                             Fourth Court of Appeals
                                   San Antonio, Texas
                                           OPINION
                                       No. 04-14-00414-CV

                 Whitney BREWSTER, in her capacity as Executive Director of the
                            Texas Department of Motor Vehicles,
                                        Appellant

                                                 v.

           Drew ROICKI and Richard Roicki as Successors in Interest to Pinnacle Motors,
                                         Appellees

                    From the 407th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2013-CI-06565
                            Honorable Richard Price, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice
Concurring Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: May 13, 2015

AFFIRMED

           Appellant Whitney Brewster, Executive Director of the Texas Department of Motor

Vehicles, asserted immunity from suit in the underlying cause regarding TxDMV’s decisions

affecting four vehicle titles. The trial court denied her plea to the jurisdiction, and she appeals.

Because Appellees raised a fact issue on whether Brewster acted without legal authority, which

could invoke the ultra vires immunity exception, we affirm the trial court’s order.
                                                                                                  04-14-00414-CV


                                                BACKGROUND

        Pinnacle Motors applied for marketable titles for three vehicles through the Bexar County

Tax Assessor-Collector (BCTAC). BCTAC issued title receipts for the vehicles, and in 2008,

TxDMV issued titles to the three vehicles. In 2009, Pinnacle applied for a bonded title for a 2008

Chrysler Sebring, but TxDMV refused to issue a marketable title because a “[t]itle was previously

issued in Michigan and [the vehicle title was] branded as ‘scrap.’” In September 2009, TxDMV

revoked the three titles it had issued earlier and noted the three vehicle’s titles “should be branded

as Nonrepairable.”

        In 2009, Pinnacle Motors sued Bexar County, BCTAC, and TxDMV. 1                                 Pinnacle

complained that TxDMV improperly revoked three titles and refused to issue a fourth, and it sought

an administrative hearing to review TxDMV’s decision. See TEX. TRANSP. CODE ANN. § 501.052

(West Supp. 2014). Following the hearing, Pinnacle, Bexar County, and BCTAC settled the suit.

Under the settlement, BCTAC conditionally agreed to “reissue rebuilt salvage titles” to the four

vehicles and Pinnacle agreed to dismiss with prejudice its claims against all parties. Pinnacle met

the conditions, and BCTAC filed Pinnacle’s applications for rebuilt salvage titles, but TxDMV did

not issue marketable titles.

        In 2013, Pinnacle sued BCTAC, TxDMV, and Whitney Brewster in her official capacity

as executive director of TxDMV. 2 TxDMV asserted its immunity from suit, the trial court denied

its plea to the jurisdiction, and TxDMV appealed. This court dismissed Pinnacle’s claims against

TxDMV but did not address Pinnacle’s claims against Brewster. 3




1
  2009-CI-18817.
2
  2013-CI-06565.
3
  Tex. Dep’t of Motor Vehicles v. Pinnacle Motors, No. 04-13-00496-CV, 2014 WL 631453, at *3 (Tex. App.—San
Antonio Feb. 19, 2014, no pet.) (mem. op.) (dismissing claims against TxDMV); id. at *2 (noting “any claims against
[Brewster] remain pending and are not a subject of this appeal”).

                                                       -2-
                                                                                                   04-14-00414-CV


        In her March 2014 plea to the jurisdiction, Brewster asserts she is immune from suit

because her actions were discretionary and lie outside the ultra vires immunity exception.

Pinnacle 4 insists Brewster violated section 501.052 by refusing to abide by BCTAC’s

determination to issue marketable titles, and because she acted without lawful authority, the ultra

vires exception waives her immunity from suit.

                        ULTRA VIRES EXCEPTION, PLEA TO THE JURISDICTION

        “‘[S]uits to require state officials to comply with statutory or constitutional provisions are

not prohibited by sovereign immunity’” but may proceed under the ultra vires exception. Tex.

Dep’t of Ins. v. Reconveyance Servs., Inc., 306 S.W.3d 256, 258 (Tex. 2010) (per curiam) (quoting

City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)); accord Tex. Dep’t of Transp. v.

Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam). The ultra vires exception waives a

government official’s immunity in certain circumstances including where “the officer acted

without legal authority.” Heinrich, 284 S.W.3d at 372; accord Sefzik, 355 S.W.3d at 620.

        For an ultra vires claim to survive a plea to the jurisdiction, the plaintiff must “allege[]

facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” See Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Heinrich, 284 S.W.3d at

372. If the plaintiff’s pleadings demonstrate jurisdiction but the defendant challenges the alleged

facts, the trial court must determine whether a jurisdictional fact question exists. See Lubbock

Cnty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305 (Tex. 2014)

(noting the defendant bears the burden “to establish that it is a governmental entity entitled to

governmental immunity” and the plaintiff must “establish, or at least raise a fact issue on, a waiver



4
  Appellees Drew Roicki and Richard Roicki filed voluntary bankruptcy petitions. In the cause underlying this appeal,
the Roickis identify themselves as successors in interest to Pinnacle Motorcars. For consistency with our February
19, 2014 opinion in appeal number 04-13-00469-CV, we refer to the Roickis as Pinnacle.

                                                        -3-
                                                                                       04-14-00414-CV


of immunity”); Miranda, 133 S.W.3d at 227. “If the evidence creates a fact question regarding

the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact

issue will be resolved by the fact finder.” Miranda, 133 S.W.3d at 227–28.

                                      STANDARD OF REVIEW

       We may review the denial of a government official’s plea to the jurisdiction. TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2014); Tex. A & M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 846 (Tex. 2007) (applying section 51.014(a)(8) to government officials sued in their

official capacity); see Miranda, 133 S.W.3d at 221.

       We review de novo the question of “whether [the trial] court has subject matter

jurisdiction.” Miranda, 133 S.W.3d at 226 (citing Tex. Natural Res. Conservation Comm’n v. IT-

Davy, 74 S.W.3d 849, 855 (Tex. 2002)). We examine the plea to the jurisdiction evidence like

“that of a [traditional] summary judgment.” Id. at 228 (referencing TEX. R. CIV. P. 166a(c));

accord Heinrich, 284 S.W.3d at 372 (citing Miranda). We “take as true all evidence favorable to

the nonmovant [and] indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” Miranda, 133 S.W.3d at 228 (citation omitted); accord Heinrich, 284

S.W.3d at 372 (citing Miranda).

                                      PARTIES’ ARGUMENTS

       Pinnacle, in its 2013 suit underlying this appeal, asked the trial court to declare that section

501.052 of the Texas Transportation Code makes BCTAC’s hearing determination final and

binding on TxDMV. It argues that when BCTAC, after the hearing and as part of the settlement,

agreed to “issue” rebuilt salvage titles to all four vehicles, BCTAC “overruled” (1) TxDMV’s

revocation of the three previously issued titles and (2) TxDMV’s refusal to issue a fourth title.

Pinnacle argues that section 501.052 makes BCTAC’s determination final and binding on



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                                                                                                   04-14-00414-CV


TxDMV. Thus, because she failed to issue marketable titles as required by Pinnacle’s settlement

agreement with BCTAC, Brewster acted without legal authority and her immunity was waived.

        Brewster argues her immunity has not been waived because there is no allegation that she

personally took any action that was unlawful, TxDMV has discretion and final authority to

determine whether and what type of title should be issued, and Pinnacle’s suit is an impermissible

attempt to control state action. She also argues recent legislation applies in this case to strip the

trial court of authority to order a change in the type of title issued by TxDMV.

                                                    ANALYSIS

        We begin by determining whether Pinnacle’s suit is barred by sovereign immunity.

A.      Sovereign Immunity

        Generally, sovereign immunity shields state officials from both suit and liability. Travis

Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011); Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008); Koseoglu, 233 S.W.3d at 844. As a

defendant raising a plea to the jurisdiction, Brewster bears the burden to show she is immune from

suit. See Church & Akin, 442 S.W.3d at 305; Miranda, 133 S.W.3d at 228. Brewster was sued in

her official capacity as the executive director of TxDMV, and TxDMV is an agency of the State

of Texas. Thus, Brewster is shielded by sovereign immunity for her discretionary, lawful acts.

See Heinrich, 284 S.W.3d at 372; see also Reconveyance Servs., 306 S.W.3d at 258.

B.      Ultra Vires Exception

        However, if Brewster acted without legal authority in revoking or refusing to issue

marketable titles, Pinnacle’s suit may fall within the ultra vires exception. 5 See Heinrich, 284


5
 For Brewster’s plea to the jurisdiction, Pinnacle is the nonmovant. See TEX. R. CIV. P. 166a(c); Miranda, 133 S.W.3d
at 228. We accept Pinnacle’s statements as true and make all reasonable inferences in its favor. See Miranda, 133
S.W.3d at 228; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). It is undisputed Brewster is executive
director of TxDMV, and Pinnacle argues Brewster is responsible for TxDMV’s title decisions. Brewster provides no

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                                                                                                   04-14-00414-CV


S.W.3d at 372; see also Reconveyance Servs., 306 S.W.3d at 258. To determine whether Brewster

acted without legal authority, we must first construe the statutes pertaining to issuing vehicle titles.

C.       Issuing Vehicle Titles

         An owner or purchaser of a vehicle who seeks a certificate of title 6 or a record of title 7 to

a motor vehicle must submit an application to the appropriate county assessor-collector. TEX.

TRANSP. CODE ANN. § 501.023; Ferrell v. Price, No. 02-10-00266-CV, 2011 WL 6415155, at *3

(Tex. App.—Fort Worth Dec. 22, 2011, no pet.) (mem. op.). The receiving county assessor-

collector enters the application information in TxDMV’s titling system and issues the applicant a

title receipt, not a title. TEX. TRANSP. CODE ANN. §§ 501.024, .027; Ferrell, 2011 WL 6415155,

at *3. After reviewing the application, TxDMV may issue a title of the appropriate type. TEX.

TRANSP. CODE ANN. § 501.027 (requiring TxDMV to issue a title if it determines the statutory

requirements have been met); id. § 501.051 (granting TxDMV discretion, on certain grounds, to

refuse to issue a title); Ferrell, 2011 WL 6415155, at *3.

D.       Refusing to Issue or Revoking Issued Titles

         TxDMV has discretion to either refuse to issue a title or revoke a previously issued title if

it determines, inter alia, “the applicant is not entitled to a title.” TEX. TRANSP. CODE ANN.

§ 501.051(a)(3); Ferrell, 2011 WL 6415155, at *3. For cases where TxDMV refuses to issue or

revokes a previously issued title, the legislature created a process to review TxDMV’s decision.

See Ferrell, 2011 WL 6415155, at *4.




evidence or authority to show she is not responsible for TxDMV’s actions on the titles in question. Under a plea to
the jurisdiction standard of review, we conclude Pinnacle raised a genuine issue of material fact on whether Brewster
is responsible for the title decisions. See Miranda, 133 S.W.3d at 228.
6
  A certificate of title is a paper document. TEX. TRANSP. CODE ANN. § 501.002(1).
7
  A record of title is an electronic record in TxDMV’s database. Id. § 501.002(21).

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                                                                                     04-14-00414-CV


E.     Process to Review Revocation

       The review process is given in section 501.052:

       (a) An interested person aggrieved by a refusal, rescission, cancellation,
           suspension, or revocation under Section 501.051 may apply for a hearing to
           the county assessor-collector for the county in which the person is a resident.
           On the day an assessor-collector receives the application, the assessor-
           collector shall notify the department of the date of the hearing.
       (b) The assessor-collector shall hold the hearing not earlier than the 11th day and
           not later than the 15th day after the date the assessor-collector receives the
           application for a hearing.
       (c) At the hearing, the applicant and the department may submit evidence.
       (d) A determination of the assessor-collector is binding on the applicant and the
           department as to whether the department correctly refused to issue or correctly
           rescinded, canceled, revoked, or suspended the title.
       (e) An applicant aggrieved by the determination under Subsection (d) may appeal
           only to the county or district court of the county of the applicant’s residence.
           An applicant must file an appeal not later than the fifth day after the date of
           the assessor-collector’s determination. The judge shall try the appeal in the
           manner of other civil cases. All rights and immunities granted in the trial of a
           civil case are available to the interested parties. If the department’s action is
           not sustained, the department shall promptly issue a title for the vehicle.
       TEX. TRANSP. CODE ANN. § 501.052.

F.     Effect of Assessor-Collector’s Determination

       Before examining the statute, we briefly review the applicable principles of statutory

construction.

       1.       Standard of Review

       We review questions of statutory construction de novo. Crosstex Energy Servs., L.P. v.

Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014) (citing City of Rockwall v. Hughes, 246 S.W.3d

621, 625 (Tex. 2008)).

       2.       Statutory Construction

       “In construing statutes, we ascertain and give effect to the Legislature’s intent as expressed

by the language of the statute.” City of Rockwall, 246 S.W.3d at 625; accord Koseoglu, 233

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                                                                                      04-14-00414-CV


S.W.3d at 840; see also TEX. GOV’T CODE ANN. § 311.023 (West 2013) (“Statute Construction

Aids”). We presume the legislature acted with purpose when it included each word and excluded

omitted words. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011);

Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). “If the

statutory text is unambiguous, [we] must adopt the interpretation supported by the statute’s plain

language unless that interpretation would lead to absurd results.” See Tex. Dep’t of Protective &

Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004); accord City of

Rockwall, 246 S.W.3d at 625–26.

       3.      TxDMV’s Authority over Vehicle Titles

       Under the plain language of the Transportation Code, TxDMV, not the county assessor-

collector, issues vehicle titles. TEX. TRANSP. CODE ANN. § 501.027; Ferrell, 2011 WL 6415155,

at *3. Further, TxDMV has some discretion as to the type of title it issues. TEX. TRANSP. CODE

ANN. § 501.09112 (salvage vehicle title); id. § 501.09113 (rebuilt salvage vehicle titles); id.

§ 501.0935 (salvage pool vehicle titles). Moreover, under section 501.051, TxDMV may refuse

to issue a title, or rescind, cancel, suspend, or revoke a title it has already issued. Id. § 501.051;

Ferrell, 2011 WL 6415155, at *4.

       4.      Assessor-Collector Review of TxDMV Decision

       On the other hand, section 501.052 unambiguously authorizes “[a]n interested person

aggrieved by a refusal, rescission, cancellation, suspension, or revocation under Section 501.051

[to] apply for a hearing to the county assessor-collector for the county in which the person is a

resident.” TEX. TRANSP. CODE ANN. § 501.052(a). The county assessor-collector must hold a

hearing to determine “whether [TxDMV] correctly refused to issue or correctly rescinded,

canceled, revoked, or suspended the title.” TEX. TRANSP. CODE ANN. § 501.052(b),(d). The county

assessor-collector must immediately notify TxDMV of the hearing date. Id. § 501.052(a); Ferrell,
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                                                                                     04-14-00414-CV


2011 WL 6415155, at *4. At the hearing, both parties may submit evidence. TEX. TRANSP. CODE

ANN. § 501.052(c). The county assessor-collector may determine whether TxDMV correctly

revoked a vehicle title, and its “determination . . . is binding on the applicant and [TxDMV].” Id.

§ 501.052(d).

       The provision’s plain language is clear: assuming any applicable statutory prerequisites are

met, see Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511–12 (Tex. 2012) (statutory

prerequisites), the county assessor-collector may review TxDMV’s decision to refuse to issue a

title or to revoke an issued title, and the assessor-collector’s determination regarding the

correctness of TxDMV’s decision is binding on the applicant and TxDMV, TEX. TRANSP. CODE

ANN. § 501.052(d). This straightforward construction “give[s] effect to the Legislature’s intent as

expressed by the language of the statute.” City of Rockwall, 246 S.W.3d at 625; accord Koseoglu,

233 S.W.3d at 845 (“This construction is supported not only by the plain language of [the statute],

but also by its logical application.”). It also prevents a potentially endless loop of submitted,

rejected, and resubmitted applications. See City of Rockwall, 246 S.W.3d at 625–26 (eschewing

constructions yielding absurd results); Mega Child Care, 145 S.W.3d at 177 (same).

       Therefore, we hold that section 501.052 authorizes a county assessor-collector to review

the correctness of TxDMV’s decision to refuse to issue or to rescind, cancel, revoke, or suspend a

vehicle’s title, and the assessor-collector’s determination is binding on the applicant and TxDMV.

See TEX. TRANSP. CODE ANN. § 501.052; Ferrell, 2011 WL 6415155, at *4.

       5.       Appellate Review of Assessor-Collector’s Determination

       Although the assessor-collector’s determination is binding, the statute establishes a process

to review the assessor-collector’s determination.




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               a.      Applicant’s Right of Appeal

       If the applicant is aggrieved by the assessor-collector’s determination, the applicant may

appeal to a county or district court. TEX. TRANSP. CODE ANN. § 501.052(e); Ferrell, 2011 WL

6415155, at *3. If the applicant prevails, TxDMV must “promptly issue a title for the vehicle.”

TEX. TRANSP. CODE ANN. § 501.052(e). The statute does not specify what type of title TxDMV

must issue, but the legislature’s intent seems clear: TxDMV must issue the type of title as

determined by the trial court subject to the limitations of section 501.0521.               See id.

§§ 501.052(d),(e), .0521.

       If we were to ignore the plain language and conclude that TxDMV retained final authority

over the vehicle title, such a construction could produce an absurd result. See City of Rockwall,

246 S.W.3d at 625–26 (eschewing constructions yielding absurd results); Mega Child Care, 145

S.W.3d at 177 (same). If the applicant prevailed in the trial court, TxDMV could nevertheless

unilaterally vitiate the legislature’s expressly established remedy. See TEX. TRANSP. CODE ANN.

§ 501.052(d),(e) (remedy).

               b.      No TxDMV Right of Appeal

       Although the legislature expressly created a right for an aggrieved applicant to appeal the

assessor-collector’s determination, the statute’s plain language contains no corresponding right for

TxDMV. TEX. TRANSP. CODE ANN. § 501.052(e).

       The protections for TxDMV’s position are provided in the assessor-collector hearing

process. The assessor-collector must notify TxDMV of the date of the hearing, the assessor-

collector must hold the hearing, TxDMV must have an opportunity to present evidence, and

TxDMV’s right to appear and argue is implicit. See id.

       Nevertheless, the statute does not authorize TxDMV to appeal the assessor-collector’s

determination, and we are left to conclude that the legislature’s omission was intentional. TGS-
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                                                                                       04-14-00414-CV


NOPEC, 340 S.W.3d at 439; Laidlaw Waste Sys., 904 S.W.2d at 659. We presume the legislature

acted reasonably when it created the assessor-collector review process which vests, with respect

to TxDMV, the final determination for vehicle titles in the county assessor-collector. See TEX.

TRANSP. CODE ANN. § 501.052; Entergy, 282 S.W.3d at 455–56 (Hecht, J., concurring) (citing

TEX. GOV’T CODE ANN. § 311.021) (intending reasonable result). We recognize that under certain

circumstances this construction transfers final authority over a vehicle’s title from TxDMV to the

assessor-collector, but the provision’s plain language yields no other result, and the result is

consistent with another provision. See City of Rockwall, 246 S.W.3d at 625–26; Mega Child Care,

145 S.W.3d at 177. Specifically, the legislature also transferred final authority over the vehicle’s

title to the county or district court if the applicant appeals the assessor-collector’s determination.

See TEX. TRANSP. CODE ANN. § 521.052(e); Ferrell, 2011 WL 6415155, at *4. Recently, the

legislature narrowed the trial court’s authority for certain vehicles, but it otherwise left the final

authority on an applicant’s appeal from the assessor-collector’s determination with the trial court.

TEX. TRANSP. CODE ANN. § 521.0521 (prohibiting the trial court from ordering TxDMV “to change

the type of title” for certain vehicles); see Ferrell, 2011 WL 6415155, at *4.

       6.      Construing Section 501.052

       Considering the plain language of the statute and reading it as a whole, we hold that under

section 501.052, if the assessor-collector decides TxDMV’s revocation under section 501.051 was

incorrect, TxDMV’s attempted revocation is void, and the previously issued title remains in effect.

See TEX. TRANSP. CODE ANN. § 501.052. We further hold that if the assessor-collector decides

TxDMV’s refusal to issue a title under section 501.051 was incorrect, TxDMV must issue a title

of the type determined by the assessor-collector, unless the applicant appeals the assessor-

collector’s determination to the county or district court. See id. §§ 501.052, .0521. Finally, we

hold that in the event an applicant appeals the assessor-collector’s determination to the county or
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district court, section 501.052 requires TxDMV to promptly issue a vehicle title as ordered by the

trial court subject to the limitations of section 501.0521. See id.

G.     Effect of Section 501.0521

       Section 501.0521—which became effective on September 1, 2013—bars the trial court

from ordering certain relief. It reads as follows:

       (a) A justice of the peace or municipal court judge may not issue an order related
           to a title except as provided by Chapter 47, Code of Criminal Procedure, or
           Section 27.031(a)(3), Government Code.
       (b) A county or district court judge may not order the department to change the
           type of title for:
           (1) a nonrepairable vehicle titled after September 1, 2003; or
           (2) a vehicle for which the department has issued a certificate of authority
                under Section 683.054.

Act of May 26, 2013, 83d Leg., R.S., ch. 1135, § 53, 2013 Tex. Gen. Laws 2705, 2715 (codified

at TEX. TRANSP. CODE ANN. § 501.0521 (West Supp. 2014)). Section 501.0521 became effective

on September 1, 2013. Id. § 144, at 2737 (“Except as provided by Subsection (b) of this section,

this Act takes effect September 1, 2013.”). Section 501.0521 prevents a trial court from ordering

TxDMV to change the type of title for certain vehicles, but it does not prevent a county assessor-

collector from changing the type of title issued by TxDMV. TEX. TRANSP. CODE ANN. § 501.0521.

       We hold section 501.0521 does not vitiate section 501.052’s provision that binds TxDMV

by the county assessor-collector’s determination. Id. § 501.052(d). We also hold section 501.0521

does not prevent the trial court from ordering TxDMV to comply with the county assessor-

collector’s determination including ordering TxDMV to issue a title in accordance with the

determination. See id. §§ 501.052, .0521.

H.     Trial Court Properly Denied Plea

       Having construed the statute, we turn to the facts of this case. Here, Pinnacle applied to

BCTAC for three titles, TxDMV issued the titles, but subsequently revoked them. See TEX.


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TRANSP. CODE ANN. § 501.051. Pinnacle also applied for a title to the 2008 Chrysler Sebring, but

TxDMV refused to issue a marketable title. See id. Pinnacle sought a hearing before BCTAC,

and BCTAC conditionally agreed that all four vehicles should receive rebuilt salvage titles. 8 See

id. § 501.052. Subsequently, TxDMV refused to issue marketable titles to the four vehicles.

Contra id.

         Under our holdings above, if the statutory prerequisites were met, TxDMV was bound by

BCTAC’s determination, and it had no right of appeal from that determination.                               See id.

Specifically, if BCTAC determined TxDMV incorrectly refused to issue the 2008 Chrysler Sebring

title and incorrectly revoked the three issued titles, and Brewster acted contrary to that

determination, she may have done so without legal authority. See id.

         Taking Pinnacle’s evidence as true and making all reasonable inferences in its favor, see

Miranda, 133 S.W.3d at 228, we conclude Pinnacle raised a genuine issue of material fact on

whether the ultra vires exception applies, see Sefzik, 355 S.W.3d at 620; Heinrich, 284 S.W.3d at

372. Therefore, Brewster failed to meet her burden to conclusively disprove any waiver of her

immunity, and the trial court properly denied her plea to the jurisdiction. See Miranda, 133 S.W.3d

at 227–28.

                                                  CONCLUSION

         When the Texas Department of Motor Vehicles refused to issue or revoked vehicle titles

under section 501.051 of the Texas Transportation Code, section 501.052 authorized Pinnacle to

seek review of TxDMV’s decisions regarding the vehicle titles. As Pinnacle has pled, the Bexar




8
  The parties refer to a hearing before BCTAC, but the appellate record contains no transcript of the hearing nor any
written finding or conclusion from the hearing. The record from appeal number 04-13-00496-CV contains a copy of
the October 18, 2011 “Full and Final Release” signed by Richard Roicki on behalf of Pinnacle Motors and by counsel
for Bexar County. The release includes the terms of the settlement but does not contain express findings, conclusions,
or determination of BCTAC.

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County Tax Assessor-Collector held a hearing in accordance with section 501.052, and BCTAC

determined the title questions in Pinnacle’s favor.

       Based on our holdings above, and assuming any statutory prerequisites were met,

BCTAC’s determination is binding on TxDMV. Taking Pinnacle’s evidence as true and making

all reasonable inferences in its favor, we conclude Pinnacle raised a genuine issue of material fact

as to whether Brewster acted without legal authority by allegedly disregarding BCTAC’s

determination. Therefore, the ultra vires exception to immunity may apply, and the trial court did

not err in denying Brewster’s plea to the jurisdiction.

       We affirm the trial court’s order.


                                                   Patricia O. Alvarez, Justice




                                                - 14 -
