       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                    NO. 03-19-00185-CV



                         Texas Department of Insurance, Appellant

                                              v.

                        Texas Association of Health Plans, Appellee


               FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
     NO. D-1-GN-18-003846, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                        OPINION


              In this interlocutory appeal, the Texas Department of Insurance (the Department)

challenges the trial court’s denial of the Department’s plea to the jurisdiction on two claims

brought by the Texas Association of Health Plans (the Association): (1) a claim under the

Administrative Procedure Act (APA), see Tex. Gov’t Code § 2001.038, seeking to invalidate

certain Department rules as “invalid exercises of [the Department’s] statutory authority” to

regulate certain health plans (the APA Claim); and (2) an alternative claim under the Uniform

Declaratory Judgments Act (UDJA), see Tex. Civ. Prac. & Rem. Code §§ 37.001–.011, seeking

to invalidate certain Texas Insurance Code provisions that “authoriz[e] out of network payments

at ‘usual and customary rates’” as “unconstitutional delegations of state authority to self-

interested private entities” (the UDJA Claim). The Department argues that sovereign immunity

bars these claims. We disagree and affirm.
                                       BACKGROUND

               The Association is “a not-for-profit trade association representing the legal and

financial interests of licensed Texas health insurers, health maintenance organizations (HMOs)

and other health plans licensed to operate in Texas” with a mission to “improve healthcare in

Texas, including by improving the value and cost-effectiveness of healthcare services covered by

its members’ plans.” In 2018, the Association sued the Department, raising its APA Claim and

alternatively its UDJA Claim, asserting associational standing to bring claims on behalf of its

members, and claiming that section 2001.038 waives sovereign immunity as to its APA Claim.

The Department filed a plea to the jurisdiction, asserting that sovereign immunity barred the

APA and UDJA Claims and challenging the Association’s standing to bring the claims on behalf

of its members.    At an evidentiary hearing, the Association submitted affidavits from its

members supporting associational standing, and the Department does not challenge the

Association’s standing in this interlocutory appeal. Following the hearing, the trial court denied

the Department’s plea to the jurisdiction. The Department timely appealed the order.


                                  STANDARD OF REVIEW

               “Procedurally, the assertion of sovereign immunity implicates the trial court’s

jurisdiction and is properly asserted in a plea to the jurisdiction.” PHI, Inc. v. Texas Juvenile

Justice Dep’t, No. 18-0099, ___ S.W.3d ___, 2019 WL 1873431, at *3 (Tex. Apr. 26, 2019)

(citing Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016); Rusk

State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012)). When a plea challenges the pleadings, we

determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction

to hear the case, construing the pleadings liberally in favor of the plaintiffs and looking to the



                                                2
pleaders’ intent. Houston Belt & Terminal Ry., 487 S.W.3d at 160 (quoting City of El Paso

v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)). When the relevant jurisdictional facts are

undisputed, as they are here, “the trial court rules on the plea to the jurisdiction as a matter of

law.” PHI, ___ S.W.3d at ___, 2019 WL 1873431, at *3 (quoting Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004)). We review the trial court’s ruling

on the plea de novo. See id.


                                          DISCUSSION

               The Department raises two issues on appeal. First, the Department argues that

sovereign immunity bars the Association from asserting its APA Claim. According to the

Department, “section 2001.038 [] limits who may invoke its waiver of immunity” and does not

waive sovereign immunity for a claim brought by an association to challenge the Department’s

rules on behalf of its members because the provision requires an allegation “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) (emphasis added). Second,

although the UDJA waives sovereign immunity for constitutional challenges to statutes, the

Department argues that the UDJA Claim is in effect a statutory construction claim that is barred

by the redundant remedies doctrine and that even if it is a constitutional challenge to the statute,

the Association did not sufficiently plead a viable constitutional claim.


The APA Claim

               The parties agree that section 2001.038 of the Texas Government Code is the only

possible statutory basis for a waiver of the Department’s sovereign immunity as to the

Association’s rule challenge in its APA Claim. In interpreting a statutory provision to determine

                                                 3
whether the legislature has waived sovereign immunity, we look to the text of the statute at issue

to determine whether it contains a clear and unambiguous expression of waiver. See Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003) (“It is settled in Texas that for the

Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a clear

and unambiguous expression of the Legislature’s waiver of immunity.”); see also Tex. Gov’t

Code § 311.034 (“In order to preserve the legislature’s interest in managing state fiscal matters

through the appropriations process, a statute shall not be construed as a waiver of sovereign

immunity unless the waiver is effected by clear and unambiguous language.”).              Here, the

relevant statute reads:


       The validity or applicability of a rule, including an emergency rule adopted under
       Section 2001.034, may be determined in an action for declaratory judgment if it is
       alleged 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). The Department does not dispute that “section 2001.038 is a

grant of original jurisdiction and, moreover, waives sovereign immunity,” Machete’s Chop Shop,

Inc. v. Texas Film Comm’n, 483 S.W.3d 272, 286 (Tex. App.—Austin 2016, no pet.) (quoting

Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 123 (Tex. App.—Austin 2007, no

pet.)), as to a suit brought by a plaintiff alleging that a rule interferes with or impairs its legal

right or privilege. And the Department agrees that an association can challenge a rule under

section 2001.038 if the association alleges interference with or impairment of the association’s

legal right or privilege. But, in what appears to be a novel interpretation of section 2001.038, the

Department claims that the scope of the sovereign immunity waiver does not extend to an

associational plaintiff alleging interference with or impairment of its members’ legal rights or

privileges. We disagree.
                                                 4
                The term “plaintiff” refers to the party bringing suit. See Plaintiff, Black’s Law

Dictionary (11th ed. 2019) (“The party who brings a civil suit in a court of law.”); Plaintiff,

Webster’s Third New International Dictionary 1729 (2002) (defining “plaintiff to mean “one

who commences a personal action or lawsuit to obtain a remedy for an injury to his rights”; “the

complaining party in any litigation”). The Department argues that since the Association is the

party bringing suit, the Association must allege that the rule or its threatened application

interferes with or impairs its legal right or privilege, not the legal right or privilege of its

members.     However, the United States Supreme Court has noted that “for the purpose of

determining the scope of [an association’s] rights as a litigant, the association ‘and its members

are in every practical sense identical’” and the modern concept of associational standing emerged

out of this explanation. See United Food & Commercial Workers Union Local 751 v. Brown

Grp., Inc., 517 U.S. 544, 551 (1996) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

459 (1958)). Applying this same logic to the sovereign immunity context, we conclude that

because an association’s “rights as a litigant” are “in every practical sense identical” with “its

members,” an association that can satisfy associational standing requirements to challenge a rule

under section 2001.038 would also be alleging that the rule or its threatened application

interferes with or impairs the rights or privileges of the plaintiff, even if those rights or privileges

are of the association’s members.

                We recognize that “standing and sovereign immunity are distinct jurisdictional

concepts.” Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 745 (Tex. App.—

Austin 2014, pet. dism’d). But with respect to section 2001.038, the Texas Supreme Court has

instructed: “We treat [section 2001.038(a)]’s requirement as but another expression of the

general doctrine of standing.” Finance Comm’n of Tex. v. Norwood¸ 418 S.W.3d 566, 582 n.83

                                                   5
(Tex. 2013).     In Norwood, the Texas Supreme Court considered whether the plaintiffs

sufficiently pleaded the requisite interest to bring suit. Id. at 582. The Norwood Court noted that

the plaintiffs’ pleadings tracked the language of section 2001.038(a) and that the provision “does

not purport to set a higher standard than that set by the general doctrine of standing, and it cannot

be lower, since courts’ constitutional jurisdiction cannot be enlarged by statute.” Id. at 582 n.83.

Although Norwood did not specifically address the question of whether an association that met

the requirements of associational standing also satisfied section 2001.038(a)’s requirements to

challenge a rule, the Norwood Court spoke broadly and plainly as to how courts should treat

section 2001.038(a)’s requirement.

               After Norwood was decided, litigants argued before this Court that Norwood

concerned statutory standing, not waiver of sovereign immunity. Nevertheless, we held:


       But while it is true that standing and sovereign immunity are distinct jurisdictional
       concepts, it remains that appellants’ “sovereign immunity” challenge is rooted in
       the same “legal right or privilege” language that the Norwood court concluded,
       contrary to appellants’ view, “does not purport to set a higher standard than that
       set by the general doctrine of standing.” Additionally, we observe that the
       Norwood court did not characterize this issue as one of statutory “standing,” but
       analyzed it in the more general terms of “the injury required by [APA section
       2001.038] for judicial review,” phraseology that equally contemplates a
       requirement for invoking the statute’s waiver of sovereign immunity so as to
       permit “judicial review” of the challenged rules. Nor would any such labels be
       significant, in our view, given that the Texas Supreme Court considers sovereign
       immunity to implicate subject-matter jurisdiction—and to be susceptible of being
       raised for the first time on appeal—just as with standing issues. . . .


       [W]e cannot conclude that the above-quoted language leaves room for lower
       courts to conclude that the existing or threatened interference or infringement
       with a “legal right or privilege of the plaintiff” required by APA section
       2001.038—whether viewed in terms of “standing” under the statute or of the
       sufficiency of pleadings or proof required to invoke the statute’s waiver of
       sovereign immunity—is “a higher standing than that set by the general doctrine
       of standing.”


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Balquinta, 429 S.W.3d at 744–45 (footnotes and citations omitted). Following Norwood and

Balquinta, we conclude that the language “legal right or privilege of the plaintiff” in section

2001.038 is “but another expression of the general doctrine of standing,” Norwood, 418 S.W.3d

at 582 n.83, whether viewed in terms of standing or waiver of sovereign immunity.

               Since 1993, the general doctrine of standing in Texas law has included the

associational standing test as articulated by the United States Supreme Court:


       [A]n association has standing to sue on behalf of its members when “(a) its
       members would otherwise have standing to sue in their own right; (b) the interests
       it seeks to protect are germane to the organization’s purpose; and (c) neither the
       claim asserted nor the relief requested requires the participation of individual
       members in the lawsuit.”


Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993) (quoting Hunt

v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977), and holding, “The United

States Supreme Court has articulated a standard for associational standing that lends itself to our

use. We adopt that test today.”); see also Brown Grp., 517 U.S. at 551 (“[F]or the purpose of

determining the scope of [an association’s] rights as a litigant, the association ‘and its members

are in every practical sense identical.’” (quoting NAACP, 357 U.S. at 459)); Glanton ex rel.

ALCOA Prescription Drug Plan v. AdvancePCS Inc., 465 F.3d 1123, 1127 (9th Cir. 2006)

(noting that federal cases enunciating associational standing doctrine “turn on the fiction that an

individual member authorizes the group to sue on his behalf”). Thus, an association that meets

this associational standing test satisfies the general standing requirements that “[t]he plaintiff

must be personally injured—he must plead facts demonstrating that he, himself (rather than a

third party or the public at large), suffered the injury,” Heckman v. Williamson County,

369 S.W.3d 137, 155 (Tex. 2012), even though the association was not “personally injured,” see


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South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 308 (Tex. 2007) (per curiam) (applying

associational standing test); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000)

(noting that “when a defendant asserts that a plaintiff organization does not have standing to

assert claims on behalf of its members” then “a determination of associational standing is a

prerequisite to the plaintiff’s presentation of its substantive claims”).1

               Shortly after the Texas Supreme Court decided Texas Association of Business in

1993, the legislature codified into the Texas Government Code the predecessor to section

2001.038(a) without substantive change. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1,

1993 Tex. Gen. Laws 583, 739 (codified at Tex. Gov’t Code § 2001.038(a)). The legislature is

presumed to be “aware of relevant case law when it enacts or modifies statutes” and “‘[a] statute

is presumed to have been enacted by the legislature with complete knowledge of the existing law

and with reference to it.’” In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding)

(quoting Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)). Thus, when the

legislature codified section 2001.038(a), it is presumed to have been aware that the Texas

Supreme Court adopted the associational standing test in Texas Association of Business earlier

that year; yet, the legislature did not change section 2001.038’s “legal right or privilege of the

plaintiff” language.

               Moreover, since 1993, we have decided myriad cases without questioning the

legislature’s waiver of sovereign immunity when membership organizations have brought a rule




       1  The Department does not challenge the Association’s ability to meet this test, and our
review of the record—including the affidavits submitted at the evidentiary hearing as to how the
Association’s members risk being adversely affected by the rules at issue in this appeal—does
not give us cause to conclude sua sponte that the Association lacked standing.
                                                   8
challenge under section 2001.038.2 See, e.g., Texas Ass’n of Acupuncture & Oriental Med.

v. Texas Bd. of Chiropractic Exam’rs, 524 S.W.3d 734 (Tex. App.—Austin 2017, no pet.); Texas

Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n, No. 03-14-00396-CV, 2014 WL 7014530

(Tex. App.—Austin Dec. 8, 2014, pet. denied) (mem. op.); Texas Ass’n of Psychological Assocs.

v. Texas State Bd. of Exam’rs of Psychologists, 439 S.W.3d 597 (Tex. App.—Austin 2014, no

pet.); Texas Soc. of Prof’l Eng’rs v. Texas Bd. of Architectural Exam’rs, No. 03-08-00288-CV,

2008 WL 4682446, at *5 (Tex. App.—Austin Oct. 24, 2008, no pet.) (mem. op.); Texas State Bd.

of Podiatric Med. Exam’rs v. Texas Orthopaedic Ass’n, No. 03-04-00253-CV, 2004 WL 2556917

(Tex. App.—Austin Nov. 12, 2004, no pet.) (mem. op.); Texas State Bd. of Plumbing Exam’rs

v. Associated Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 752 (Tex.

App.—Austin 2000, pet. dism’d by agr.); Texas Alcoholic Beverage Comm’n v. Amusement &

Music Operators of Tex., Inc., 997 S.W.2d 651, 656 (Tex. App.—Austin 1999, pet. dism’d

w.o.j.). Although section 2001.038(a) and its substantially similar predecessor have been law


       2   We recognize that these cases do not necessarily implicate the merits of whether
sovereign immunity was waived as to associations because the sovereign immunity issue was not
joined. As the Texas Supreme Court recently noted, it has “been more guarded in [its]
description of the interplay of jurisdiction and sovereign immunity,” it “‘does not equate
immunity to a lack of subject-matter jurisdiction,’” and “‘while a court is obliged to examine its
subject-matter jurisdiction on its own in every case, we have never suggested that a court should
raise immunity on its own whenever the government is sued.’” Engelman Irrigation Dist.
v. Shields Bros., Inc., 514 S.W.3d 746, 751 (Tex. 2017) (quoting Rusk State Hosp. v. Black,
392 S.W.3d 88, 102 (Tex. 2012) (Hecht, J., concurring)). Nevertheless, in our precedent
predating Engelman, we have noted that Rusk implies that sovereign immunity may be raised by
an appellate court sua sponte. See Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726,
745 (Tex. App.—Austin 2014, pet. dism’d) (citing Texas State Bd. of Veterinary Med. Exam’rs
v. Giggleman, 408 S.W.3d 696, 707 n.18 (Tex. App.—Austin 2013, no pet.)). Regardless,
although not precedential, we find support for our conclusion in these myriad cases as
representative of the standard practice of associations to challenge agency rules under section
2001.038 to which both this Court and the legislature have remained silent as to sovereign
immunity for over twenty years and to which the executive apparently has not challenged in this
Court until now.
                                                9
since 1975, the Department has not identified a single case in which sovereign immunity barred

an association from bringing a rule challenge under section 2001.038(a) or its predecessor.

               For all these reasons, we decline the Department’s invitation in this appeal to

interpret section 2001.038’s waiver of sovereign immunity as excluding associations that satisfy

the general standing doctrine.    Because it is undisputed that the Association satisfied the

requirements for associational standing, we overrule the Department’s first issue.


The UDJA Claim

               We now turn to the Department’s second issue—whether sovereign immunity

bars the UDJA Claim. In its live petition, the Association, citing Texas Boll Weevil Eradication

Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex. 1997), described its UDJA Claim

as follows:


       In the alternative, and only if the Court construes the statutes to require charges-
       based payments as described above, [the Association] seeks a declaration under
       the UDJA that Insurance Code Provisions authorizing out of network payments at
       “usual and customary rates” are unconstitutional delegations of state authority to
       self-interested private entities.


The Department appears to challenge this claim based on the pleadings, making three arguments

for why sovereign immunity bars the Association’s UDJA Claim.

               First, the Department argues that the Association’s UDJA Claim is in effect solely

a statutory construction claim and that “the UDJA does not provide a waiver for bare statutory-

construction claims.” But the Association’s live petition does not ask the trial court to construe

the statutes under the UDJA; rather, the Association pleads the UDJA Claim in the alternative

and “only if the Court construes the statutes” in a certain manner in evaluating its APA Claim.

The UDJA Claim is for a declaration “that Insurance Code provisions authorizing out of network

                                                10
payments at ‘usual and customary rates’ are unconstitutional delegations of state authority to

self-interested private entities”—in other words, a constitutional challenge to the statute, not a

statutory construction claim. See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d

69, 75–76 (Tex. 2015) (reaffirming rule that “sovereign immunity is inapplicable when a suit

challenges the constitutionality of a statute and seeks only equitable relief”).

                Second, the Department asserts that the Association’s UDJA Claim is redundant

with its APA Claim and therefore is barred by the redundant remedies doctrine. See id. at 79

(“Under the redundant remedies doctrine, courts will not entertain an action brought under the

UDJA when the same claim could be pursued through different channels. . . . When a plaintiff

files a proceeding that only challenges the validity of an administrative rule, the parties are

bound by the APA and may not seek relief under the UDJA because such relief would be

redundant.”).    But the Association could not bring its UDJA Claim challenging the

constitutionality of the relevant Texas Insurance Code provisions under section 2001.038 of the

APA; thus, the redundant remedies doctrine does not bar the Association’s UDJA claim. See id.

at 80 (“Here the [plaintiffs] challenge both rules as defined by the APA and statutes. Because

the [plaintiffs] cannot attack the constitutionality of the statutes pursuant to Section 2001.038 of

the APA, their UDJA claims are not barred by the redundant remedies doctrine.”).

                Third, the Department argues that the Association “failed to assert a ‘viable’

constitutional theory that invokes the UDJA’s waiver for statutory-validity claims.”              The

Department admits that “[b]ecause [the Association] is pursuing a facial challenge, it is true that

[the Association] was not obligated to allege facts demonstrating how the Insurance Code

provisions operate in practice.” Nevertheless, the Department claims that even though the

Association cited “the seminal private-delegation case in its petition,” “it failed to assert essential

                                                  11
facts” addressing Boll Weevil’s “eight-factor test to assess the validity of a private delegation of

governmental authority.” See Boll Weevil, 952 S.W.2d at 472. Relying on Andrade v. NAACP

of Austin, 345 S.W.3d 1, 11 (Tex. 2011), the Department argues that the Association’s

“conclusory private-delegation claim falls woefully short of presenting a viable statutory-validity

challenge to the four challenged Insurance Code provisions.” We disagree.

               The Texas Supreme Court has explained that “Andrade stands for the

unremarkable principle that claims against state officials—like all claims—must be properly

pleaded in order to be maintained, not that such claims must be viable on their merits to negate

immunity” and that “our conclusion there simply followed a line of decision in which we held

that claims were not viable due to basic pleading defects.” Patel, 469 S.W.3d at 77 (citing

Andrade, 345 S.W.3d at 13–14); see Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (“Texas

follows a ‘fair notice’ standard for pleading, in which courts assess the sufficiency of pleadings

by determining whether an opposing party can ascertain from the pleading the nature, basic

issues, and the type of evidence that might be relevant to the controversy.”); Texas Educ. Agency

v. American YouthWorks, Inc., 496 S.W.3d 244, 259 (Tex. App.—Austin 2016) (“We determine

a claim’s viability by considering the [plaintiffs’] pleadings in their favor and, if necessary,

reviewing the entire record to determine if any evidence supports subject-matter jurisdiction.”

(emphasis added)), aff’d sub nom. Honors Acad., Inc. v. Texas Educ. Agency, 555 S.W.3d 54

(Tex. 2018). Here, the Association provided fair notice in its pleadings of the type of challenge

it was bringing:    a facial challenge to the specified Texas Insurance Code provisions “as

unconstitutional delegations of state authority to self-interested private entities.” See FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 878 (Tex. 2000) (“Because we are reviewing the



                                                12
statute under a facial challenge, [the statute]’s constitutionality depends on whether the statute as

written, rather than as it operates in practice, passes the Boll Weevil factors.”).

               Nor do we see how the Association’s facial constitutional challenge is unviable.

The Department concedes that the Association asserts that the statutes delegate governmental

authority to private entities but complains that the Association failed to analyze or address the

specific Boll Weevil factors in its petition, even though none of the factors is dispositive. See id.

at 875 (holding that “the importance of each factor will necessarily differ in each case”); Boll

Weevil, 952 S.W.2d at 472 (describing eight factors). The Department offers no authority that a

plaintiff is required to specifically address each of these eight factors in its pleadings to assert a

delegation claim and an analysis of the Boll Weevil factors in a facial constitutional challenge

primarily turns on the specific statutory and regulatory scheme, not on evidence and fact. See,

e.g., FM Props., 22 S.W.3d at 880–88 (analyzing statutory and regulatory scheme to determine if

Boll Weevil factors weigh for or against constitutionality of delegation). A plaintiff is required to

plead facts sufficient to show a waiver of immunity under the UDJA; the plaintiff is not required

to plead its legal arguments as to an analysis of the Boll Weevil factors. Cf. Amadi v. City of

Houston, 369 S.W.3d 254, 262 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (concluding

that plaintiff “sufficiently pleaded facts showing a waiver of immunity and that [the plaintiff] did

not have to plead any legal argument as to the construction of subsection 101.106(b)”).

               Finally, even if the Boll Weevil factors were to weigh in favor of concluding that

the statutes as written are constitutional, this would not make the Association’s constitutional

UDJA Claim unviable in our jurisdictional inquiry; rather, this would go to the claim’s merits,

which we generally do not reach in a plea to the jurisdiction. See County of Cameron v. Brown,

80 S.W.3d 549, 555 (Tex. 2002) (“In deciding a plea to the jurisdiction, a court may not weigh

                                                  13
the claims’ merits but must consider only the plaintiffs’ pleadings and the evidence pertinent to

the jurisdictional inquiry.”); Blue, 34 S.W.3d at 554 (“A plea to the jurisdiction is a dilatory plea,

the purpose of which is to defeat a cause of action without regard to whether the claims asserted

have merit.”); Viable, Black’s Law Dictionary (11th ed. 2019) (“Capable of succeeding.”). This

is not the type of viability challenge that courts have considered that would make a claim

incapable of succeeding—for example, when “a litigant’s couching its requested relief in terms

of declaratory relief does not alter the underlying nature of the suit” and “sovereign immunity

will bar an otherwise proper [U]DJA claim that has the effect of establishing a right of relief

against the State for which the Legislature has not waived sovereign immunity.” Texas Parks &

Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011); see, e.g., Spence v. State,

No. 03-17-00685-CV, 2019 WL 1868841, at *5 (Tex. App.—Austin Apr. 26, 2019, pet. denied)

(mem. op.) (concluding that because other courts “have exclusive jurisdiction over the substance

of the various aspects of appellants’ ultimate claim for relief” for compensation, appellants “did

not plead a viable UDJA claim to establish the trial court’s subject matter jurisdiction over those

claims”). We therefore disagree with the Department that the Association did not plead a viable

constitutional claim.

               For these reasons, we overrule the Department’s second issue.


                                          CONCLUSION

               Having overruled the Department’s issues, we affirm the trial court’s denial of the

Department’s plea to the jurisdiction.




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                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: March 5, 2020




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