Reversed and Rendered and Majority and Concurring Opinions filed October 15,
2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00823-CV

TEXAS TRANSPORTATION COMMISSION AND TED HOUGHTON, IN
      HIS OFFICIAL CAPACITY AS CHAIR OF THE TEXAS
         TRANSPORTATION COMMISSION, Appellants

                                         V.

                    CITY OF JERSEY VILLAGE, Appellee

                    On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-59338

                   CONCURRING OPINION

      Appellee/plaintiff City of Jersey Village filed suit against the Texas
Transportation Commission and its chair. Under a liberal construction of the
City’s live petition, the City did not assert any ultra vires claims; rather, the City
sought declaratory relief construing certain provisions of Texas Transportation
Code section 203.092, as applied to the City. Because sovereign immunity bars
the City’s declaratory-judgment claims, the trial court should have sustained the
defendants’ plea to the jurisdiction.

            Waiver of Sovereign Immunity in the Declaratory Judgments Act

          Sovereign immunity and governmental immunity1 are common-law
doctrines that initially developed without any legislative or constitutional
enactment.2 Sovereign immunity encompasses immunity from suit and immunity
from liability.3 Immunity from suit bars a suit unless the state has consented, and
immunity from liability protects the state from judgments even if it has consented
to the suit.4         Absent a waiver or exception, sovereign immunity protects
governmental entities from lawsuits for money damages and also from claims for
declaratory or injunctive relief.5 Sovereign immunity from suit deprives a trial
court of subject-matter jurisdiction.6

          Though there is no constitutional or statutory provision requiring that the
Legislature be the source of all waivers of sovereign immunity, Texas courts
traditionally have deferred to the Legislature to waive sovereign immunity because
the Legislature is better suited to address the conflicting policy issues involved.7
Nonetheless, in the absence of a statute conferring sovereign immunity, Texas
courts still have the power to find waivers or exceptions to the common-law

1
 For ease of reference, all future references to “sovereign immunity” will include both sovereign
immunity and governmental immunity. See Reata Const. Corp. v. City of Dallas, 197 S.W.3d
371, 374 n.1 (Tex. 2006).
2
    See Reata Const. Corp., 197 S.W.3d at 374.
3
    Id.
4
    Id.
5
    See id.; City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009).
6
    Reata Const. Corp., 197 S.W.3d at 374.
7
 See Travis Centr. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011); Reata Const.
Corp., 197 S.W.3d at 375.

                                                  2
doctrine of sovereign immunity, even if there is no statute establishing the waiver
or exception.8 Thus, for there to be a waiver of sovereign immunity from suit, in
most casesthe Legislature must have waived immunity from suit as to the claim in
question.9 Both at common law and by statute, for a statute to provide a waiver of
sovereign immunity, the waiver must be effected by clear and unambiguous
statutory language.10

           Under the Texas Declaratory Judgments Act, the Legislature provides that
“[a] person . . . whose rights, status, or other legal relations are affected by a
statute, municipal ordinance, . . . or franchise may have determined any question
of construction or validity arising under the . . . statute, ordinance, . . . or franchise
and obtain a declaration of rights, status, or other legal relations thereunder.”11
Thus, the Legislature provides, among other relief, that a party may seek a
declaratory judgment regarding the construction of a statute or the validity of a
statute.12 When declaratory relief is sought, all “persons” who have or claim any
interest that would be affected by the declaration must be made parties.13 But, the
term “person” as used in the Texas Declaratory Judgments Act does not expressly
include any governmental entities, other than municipal corporations.14 The only
provision of the statute that appears to contain an express waiver of sovereign
8
 See, e.g., Reata Const. Corp., 197 S.W.3d at 374–77 (finding an exception to a governmental
entity’s sovereign immunity in the absence of a statute establishing this exception).
9
 See Travis Centr. Appraisal Dist., 342 S.W.3d at 58; Gatesco, Q.M., Ltd. v. City of Houston,
333 S.W.3d 338, 347 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
10
  See Tex. Gov’t Code Ann. § 311.034 (West 2013); Travis Centr. Appraisal Dist., 342 S.W.3d
at 58; Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994).
11
     Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 2015).
12
     See id.
13
     Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (West 2015).
14
 Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (stating that “[i]n this chapter, ‘person’ means
an individual, partnership, joint-stock company, unincorporated association or society, or
municipal or other corporation of any character”).
                                               3
immunity as to Texas governmental entities15 provides as follows:
           In any proceeding that involves the validity of a municipal
           ordinance or franchise, the municipality must be made a party and
           is entitled to be heard, and if the statute, ordinance, or franchise is
           alleged to be unconstitutional, the attorney general of the state must
           also be served with a copy of the proceeding and is entitled to be
           heard.16

Arguably, the only clear and unambiguous waiver of sovereign immunity in this
statute is a waiver of the sovereign immunity of municipalities in any declaratory-
judgment action involving the validity of a municipal ordinance or franchise.17
Nonetheless, in the Leeper case, the Supreme Court of Texas concluded that the
Texas Declaratory Judgments Act waived sovereign immunity as to governmental
entities that were not municipalities in a case involving declaratory relief regarding
the construction of a statute. The high court based its decision in part upon the
following conclusions:

           The [Declaratory Judgments Act] expressly provides that persons may
           challenge ordinances or statutes, and that governmental entities must
           be joined or notified. Governmental entities joined as parties may be
           bound by a court’s declaration on their ordinances or statutes. The Act
           thus contemplates that governmental entities may be—indeed, must
           be—joined in suits to construe their legislative pronouncements.18

           This language from Leeper supports a conclusion that, in the Declaratory
Judgments Act, the Legislature waived governmental entities’ sovereign immunity
from both claims seeking a declaratory judgment construing a statute and from

15
  Texas Civil Practice and Remedies Code section 37.0055 arguably contains a waiver of
immunity as to officials of a state other than Texas. See Tex. Civ. Prac. & Rem. Code Ann. §
37.0055 (West 2015).
16
     Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (emphasis added).
17
     See id.
18
     Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).

                                                4
claims seeking a declaratory judgment challenging the validity of a statute.19 And,
from 1994 through 2010, the Supreme Court of Texas cited this part of Leeper in
support of each of these propositions.20 In 2011, the high court again cited Leeper
and stated that the Declaratory Judgments Act contains an express waiver of a
governmental unit’s sovereign immunity as to a claim seeking a declaratory
judgment challenging the validity of a statute.21 But, in the same case, the Sefzik
court correctly noted that the Heinrich court concluded that sovereign immunity
barred declaratory-judgment claims against the governmental entities, as opposed
to the governmental actors.22 The Sefzik court indicated that, if the Declaratory
Judgments Act included a waiver of governmental entities’ sovereign immunity
from claims seeking a declaratory judgment regarding the construction of a statute,
then sovereign immunity would not have barred Heinrich’s claims against the
governmental entities.23 Because the Heinrich court concluded that sovereign
immunity barred Heinrich’s declaratory-judgment claims against the governmental
entities, the Sefzik court concluded that the Heinrich court necessarily determined
that the Declaratory Judgments Act does not waive the sovereign immunity of
governmental entities from claims seeking a declaratory judgment regarding the



19
     See id.
20
  See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 633–35 (Tex.
2010) (quoting Leeper language and stating that sovereign immunity is waived as to all
governmental entities as to claims seeking a declaratory judgment construing a statute and claims
seeking a declaratory judgment regarding the validity of a statute, though the court concluded
that the case under review involved only a challenge to the validity of the statute); Heinrich, 284
S.W.3d at 373 n.6 (citing Leeper language and indicating that the Declaratory Judgments Act
waives sovereign immunity as to claims seeking a declaratory judgment regarding the validity of
a statute)
21
     See Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 622 & n.3 (Tex. 2011).
22
     See Sefzik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at 380.
23
     See Sefzik, 355 S.W.3d at 621.

                                                  5
construction of a statute and the plaintiff’s rights under the statute.24 The Sefzik
court noted that, under an ultra vires claim, a plaintiff might be able to effectively
get similar declaratory relief against a governmental official; nonetheless, the
Sefzik court concluded that the Declaratory Judgments Act does not waive the
sovereign immunity of governmental entities from claims seeking a declaratory
judgment regarding the construction of a statute and the plaintiff’s rights under the
statute, abrogating sub silentio the Leeper court’s contrary holding.25 And, this
court is bound to follow the Sefzik court’s pronouncement of the law.26

           In Sefzik the plaintiff sued a governmental entity but had not sued any
governmental actors under an ultra vires claim.27                 Nonetheless, asserting a
particular claim against a governmental actor in his official capacity generally is
the same as asserting that claim against the governmental entity with which the
official is affiliated.28 Therefore, if sovereign immunity bars the City from joining
the Department of Transportation in an action in which the City seeks declaratory
relief regarding the construction of a statute and the City’s rights under the statute,
then sovereign immunity also would bar the City from suing the defendants in this

24
     See id.
25
 See id.; City of San Antonio v. Rogers Shavano Ranch, Ltd., No. 04-13-00623-CV, 2014 WL
631484, at *2–5 (Tex. App.—San Antonio Feb. 19, 2014, pet. denied) (mem. op.); City of
McKinney v. Hank’s Restaurant Group, L.P., 412 S.W.3d 102, 111–12 (Tex. App.—Dallas
2013, no pet.).
26
  See Lubbock County, Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002). The parties have not cited and research has not revealed a high-court case addressing this
issue since Sefzik, and this court’s contrary statement in reliance on a pre-Sefzik case does not
allow this court to ignore Sefzik. See Montrose Management Dist. v. 1620 Hawthorne, Ltd., 435
S.W.3d 393, 404 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Tex. Lottery
Comm’n v. First State Bank of DeQueen and stating that “the [Declaratory Judgments Act]
waives a governmental entity’s immunity for a declaration construing an ordinance or statute”).
27
     See Sefzik, 355 S.W.3d at 620–22.
28
 SeeTex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007); Guthrie v. Garcia,
352 S.W.3d 307, 309 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

                                               6
case unless the City has asserted a proper ultra vires claim against the defendants.29

            Both in the trial court and on appeal, the City has asserted that, even if the
City’s claims are not treated as ultra vires claims, there is a waiver of the
defendants’ sovereign immunity because the City seeks declaratory relief regarding
the construction of a statute and the City’s rights under the statute. Under the
Sefzik precedent, there is no waiver of sovereign immunity for this declaratory-
judgment claim by the City.30

           Scope of the Exception to Sovereign Immunity for an Ultra Vires Claim

            Private parties cannot circumvent the State’s sovereign immunity from suit
by characterizing a suit for money damagesas a declaratory-judgment claim.31 In
contrast to suits not implicating sovereign immunity, declaratory-judgment suits
against state officials seeking to establish a contract’s validity, to enforce
performance under a contract, or to impose contractual liabilities are suits against
the State that are barred by sovereign immunity. 32 On the other hand, ultra vires
claims seeking to require state officials to comply with statutory or constitutional
provisions are not prohibited by sovereign immunity, even if a declaration to that
effect compels the payment of money.33 To fall within this ultra vires exception, a
suit must not complain of a government officer’s exercise of discretion, but rather
must allege, and ultimately prove, that the officer acted without legal authority or
failed to perform a purely ministerial act.34

29
     See Sefzik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at 369–80.
30
     See Sefzik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at 369–80.
31
     Heinrich, 284 S.W.3d at 371.
32
     Id. at 372.
33
     Id.
34
  Id. Earlier this year, the Supreme Court of Texas concluded that an ultra vires claimant may
plead and prove that the government officer acted without legal authority or failed to perform a
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           Ultra vires claims cannot be brought against the state, which retains
immunity, but must be brought against the state actors in their official capacity. 35
This is true even though an ultra vires suit, for all practical purposes, is against the
state.36 Even when ultra vires claims may be brought, the remedy may implicate
immunity.37 Because, for all practical purposes, an ultra vires suit is against the
state, remedies for this suit must be limited.38 The Declaratory Judgments Act
cannot be used to circumvent a governmental entity’s immunity from damages;
retrospective monetary claims are generally barred by immunity. 39 A claimant
who successfully proves an ultra vires claim is entitled to prospective injunctive
relief as measured from the date of the injunction.40 The Heinrich court indicated
that an ultra vires claim would seek a combination of declaratory and injunctive
relief, and the Heinrich court focused more on the injunctive relief available in an
ultra vires claim.41
                       The City’s Failure to Plead an Ultra Vires Claim
           In July 2014, the City filed its live pleading against the Texas Transportation
Commission and its chair (collectively, the “Commission Parties”). The City did
not allege that it was asserting an ultra vires claim. Instead, the City asserted that
it brought suit under the Declaratory Judgments Act and did not seek any


purely ministerial act by anticipatorily refusing to comply with a statutory obligation that
imposes a purely ministerial duty. See Southwestern Bell Telephone, L.P. v. Emmett, 459
S.W.3d 578, 587–89 (Tex. 2015).
35
     See id. at 373.
36
     Id.
37
     Id.
38
     Id. at 374.
39
     Id.
40
     Id. at 376.
41
     Id. at 369–77.

                                              8
injunctive relief at all. The only basis for jurisdiction that the City alleges in the
pleading is the Declaratory Judgments Act. The City alleges that it is entitled to
reimbursement of costs associated with acquisition of replacement utility
easements under Transportation Code section 203.092(a)(2). This statute provides
that “[a] utility shall make a relocation of a utility facility at the expense of this
state if relocation of the utility facility is required by improvement of . . . any
segment of the state highway system and the utility has a compensable property
interest in the land occupied by the facility to be relocated.” 42

          The City alleges that the Commission Parties’ refusal to reimburse the City
for its relocation and land acquisition costs violates Transportation Code section
203.092(a)(2). The City seeks a declaration regarding the proper interpretation of
this statute and requests a declaratory judgment that the city-owned utility
easements are compensable property interests and that the City’s acquisition of
replacement utility easements are among the reimbursement costs “for which the
state ‘shall’ pay, pursuant to Section 203.092 of the Texas Transportation Code.”
The City did not assert any other claim or seek any furtherrelief other than
reasonable and necessary attorney’s fees under the Texas Declaratory Judgments
Act. In its live pleading, the City does not allege that the any of the Commission
Parties acted without legal authority or failed to perform a purely ministerial act.43
Even under a liberal construction of the City’s live pleading, the substance of the
City’s claim is a request for declaratory relief regarding the proper construction of
Texas Transportation Code section 203.092 rather than ultra vires claims against
the Commission Parties.44 Therefore, sovereign immunity bars the City’s claim,

42
     Tex. Transp. Code Ann. § 203.092 (West 2015).
43
     Heinrich, 284 S.W.3d at 372.
44
 Id. at 369–77. The majority relies upon Sefzik to support the majority’s conclusion that the
City pleaded an ultra vires claim. The Sefzik court stated that the plaintiff sought declaratory
                                                9
and the trial court erred in denying the Commission Parties’ plea to the
jurisdiction.45 The City has had an opportunity to amend its pleading to assert an
ultra vires claim, and the City has neither done so nor requested an opportunity to
do so in the trial court or on appeal. Therefore, there is no basis for a remand to
allow the City an opportunity to plead an ultra vires claim.46
          For these reasons, the correct disposition is to reverse the trial court’s order
and render judgment dismissing the City’s lawsuit for lack of jurisdiction.
Accordingly, I concur in the court’s judgment.




                                               /s/     Kem Thompson Frost
                                                       Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally (Boyce, J.,
majority).




relief and that the “underlying nature of his claim” was ultra vires. See Sefzik, 355 S.W.3d at
620–21 & n.2. After concluding that the only possible basis for a waiver of immunity was an
ultra vires claim, the Sefzik court granted the plaintiff’s request for a remand to the trial court in
the interest of justice to allow the plaintiff an opportunity to plead an ultra vires claim. See id. at
622–23.
45
     See Sefzik, 355 S.W.3d at 621; Heinrich, 284 S.W.3d at 369–80.
46
 See Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.]
2009, pet. denied); Gray v. City of Galveston, No. 14–03–00298–CV, 2003 WL 22908145, at *2
(Tex. App.—Houston [14th Dist.] Dec. 11, 2003, no pet.) (mem. op.).


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