment should be entered against him as in other trespass to try title
       cases. If the evidence establishes superior title and right of possession in
       the sovereign, the officials are rightfully in possession of the sovereign’s
       land as agents of the sovereign and their plea to the jurisdiction based on
       sovereign immunity should be sustained. If, on the other hand, the evidence
       establishes superior title and right of possession in the plaintiff, possession
       by officials of the sovereign is wrongful and the plaintiff is entitled to relief.
       In that event the plea to the jurisdiction based on sovereign immunity should

                                                9
       be overruled and appropriate relief should be awarded against those in
       possession.

Lain, 349 S.W.2d at 582; see also Sawyer Trust, 354 S.W.3d at 394.


       Like the circumstance existing in Sawyer Trust, appellees contend the rightfulness

of Commissioner Bush’s claim of State-owned title to the disputed riverbed depends on

whether the Canadian River is navigable. Lain and Sawyer Trust permit claimants to

seek “appropriate relief” against State actors.       Considering their pleadings liberally,

appellees’ request for relief, under their ultra vires claim, seeks relief consistent with that

authorized by Lain and Sawyer Trust. See Heinrich, 284 S.W.3d at 377 (concluding, after

considering the nature of liability sought to be imposed and construing the plaintiff’s

pleadings liberally, plaintiff sued government actors in their official capacities and her

claims were not automatically barred by immunity).


       Allegation of Ultra Vires Conduct


       The thrust of the State’s argument here is that appellees have not alleged conduct

by Commissioner Bush that is ultra vires. The State emphasizes the duties imposed by

statute on the General Land Office with regard to state-owned lands and its oil and gas

interests. The argument does not expressly refer to a determination of a stream’s

navigability, but we infer the State’s position to be that, whether correct or not, a

commissioner’s determination of navigability falls within the scope of his official discretion

and therefore cannot be ultra vires. In its argument, the State relies in part on Hall v.

McRaven, 508 S.W.3d 232 (Tex. 2017).


       The court in Sawyer Trust noted that the Parks and Wildlife Department “has the

authority to make determinations on behalf of the State as to navigability of streams and

                                              10
to exercise the State’s rights over navigable streambeds.”             354 S.W.3d at 394.

“Nevertheless,” the court continued, “its pronouncement that a stream is navigable is not

conclusive of the question.      This Court established long ago that the question of

navigability is, at bottom, a judicial one.” Id. (citing State v. Bradford, 121 Tex. 515, 50

S.W.2d 1065, 1070 (1932)). From Sawyer Trust, we must conclude that an ultra vires

claim based on Commissioner Bush’s possession of the disputed riverbed in Hutchinson

County is not precluded merely because the commissioner had authority to make the

determination of its navigability on behalf of the General Land Office. We do not read the

court’s opinions in McRaven, or Houston Belt to call for a contrary conclusion. See

McRaven, 508 S.W.3d at 242 n.3; Houston Belt, 487 S.W.3d at 162 n.6 (both citing

Sawyer Trust); Bush v. Lone Oak Club, LLC, 546 S.W.3d 766, 774-75 (Tex. App.—

Houston [1st Dist.] 2018, pet. filed) (expressing opinion McRaven did not overrule Lain).


       Disagreeing with both aspects of the State’s argument, we overrule its third issue.


Equitable Relief


       In its next issue, the State again combines more than one argument. First it

contends the trial court does not have subject matter jurisdiction to issue an injunction or

appoint a receiver. Second, it argues the trial court lacks jurisdiction to enter an injunction

because appellees have not joined indispensable parties to the litigation.


       Injunctive Relief and Receivership


       The State’s argument seems predicated on the correctness of its contention that

appellees’ ultra vires claim is barred by sovereign immunity.           Having rejected that

contention, in this interlocutory appeal we will not speculate on the propriety of relief that

                                              11
might be awarded by the trial court in the event appellees prevail in their ultra vires claim.

See Heinrich, 284 S.W.3d at 376 (“[A] claimant who successfully proves an ultra vires

claim is entitled to prospective injunctive relief”); Lain, 349 S.W.2d at 582 (successful

proponent of claim against government official for wrongful possession entitled to

“appropriate relief”).


          Joinder of Indispensable Parties


          The State’s indispensable parties argument seems to be the trial court lacks

jurisdiction to consider appellees’ requests for injunctive relief and a receivership because

appellees have not joined the Railroad Commission of Texas and the former mineral

lessee of the riverbed as parties to the suit.


          A trial court possesses broad discretion to decide matters of party joinder.

Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 179 (Tex. App.—San Antonio 2008).

Civil Rule 39 guides the exercise of that discretion. Id.; TEX. R. CIV. P. 39. If the trial court

determines an absent person falls within the provisions of Rule 39(a) it must effect the

person’s joinder. Id. at 180. If Rule 39(a) requires a person’s joinder, but joinder cannot

be effected, the trial court must decide “‘whether in equity and in good conscience the

action should proceed among the parties before it, or should be dismissed, the absent

person being thus regarded as indispensable.’” Id. (quoting TEX. R. CIV. P. 39(b)). The

State has not shown how the claimed improper party joinder required the grant of its plea

to the jurisdiction.


          We overrule the State’s jurisdictional challenges to appellees’ claim for equitable

relief.


                                               12
Recovery of Exemplary Damages


       By its final issue, the State argues its plea to the jurisdiction should have been

sustained to the extent it challenged the trial court’s subject matter jurisdiction to

adjudicate appellees’ claim for exemplary damages. An award of exemplary damages is

not authorized by the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.024 (West 2019) (“This chapter does not authorize exemplary damages”).


       But whatever monetary amount appellees might seek to recover at trial does not

implicate the State’s immunity from suit; rather, it pertains to the State’s immunity from

liability. See Harris Cty.—Hous. Sports Auth. v. Chilel, No. 14-12-00380-CV, 2013 Tex.

App. LEXIS 5117, at *7-8 (Tex. App.—Houston [14th Dist.] Apr. 25, 2013, no pet.) (mem.

op.) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003) (“Unlike

immunity from suit, immunity from liability does not affect a court’s jurisdiction to hear a

case and cannot be raised in a plea to the jurisdiction”). Accordingly, a plaintiff’s request

for recovery of exemplary damages is not properly challenged by a governmental unit

through a plea to the trial court’s jurisdiction. Id.; see City of Cleburne v. Trussell, 10

S.W.3d 407, 410 (Tex. App.—Waco 2000, no pet.) (“A plea to the jurisdiction urges that

the court lacks the power to determine the subject matter of the controversy. . . . Thus,

sustaining a plea to the jurisdiction requires dismissal of the entire cause of action. . . .

As a result, the granting of a plea to the jurisdiction on the basis that some of the damages

pled are not recoverable would be erroneous”) (citations omitted); Dallas Cnty. v.

Gonzales, 183 S.W.3d 94, 103 (Tex. App.—Dallas 2006, pet. denied) (“The County’s

argument that appellee cannot recover other damages does not attack the trial court’s

subject-matter jurisdiction over the cause of action and is outside our limited jurisdiction

                                             13
in this interlocutory appeal”). For that reason, the State’s final issue challenging the

potential recovery of exemplary damages lies outside the scope of our limited

interlocutory appellate jurisdiction. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.

2011) (stating statutes granting interlocutory appeals are strictly applied because they are

narrow exceptions to general rule against appeals from interlocutory orders).              We

accordingly dismiss the State’s fifth issue.


                                         Conclusion


       Having overruled or dismissed each of the State’s grounds supporting its

interlocutory appeal, we affirm the court’s order denying the State’s plea to the jurisdiction.




                                                          James T. Campbell
                                                             Justice




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