Appellant’s Motion for Rehearing Overruled; Opinion of August 13, 2015
Withdrawn; Reversed and Rendered and Substitute Memorandum Opinion
filed November 10, 2015.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-14-00617-CV

   SANDS L. STIEFER, CHIEF APPRAISER OF THE HARRIS COUNTY
                 APPRAISAL DISTRICT, Appellants

                                        V.
             EDWARD MOERS AND DANIEL MOERS, Appellees

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-58215

      SUBSTITUTE MEMORANDUM OPINION

      We overrule appellant’s motion for rehearing, withdraw our memorandum
opinion issued August 13, 2105, and issue this substitute memorandum opinion.

      Appellees, Edward and Daniel Moers (the “Moerses”), sued Harris County
Appraisal District, Chief Appraiser of Harris County Appraisal District, Sands L.
Stiefer, and the Harris County Appraisal Review Board to protest the denial of the
Moerses’ applications for open-space land appraisal. Appellant, Sands L. Stiefer
(“Stiefer”), filed a plea to the jurisdiction and motion to dismiss, which the trial court
granted in part, and denied in part. In one issue, Stiefer appeals that portion of the
order denying his plea to the jurisdiction and motion to dismiss. We reverse and
render.

                                   I. BACKGROUND

      The Moerses own and reside on two non-contiguous tracts of land in Cypress,
Texas. They claim to have begun an agricultural enterprise consisting of raising
organic, grass-fed sheep.     The Moerses claim that their land should have been
appraised at special, lower values available only to agricultural land (“open space”
appraisal or valuation) under Article VIII, section 1-d-1 of the Texas Constitution and
Texas Tax Code Section 23.51. See Tex. Const. art. VIII, § 1-d-1; Tex. Tax Code
Ann. § 23.51 (West 2015). Harris County Appraisal District denied the Moerses’
application to have their land appraised at the lower values available to “open-space”
land. The Moerses protested the denial to the Harris County Appraisal Review
Board. The Harris County Appraisal Review Board denied their protest.

      The Moerses sued the Harris County Appraisal District, the Harris County
Appraisal Review Board and Stiefer, appealing the denial of their protest to the
valuation of their properties for tax years 2013 and 2014. They also sought to compel
Stiefer to comply with the procedures set forth in Texas Tax Code Section 42.21
regarding an order issued in a prior lawsuit. See Tex. Tax Code Ann. § 42.21 (West
2015).

      Stiefer filed a plea to the jurisdiction and motion to dismiss asserting immunity
and arguing that the Moerses did not allege a valid waiver of immunity, the Tax Code
does not waive immunity or authorize a suit against him, and the Declaratory
Judgment Act may not be used to avoid the exclusive remedies of the Tax Code. See

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Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq. (West 2015); Tex. Tax Code
Ann. § 42.09(a) (West 2015).

      The trial court granted Stiefer’s plea to the jurisdiction and motion to dismiss
on the Moerses’ claims relating to judicial review of the valuation set by the Harris
County Appraisal Review Board. The trial court denied the plea to the jurisdiction
and motion to dismiss as to the Moerses’ claims of constitutional violations, denial of
due process, request for declaratory relief, and injunctive relief based on ultra vires.

                                      II. ANALYSIS

      In his sole issue, Stiefer contends the trial court erred in denying his plea to the
jurisdiction and motion to dismiss.

A.    Standard of Review

      A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “A trial court must
grant a plea to the jurisdiction . . . when the pleadings do not state a cause of action
upon which the trial court has jurisdiction.” Harris Cnty. v. Sykes, 136 S.W.3d 635,
639 (Tex. 2004). Whether a court has jurisdiction is a question of law which we
review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

      In reviewing an order on a plea to the jurisdiction, we consider the pleadings
and factual assertions, as well as evidence in the record that is relevant to the issue of
jurisdiction. Klumb v. Municipal Employees Pension System, 458 S.W.3d 1, 8 (Tex.
2015) (citing City of Elsa v. Gonzalez, 325 S.W.3d 547, 554 (Tex. 2010)). The
plaintiff bears the burden of pleading specific allegations of fact which affirmatively
demonstrate the trial court’s jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993); see also Tex. Dept. of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the evidence creates a fact question


                                            3
on jurisdiction, the trial court must deny the plea and the trier of fact must resolve the
issue. Id. at 227–28. If the evidence is undisputed or if the plaintiff fails to raise a
fact question as to jurisdiction, the trial court rules on the plea as a matter of law. Id.
at 228. In reviewing the plea, we do not consider the merits of the case. County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

B.     Governing Law

       As noted above, the Moerses’ complaints relate to open-space land appraisal.
To qualify for this type of appraisal, the property owner is required to demonstrate
that the land is currently devoted principally to agricultural use to the “degree of
intensity” generally accepted in the area and that it has been devoted principally to
agricultural use or to production of timber or forests for five of the preceding seven
years. See Tex. Tax Code Ann. § 23.51(1). Section 23.57(a), (c) grants authority to
the chief appraiser to determine open-space land appraisal. See Id. § 23.57 (a), (c)
(West 2015). The Legislature delegated to the Comptroller of Public Accounts the
authority to establish eligibility standards, which are contained in appraisal manuals.
See id. § 23.55(d) (West 2015).            For particular use with agricultural land, the
Comptroller created the Manual for the Appraisal of Agricultural Land (the
“Manual”), which has the force and effect of law. See 34 Tex. Admin. Code § 9.4001
(1990); Pizzitola v. Galveston Cnty. Cent. Appraisal Dist., 808 S.W.2d 244, 248
(Tex. App.—Houston [1st Dist.] 1991, no pet.) (citing General Elec. Credit Corp. v.
Smail, 584 S.W.2d 690, 694 (Tex. 1979)).1

       The Moerses protested to the appraisal review board the denial of open-space
appraisal.    The review board denied their protests.            In their suit appealing the
determination of the review board, Moerses sued the appraisal review board and

       1
              The        Manual        can      be      found    in     its    entirety   at
http://comptroller.texas.gov/taxinfo/proptax/agland/part1.pdf.

                                                 4
Stiefer, in his official capacity. The Moerses argued that their claims avoided the
exclusive remedies of the Tax Code; thus, immunity did not attach and their claims
against Stiefer should not be dismissed. The Moerses pled bases for waiver of
immunity existed under the Declaratory Judgment Act, Stiefer committed ultra vires
acts and his actions constituted violations of the Moerses’ constitutional rights.
Stiefer filed a plea to the jurisdiction asserting immunity, claiming that the Moers did
not plead a waiver of immunity.

B.         Declaratory Judgment

           The Moerses alleged several grounds for relief pursuant to the Uniform
Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq.
They requested that the trial court declare that Stiefer2 imposed “degree of intensity
guidelines or rules for open-space land eligibility relating to tax years 2013 and 2014,
in violation of constitutional and statutory requirements for agricultural appraisal
which are neither valid nor enforceable.” They contended that Stiefer added other
requirements for property owners of open-space land to achieve an agricultural
appraisal which are inconsistent with the requirements of the Texas Constitution, the
Tax Code and the Manual. The Moerses further alleged that Stiefer “improperly set
arbitrary minimum conditions that must be met by a property owner to meet the
degree of intensity test required for 1-d-1 agricultural appraisal.” In sum, although
phrased as declaratory relief, the relief the Moerses seek is a change to their
assessments—not a declaration that the controlling provisions are unconstitutional.

           A change to an assessment of taxes on the Moerses’ land is one subject to the
provisions of the Tax Code. See Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 622
(Tex. 2011) (holding where actions under a statute are challenged, but the

           2
               The Moerses made these allegations against both Harris County Appraisal District and
Stiefer.

                                                   5
constitutionality of the statute is not, declaratory judgment action does not waive
immunity); see also Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex.
2006) (per curiam) (requiring adherence to Tax Code’s administrative framework
when taxpayer seeks to set aside tax assessments but not when asserting purely
constitutional challenges); Harris Cnty. Appraisal Dist. v. ETC Marketing, Ltd., 399
S.W.3d 364, 368 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that
taxpayer who urges a constitutional challenge and also seeks to set aside tax
assessments is not relieved from exhausting administrative remedies).

      In sum, we conclude that the Moerses’ declaratory judgment action does not
state a waiver of governmental immunity. Further, to the extent that the Moerses
seek retrospective relief, those claims are controlled by the exclusive remedies of the
Tax Code, which does not authorize suit against Stiefer. “Any other petition for
review under this chapter must be brought against the appraisal district. . . .” See
Tex. Tax Code Ann. § 42.21(b); Rourk, 194 S.W.3d at 502.

C.    Ultra Vires

      Because a state official’s illegal or unauthorized acts are not acts of the State,
governmental immunity is waived with respect to those acts. See Fed. Sign v. Tex. S.
Univ., 951 S.W.2d 401, 404 (Tex. 1997). “A suit asserting that a government officer
acted without legal authority or seeking to compel him to comply with statutory or
constitutional provisions is an ultra vires suit and is not subject to pleas of
governmental immunity.”        Lone Star College System v. Immigration Reform
Coalition of Tex. (IRCOT), 418 S.W.3d 263, 272 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.
2009)). The ultra vires suit seeks to enforce existing policy, not to alter it. Id. The
ultra vires exception to governmental immunity depends upon a plaintiff’s allegation,
and ultimately proof, that the officer acted without legal authority or that he failed to

                                            6
perform a purely ministerial act. Id. A complaint about how the officer exercised his
discretion is not an ultra vires complaint.        Id.   Additionally, the exception to
immunity allows only prospective declaratory or injunctive relief, not retroactive
relief. Id. (citing Heinrich, 284 S.W.3d at 374–77).

        In support of their ultra vires claim, the Moerses alleged inter alia that Stiefer
violated of the requirements of Tax Code Section 23.52(d) and failed to determine the
“degree of intensity” as required by the Manual for Appraisal of Agricultural Land
(the “Manual”). Further, they requested he be required to comply with the statutory
framework and determine the degree of intensity as outlined by the Manual. See Tex.
Tax Code Ann. § 23.52(d) (West 2015) (setting forth procedure for appraisal of
qualified agricultural land).    They also requested that Stiefer be precluded from
promulgating additional requirements that are contrary to or inconsistent with the
provisions of the Tax Code relating to agricultural appraisal for tax years 2013 and
2014.

        In his plea to the jurisdiction and motion to dismiss, Stiefer asserted the
allegations in the Moerses’ petition did not plead an ultra vires claim because they
were complaints that Stiefer’s actions violated the Tax Code, or were examples of
Stiefer’s alleged failures to follow the statutory framework.

        We conclude that the substance of the Moerses’ allegations is a series of
complaints concerning Stiefer’s actions—not complaints that he acted illegally or
without reference to controlling legal authority. The Moerses’ complaint regarding
Stiefer’s failure to set the degree of intensity is analogous to a claim that he “got it
wrong.” See MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist.
Review Bd., 249 S.W.3d 68, 80–81 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied) (holding “an incorrect agency determination rendered pursuant to the
agency’s authority is not a determination made outside that authority.”)           Stated

                                             7
differently, the Moerses complained that Stiefer reached an incorrect result. Such an
allegation is insufficient to state an ultra vires claim. See Moers v. Harris Cnty.
Appraisal Dist., No. 01-13-00549-CV, 2015 WL 3981735, at *7 (Tex. App.—
Houston [1st Dist.] June 30, 2015, no pet. h.)3 (citing Creedmoor-Maha Water Supply
Corp. v. Tex. Comm’n on Env’t Quality, 307 S.W.3d 505, 517–18 (Tex. App.—
Austin 2010, no pet.)).

       The Moerses also contend that Stiefer utilized guidelines which exceeded those
contemplated by statute; specifically, that Stiefer added standards (which they refer to
as eligibility requirements) for “minimum land area” and “minimum number of
animals.” However, Tax Code Section 23.51 provides that the property owner must
demonstrate land is devoted primarily to agricultural use “to the degree of intensity
generally accepted in the area.” See Tex. Tax Code Ann. § 23.51. Thus, Stiefer’s
identification and use of criteria for the area do not conflict with the statutory scheme
set forth in Section 23.57(a), (c). See Tex. Tax Code Ann. § 23.57 (a), (c); Moers,
2015 WL 3981735, at *5 (stating that the standards do not violate or conflict with the
legislative scheme).

       We hold the Moerses’ complaints do not allege ultra vires activity that would
waive governmental immunity.

D.     Due Process and Constitutional Violations

       In the section of their petition entitled “Denial of Due Process,” the Moerses
contended that the appraisal review board failed to render decisions pursuant to their
protests for tax year 2013 and refused to grant hearings for tax years 2012-2014.
They asserted that immunity was waived under Texas Tax Code Section 41.45(f)
which provides:

       3
           In the Moers case analyzed by the First Court of Appeals, the Moerses challenged the
denial of their open-space land applications for 2010-2012. See Moers, 2015 WL 3981735, at *1.

                                              8
       A property owner who has been denied a hearing to which the property
       owner is entitled under this chapter may bring suit against the appraisal
       review board by filing a petition or application in district court to compel
       the board to provide the hearing. If the property owner is entitled to the
       hearing, the court shall order the hearing to be held and may award court
       costs and reasonable attorney fees to the property owner.
Tex. Tax Code Ann. 41.45(f) (West 2015).

       The relief the Moerses sought relates directly to actions the appraisal review
board failed or refused to take. Section 41.45(f) provides that the Moerses could file
suit to compel the appraisal review board to provide a hearing; however, Section
41.45(f) does not provide for a waiver of sovereign immunity. See id. Rather,
Section 41.45(f) provides that the Moerses are entitled to file a petition against the
appraisal review board to compel the board to provide a hearing and it specifically
provides that the suit is against the appraisal review board, not the chief appraiser.
See id. The Moerses did not allege any violation of due process rights against
Stiefer.4

       Relying on Article VIII, section 1-d-1 of the Texas Constitution and Section
23.51 of the Tax Code, the Moerses also alleged that Stiefer’s actions amounted to
constitutional violations of their right to have their land appraised at the lower open-
space agricultural land value. See Tex. Const. art. VIII, § 1-d-1; Tex. Tax Code Ann.
§ 23.51. While framed as constitutional violations, these are claims that the Moerses’
land should have been appraised in a certain manner in order to obtain a lower
       4
           The Moerses argue that Stiefer did not challenge the due process allegation in the trial
court and it is not preserved for appellate review. We disagree. The allegations in the “due
process” section are substantially similar to the allegations in the remainder of the petition which
were addressed in the plea to the jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 94–96
(Tex. 2012) (holding that even where immunity is first raised on appeal, the appellate court has
jurisdiction to address the merits to be consistent with the purpose of Section 51.014(a) and to
increase judicial efficiency). See also Tex. Civ. Prac. & Rem. Code Ann. 51.014(a) (West 2015);
Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007) (approving consideration of
jurisdictional plea filed by the governmental entity and deciding the question of immunity for the
state official sued in his official capacity who did not file a plea).

                                                 9
amount of taxation. Thus, they are subject to the exclusive remedies of the Tax Code.
See Tex. Tax Code Ann. § 41.41(a)(5), (9) (West 2015); see also Rourk, 194 S.W.3d
at 502; Bauer-Pileco, Inc. v. Harris Cnty. Appraisal Dist., 443 S.W.3d 304, 315 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied) (stating that constitutional violations are
subject to the exclusive remedies of the Tax Code) (citing Aramco Associated Co. v.
Harris Cnty. Appraisal Dist., 33 S.W.3d 361, 364 (Tex. App.—Texarkana 2000, pet.
denied)).

      We conclude that the Tax Code requires that the Moerses bring such
challenges, including allegations of constitutional violations, against the appraisal
district only, not Stiefer; thus, the trial court lacks jurisdiction to consider the
allegations against Stiefer. See Tex. Tax Code Section 42.21(b). We hold that, to the
extent the Moerses asserted due process claims against Stiefer, the trial court erred in
denying his plea to the jurisdiction and motion to dismiss.

      Having addressed the merits, we sustain Stiefer’s sole issue, reverse the trial
court’s order denying his plea to the jurisdiction and motion to dismiss, and render
judgment dismissing for lack of subject-matter jurisdiction all the claims asserted by
Edward and Daniel Moers against Stiefer.




                                       /s/        John Donovan
                                                  Justice


Panel consists of Justices Christopher, Donovan, and Wise.




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