      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00288-CV



                      Texas Society of Professional Engineers, Appellant

                                                  v.

                         Texas Board of Architectural Examiners and
                        Cathy Hendricks, Executive Director, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
       NO. D-1-GN-07-001843, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Texas Society of Professional Engineers appeals from the trial court’s grant of

the plea to the jurisdiction filed by the Texas Board of Architectural Examiners (TBAE) and

Executive Director Cathy Hendricks. Because we conclude there was no error in the trial court’s

order granting the plea to the jurisdiction, we affirm the order.


                                         BACKGROUND

               The Society filed suit against the TBAE and its executive director seeking declaratory

and injunctive relief that would preclude the TBAE from initiating enforcement proceedings against

licensed engineers for alleged violations of the Architecture Practice Act.1 By its suit, the Society




       1
         The Architecture Practice Act is codified in chapter 1051 of the Texas Occupations Code.
See Tex. Occ. Code Ann. §§ 1051.001-.701 (West 2004 & Supp. 2008).
sought declarations under the Uniform Declaratory Judgments Act, Texas Civil Practice and

Remedies Code, sections 37.001 through 37.011,2 and the Administrative Procedure Act (APA),

Texas Government Code, section 2001.038,3 that:


       !        “comprehensive building design” is within the scope of engineering, or, in the
                alternative, not per se outside the scope of engineering;

       !        engineers are exempt from the Architecture Practice Act;

       !        the TBAE lacks jurisdiction over engineers;

       !        the Texas Board of Professional Engineers (TBPE) has exclusive original or,
                in the alternative, primary jurisdiction over the regulation of engineers; and

       !        TBAE Rules 1.210-.217 and unpublished rules “Architect or Engineer: Who
                prepares the plans?” do not apply to engineers, or, in the alternative, are
                invalid on substantive and/or procedural grounds.


                In addition to these declarations, the Society sought injunctive relief:


       !        enjoining the TBAE from bringing an action against a licensed engineer
                without first submitting a complaint to the TBPE and receiving a
                determination that the alleged action is either not within the scope of practice
                of an engineer or is outside the education, training, and other qualifications
                of that particular engineer;

       !        enjoining the TBAE from bringing actions against a licensed engineer based
                on an allegation that the engineer engaged in “comprehensive building
                design”; and/or

       !        enjoining the TBAE from attempting to prescribe the education, training, and
                other qualifications necessary for an engineer to engage in building design.



       2
           Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008).
       3
           Tex. Gov’t Code Ann. § 2001.038 (West 2000).

                                                   2
                The TBAE filed a plea to the jurisdiction arguing that the trial court lacked

jurisdiction because the Society’s claims were not cognizable under the UDJA and the Society had

failed to plead a justiciable controversy. The TBAE also argued that the Society’s claims were not

ripe and that the Society lacked standing. In addition, to the extent the Society was seeking judicial

declarations regarding individual suits then pending before the State Office of Administrative

Hearings, the TBAE argued that the Society had failed to exhaust administrative remedies.

Alternatively, the TBAE argued that the doctrine of primary jurisdiction applied and the trial court

should decline to exercise jurisdiction.

                The trial court held a hearing to consider the TBAE’s plea to the jurisdiction. After

the hearing, the trial court granted the TBAE’s plea in part and denied it in part. The trial court held

that it lacked jurisdiction over the Society’s claims except for those claims challenging the validity

of the TBAE’s rules under section 2001.038 of the APA. See Tex. Gov’t Code Ann. § 2001.038

(West 2000). The Society filed an interlocutory appeal in this Court challenging the trial court’s

order granting in part the TBAE’s plea to the jurisdiction. The TBAE does not appeal the

trial court’s assertion of jurisdiction under APA section 2001.038. See id.


                                           DISCUSSION

                The Society argues that the trial court erred in granting the TBAE’s plea to the

jurisdiction. For the following reasons, we conclude there was no error in the trial court’s order.




                                                   3
Standard of Review

               We review the trial court’s ruling on a plea to the jurisdiction de novo. Texas Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). A plea to the jurisdiction is

a dilatory plea that contests the trial court’s authority to determine the subject matter of the cause

of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). When a plea to the

jurisdiction challenges the pleadings, we must determine if the pleader has alleged sufficient facts

to affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). To make this determination, we look

to the pleader’s intent, construe the pleadings liberally in favor of jurisdiction, and accept

the allegations in the pleadings as true. Id. Where the pleadings do not allege sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate an

incurable jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiffs should be

given an opportunity to amend. Miranda, 133 S.W.3d at 227. If the pleadings affirmatively negate

the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiffs an opportunity to amend. Id.


Regulation of Engineers and Architects in Texas

               Like many other states, Texas has imposed distinct regulatory schemes to regulate

the practice of architecture and engineering. See Tex. Occ. Code Ann. §§ 1051.001-.801 (West 2004

& Supp. 2008) (Architecture Practice Act) (regulating architects and the practice of architecture);

Tex. Occ. Code Ann. §§ 1001.001-.601 (West 2004 & Supp. 2008) (Texas Engineering Practice Act)

(regulating engineers and the practice of engineering); see also National Council of Architectural


                                                  4
Registration Boards, Practice Requirements for NCARB Member Boards, available at

http://www.ncarb.org/stateboards/MBRfaqpractice.asp (surveying states, territories, and other

jurisdictions to determine overlap and distinctions between practice of architecture and practice

of engineering). Also like many other states, Texas has recognized that certain areas of practice

overlap between the two professions. See Act of May 31, 2003, 78th Leg., R.S., ch. 331, § 1.04,

2003 Tex. Gen. Laws 1425, 1427 (TBAE); Act of May 31, 2003, 78th Leg., R.S., ch. 1168, § 2, 2003

Tex. Gen. Laws 3307, 3308 (TBPE).

               In 2003, both the TBPE and the TBAE went through sunset review. While the

legislature determined that both agencies should continue as independent boards, the legislature

created the Joint Advisory Committee to “work to resolve issues that result from the overlap between

activities that constitute the practice of engineering and those that constitute the practice of

architecture.” Tex. Occ. Code Ann. §§ 1001.216(d) (TBPE), 1051.212(d) (TBAE). In 2005, the

Joint Advisory Committee issued an opinion addressing the “historical disagreement between the

respective Boards concerning the statutory authority over comprehensive building design.” See

Texas Att’y Gen. Op. GA-0391 (Jan. 10, 2006) (citing Joint Advisory Committee on the Practice of

Engineering and Architecture, Building Design Joint Advisory Opinion (Apr. 7, 2005)). Later

that same year, the TBPE issued its own advisory opinion. See TBPE, Policy Advisory Opinion

Regarding Building Design (June 1, 2005), 30 Tex. Reg. 3461-62 (2005). The TBPE opinion

concluded that the practice of engineering included building design and, therefore, building design

“may be performed exclusively by a licensed professional engineer competent in this field.” Id.




                                                 5
Lack of Standing

               Through its lawsuit and appeal to this Court, the Society seeks a judicial

determination of the longstanding dispute over which agency has authority to regulate professionals

in the two categories and whether either agency has authority to regulate professionals in the other

category—i.e., whether the TBAE has authority to regulate engineers and vice versa. The Society

contends that the trial court had subject-matter jurisdiction to decide the Society’s claims under

the UDJA. We disagree.

               The UDJA is a remedial statute that neither creates nor augments subject-matter

jurisdiction in a trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (West 1997); Chenault

v. Phillips, 914 S.W.2d 140, 143 (Tex. 1996); see also Texas Ass’n of Bus., 852 S.W.2d at 444. An

action under the UDJA will not lie unless there is (1) a justiciable controversy regarding the

rights and status of the parties before the court for adjudication; and (2) the declaration sought

will actually resolve that controversy. Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163 (Tex. 2004);

Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995). Here, this is

essentially a question of standing. See Garcia, 893 S.W.2d at 517-18; Texas Ass’n of Bus.,

852 S.W.2d at 444.

               Because the Society is an association suing on behalf of its individual members,

we must consider the question of associational standing. The Society does not dispute that it must

establish standing in order to invoke the jurisdiction of the district court, but the Society fails to

acknowledge the proper test for associational standing. Citing Brown v. Todd, 53 S.W.3d 294, 305

(Tex. 2001), the Society argues that it may establish associational standing by demonstrating that its



                                                  6
members satisfy the general test for individual standing. Contrary to the Society’s suggestion,

individual standing alone does not equate to associational standing; it is merely one element of the

test for associational standing.

               The test for associational standing was established by the supreme court in

Texas Association of Business v. Texas Air Control Board. See 852 S.W.2d at 447. Under this test,

“an 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.’” Id. (quoting Hunt v. Washington State Apple

Comm’n, 432 U.S. 333, 343 (1977)). Applying this test to the case before us, we conclude that the

Society lacks standing to pursue the relief it seeks in this case.

               The first prong of the test for associational standing requires that the Society

demonstrate that its members have standing to sue in their own behalf. See id. The TBAE urges that

the Society failed to satisfy this prong. The purpose of this prong “is simply to weed out plaintiffs

who try to bring cases, which could not otherwise be brought, by manufacturing allegations of

standing that lack any real foundation.” Id. (quoting New York State Club Ass’n v. City of New York,

478 U.S. 1, 9 (1988)). The record before us demonstrates that members of the Society have been

the subject of administrative proceedings initiated by the TBAE for alleged violations of the

Architectural Practice Act. Although none of these matters has resulted in a penalty being imposed

against any member of the Society, the pleadings demonstrate that the Society’s members are at risk

of penalty. See Tex. Occ. Code Ann. §§ 1051.451-.452 (allowing imposition of administrative



                                                   7
penalty and setting amount of penalty). Because the risk of penalty is sufficient, see Texas Ass’n of

Bus., 852 S.W.2d at 447, we conclude that the Society satisfies the first prong of the test for

associational standing.

               The second prong of the test requires the Society to demonstrate that the interests it

seeks to protect are germane to the Society’s purpose. See id. The Society’s pleadings state that the

mission of the Society “is to promote the ethical, competent and licensed practice of engineering,

and to enhance the professional, social and economic well being of its members.” We conclude that

the interests the Society seeks to protect are germane to its purpose and that the second prong is met.

               Under the third and final prong of this test, the Society “must demonstrate that neither

the claim asserted nor the relief requested require the participation of individual members in the

lawsuit.” See id. at 448. In Texas Association of Business, the supreme court recognized that where

an association by its suit “seeks only prospective relief, raises only issues of law, and need not prove

the individual circumstances to obtain that relief,” the third prong of the test is met. Id. Applying

these requirements to the case before us, we conclude the Society fails to satisfy the third prong of

the test for associational standing.

               Here, unlike in Texas Association of Business, the Society does not seek only

prospective relief. While its UDJA claims are couched in terms of declaratory and injunctive relief,

its pleadings demonstrate that the Society seeks judicial declarations and injunctions that will be

applied in cases pending before SOAH.4 The Society thus seeks an end run around the requirement


       4
         In May 2007, the TBAE initiated contested case proceedings under the APA against three
licensed engineers. See Tex. Occ. Code Ann. § 1051.401 (West 2004); Tex. Gov’t Code Ann.
§§ 2001.003(1), .051 (West 2000).

                                                   8
to exhaust administrative remedies in favor of a determination applicable to all of its members under

any circumstances—past, present, or future.

               Likewise, we conclude that the Society’s requests for declaratory and injunctive relief

do not present pure issues of law. The area of overlap between these two professions has been

squarely addressed by the legislature and requires a fact-intensive analysis. The legislature has

delegated authority to the TBAE to regulate the practice of architecture and to the TBPE to regulate

the practice of engineering. See Tex. Occ. Code Ann. §§ 1001.003, .004, .201 (defining practice of

engineering; describing legislative intent and purpose; and delegating enforcement authority to

the TBPE); id. §§ 1051.001(7), .0015, .501 (defining practice of architecture; describing legislative

purpose; and delegating enforcement authority to TBAE). The legislature has defined what is

included within “the practice of architecture” and “the practice of engineering.” Id. §§ 1001.003,

1051.001(7). And the legislature has provided statutory exemptions for each profession. Id.

§§ 1001.063 (providing exemption from Texas Engineering Practice Act for architects practicing

architecture), 1051.601 (providing exemption from Architecture Practice Act for engineers practicing

engineering). By delegating each board the authority to regulate the practice of each profession,

defining “the practice of architecture” and “the practice of engineering,” and providing statutory

exemptions for both professions, it is clear that the legislature intended for each board to consider

whether the particular conduct at issue meets the statutory definition of each profession and whether

an exemption applies. Such an inquiry is fact-intensive and can only be done on a case-by-

case basis.




                                                 9
               As part of its declaratory relief, the Society seeks declarations under the UDJA that

“comprehensive building design” is within the scope of engineering, that engineers are exempt from

the Architectural Practice Act, that the TBAE lacks jurisdiction over engineers, and that the TBPE

has exclusive original or, in the alternative, primary jurisdiction over the regulation of engineers.

The Society also seeks injunctive relief to preclude the TBAE from initiating enforcement

proceedings against licensed engineers for the alleged violation of the Architecture Practice Act.

Although the Society urges that these claims present only questions of law and a resolution of this

case will provide “general” relief to its members, upon further inquiry, it becomes clear that it will

be necessary to review the particular conduct of the engineer at issue to determine whether

comprehensive building design falls within the practice of architecture or whether the particular

conduct of an engineer is exempt from the Architectural Practice Act.5 In order to obtain the relief

sought, it will thus be necessary to prove the individual circumstances of the Society’s members.

For this reason, we conclude the Society fails the third prong of the test for associational standing

and, therefore, lacks standing to pursue the declaratory and injunctive relief it seeks.

               In support of its claim that it has standing to pursue this suit on behalf of its members,

the Society relies on this Court’s decision in Texas State Board of Podiatric Medical Examiners

v. Texas Orthopaedic Association, No. 03-04-00253-CV, 2004 Tex. App. LEXIS 10031, at *4-11




       5
           As the attorney general has recognized, the Architecture Practice Act contains an
exemption for licensed engineers to the extent they perform acts, services, or works within the scope
of the practice of engineering. See Tex. Att’y Gen. Op. GA-0391 (Jan. 10, 2006) (citing Tex. Occ.
Code Ann. § 1051.601 (West 2004)). But, in order to determine whether the exemption applies, one
must examine the individual acts, services, or works provided to determine if they fall within the
practice of engineering.

                                                  10
(Tex. App.—Austin 2004, no pet.). The Society’s reliance on Texas State Board of Podiatric

Medical Examiners is misplaced. In that case, this Court concluded that the Texas Orthopaedic

Association had standing under section 2001.038 of the government code to challenge a rule

promulgated by the Board. Id. at *9-11. Applying the test for associational standing established by

the supreme court in Texas Association of Business, this Court concluded that all three prongs were

met and, more specifically, that the Texas Orthopaedic Association’s request for a declaration that

the Board’s rule was invalid presented a question of law that did not require the participation of

individual members.6 Id. at *10-11. Because we have determined that the Society’s claims for

declaratory and injunctive relief—excluding the Society’s challenges to the validity of TBAE rules

under government code section 2001.038, see note 6, supra—will require the participation of

individual members, this Court’s decision in Texas State Board of Podiatric Medical Examiners is

distinguishable.

               The case of Reconveyance Services v. Texas Department of Insurance, 240 S.W.3d

418 (Tex. App.—Austin 2007, pet. filed), is likewise inapposite. In that case, a corporation

challenged the Department’s authority to regulate specific business practices in Texas. See id. at 426

(alleging that nothing gives the Department authority to prohibit companies from offering

Reconveyance’s post-closing mortgage release services).          Unlike the Society in this case,

Reconveyance was not required to establish associational standing. See generally id. This Court’s




       6
           We observe that the trial court denied the TBAE’s plea to the jurisdiction regarding the
Society’s validity challenges to the Board’s rules under section 2001.038 of the government code,
and those claims remain pending below. The TBAE has not challenged this partial denial of its plea
to the jurisdiction on appeal.

                                                 11
holding in that case is thus irrelevant to the question before us—namely, whether the Society has

satisfied the test for associational standing.

                Having concluded that the Society lacks standing to pursue the relief it seeks, we find

no error in the trial court’s order granting the TBAE’s plea to the jurisdiction with regard to the

Society’s claims for declaratory and injunctive relief under the UDJA, and we decline to reach the

Society’s remaining arguments in support of its claim that the trial court erred in granting the

TBAE’s plea to the jurisdiction. See Tex. R. App. P. 47.1.


                                           CONCLUSION

                Finding no error in the trial court’s order, we affirm.




                                                 __________________________________________

                                                 Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: October 24, 2008




                                                   12
