                           NUMBER 13-06-332-CV

                          COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG


LOUISE ELIZABETH HURST,                                                    Appellant,

                                         v.

TEXAS DEPARTMENT OF ASSISTIVE AND
REHABILITATIVE SERVICES; AND TERRY
MURPHY, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE TEXAS DEPARTMENT
OF ASSISTIVE AND REHABILITATIVE SERVICES;
AND ALBERT HAWKINS, AS EXECUTIVE
COMMISSIONER OF THE HEALTH AND
HUMAN SERVICES COMMISSION,                                                 Appellees.


  On appeal from the 201st District Court of Travis County, Texas.



                     MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides

    Appellant, Louise Elizabeth Hurst, appeals from a trial court’s order granting a plea
to the jurisdiction filed by appellees, the Texas Department of Assistive and Rehabilitative

Services; Terry Murphy, the department’s commissioner; and Albert Hawkins, the executive

commissioner of the Health and Human Services Commission (collectively “DARS”). Hurst

argues that: (1) the trial court erred by applying the 30-day filing deadline found in Texas

Government Code section 2001.176 to her claim; (2) the trial court erred by dismissing her

claims for declaratory relief; (3) DARS waived sovereign immunity by accepting federal

funds pursuant to 29 U.S.C. §§ 701-796 (the “federal Rehabilitation Act”) or by adopting

title 40, Texas Administrative Code, section 107.413(a)1; and (4) DARS’s policy of

prohibiting benefits for exploratory surgery is contrary to law. See 29 U.S.C. §§ 701-796;

TEX . GOV’T CODE ANN . § 2001.176 (Vernon 2005); 40 TEX . ADMIN . CODE § 107.413 (2003),

repealed by 32 Tex. Reg. 4778 (2007). We affirm, in part, and reverse and remand, in

part.

                                                I. Background

         In June 2002, Hurst was diagnosed with cervical spine damage. Her doctors

informed her that if left untreated, Hurst could die or become paralyzed. She applied for


         1
             This section provided:

         Any party who disagrees with the findings and decision of an im partial hearing officer under
         § 104.4(b) of this title (relating to Mediation and Due Process Hearings) have a right to bring
         a civil action with respect to the m atter in dispute. The action m ay be brought in any State
         court of com petent jurisdiction or in a district court of the United States of com petent
         jurisdiction without regard to the am ount in controversy.

40 T EX . A D M IN . C OD E § 107.413(a) (2003). This rule was repealed on August 31, 2007. See 32 Tex. Reg.
4778 (2007). Contem poraneous with the repeal of section 107.413, DARS proposed rule 101.7045(a), which
becam e effective August 31, 2008 and provides that “[a]ny party who disagrees with the findings and decision
of an im partial hearing officer has a right to bring a civil action in any court of com petent jurisdiction without
regard to the am ount in controversy.” 40 T EX . A D M IN . C OD E § 101.7045 (2008). Because section 107.413 was
in effect at the tim e that Hurst filed her lawsuits in state and federal court, we will cite to the form er provision
in the adm inistrative code.



                                                          2
rehabilitation assistance from DARS.2 DARS initially determined that Hurst was eligible for

rehabilitative services. It initiated an evaluation of Hurst’s situation and attempted to

formulate an individualized plan so that Hurst could return to employment.

        DARS referred Hurst to several doctors over the course of the next year, and all the

doctors recommended surgical fusion of her vertebrae. On March 31, 2003, DARS

informed Hurst that the proposed surgery was an “exploratory surgery,” for which DARS

would not pay. DARS denied Hurst any further medical treatment and refused to provide

further services.

        Hurst filed an appeal with DARS. An administrative hearing was held on August 19,

2003. The hearing officer affirmed DARS’s decision by a ruling dated September 23, 2003.

Hurst then filed a motion for reconsideration. DARS denied the motion on October 24,

2003.

        Hurst filed suit in federal court, relying on title 40, Texas Administrative Code,

section 107.413. See 40 TEX . ADMIN . CODE § 107.413(a). Once in federal court, DARS

moved to dismiss based on Texas’s sovereign immunity under the Eleventh Amendment

to the United States Constitution. See Hurst v. Tex. Dep’t of Assistive & Rehabilitative

Servs., 482 F.3d 809, 809 (5th Cir. 2007), cert. denied, 128 S.Ct. 490 (2007). As part of

its motion to dismiss in federal court, DARS asserted that the district court should abstain

from exercising jurisdiction because Hurst “has a timely and adequate remedy in state

court.” Hurst argued in response that by accepting federal funds under the federal


        2
        DARS was form erly known as the Texas Rehabilitation Com m ission. Effective M arch 7, 2004,
DARS replaced the Texas Rehabilitation Com m ission. T EX . H U M AN R ES . C OD E A N N . §§ 117.001-.074 (Vernon
Supp. 2008). The actions described in the background section prior to March 7, 2004, were taken by the
Texas Rehabilitation Com m ission, but we will refer to the com m ission as DARS for ease of reference.

                                                        3
Rehabilitation Act, 29 U.S.C. §§ 701-796, Texas waived its sovereign immunity. The

district court held that the Rehabilitation Act did not condition the receipt of federal funds

on a waiver of sovereign immunity. Hurst, 482 F.3d 809. Accordingly, on September 22,

2005, the federal district court dismissed Hurst’s action without prejudice.3

        On October 25, 2005, Hurst filed the underlying action in Travis County District

Court, seeking several different forms of relief. First, she asserted that she was appealing

DARS’s decision to deny her benefits under Texas Government Code sections 2001.171-

.178.    See TEX . GOV ’T CODE ANN . §§ 2001.171-.178 (Vernon 2000).                             Second, she

requested a declaratory judgment under the Uniform Declaratory Judgment Act (“UDJA”),

declaring that DARS’s policy of prohibiting “exploratory back surgery” is unauthorized and

contrary to the federal Rehabilitation Act. See TEX . CIV. PRAC . & REM . CODE ANN . §§

37.001-.011 (Vernon 2008). Third, she requested an injunction ordering DARS to approve

and pay for her treatment.

        DARS filed a plea to the jurisdiction, arguing that under the doctrine of sovereign

immunity, it was immune from suit. First, DARS argued that to invoke the trial court’s

jurisdiction to review its administrative order, Hurst was required to file suit within 30 days

after the order became final. See TEX . GOV’T CODE ANN . § 2001.176(a) (Vernon 2000).

Because Hurst did not file her state-court action until two years after the administrative

decision, DARS argued that the trial court lacked jurisdiction over the case. Second,

DARS argued that neither the federal Rehabilitation Act nor DARS’s regulations waived



        3
         The Fifth Circuit later affirm ed the federal court’s dism issal of Hurst’s action, and the United States
Suprem e Court denied Hurst’s petition for writ of certiorari. Hurst, 482 F.3d 809, 809 (5th Cir. 2007), cert.
denied, 128 S.Ct. 490 (2007).

                                                        4
sovereign immunity. Finally, DARS argued that the UDJA is merely a procedural tool for

claims already within the trial court’s jurisdiction; therefore, the UDJA did not confer

jurisdiction on the trial court.

       In response, Hurst first argued that the trial court should apply a two-year statute of

limitations because section 2001.176 of the Texas Government Code conflicted with the

federal Rehabilitation Act. Second, she argued that the federal Rehabilitation Act provided

an independent basis for the court’s jurisdiction and that Texas waived its sovereign

immunity by accepting federal funds. Third, Hurst argued that sovereign immunity does

not bar her claim for declaratory relief, which was for prospective relief only.

       The trial court held a hearing on January 30, 2006, and it granted DARS’s plea to

the jurisdiction on the same day, dismissing Hurst’s suit. Hurst filed a motion for new trial.

In her motion, she asserted for the first time that the 30-day limitation in government code

section 2001.176 should be tolled. See TEX . CIV. PRAC . & REM . CODE ANN . § 16.064

(Vernon 2008). Hurst’s motion was overruled by operation of law, and this appeal ensued.4

                        II. Standard of Review and Applicable Law

       We review a trial court’s ruling on subject-matter jurisdiction de novo. Tex. Natural

Resource Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When reviewing a trial

court’s order on a plea to the jurisdiction, a court of appeals should consider only the

“pleadings and evidence pertinent to the jurisdictional question.” Jenkins v. Entergy Corp.,

187 S.W.3d 785, 795 (Tex. App.–Corpus Christi 2006, pet. denied) (citing County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)).


       4
         The case was transferred to this Court pursuant to a docket equalization order issued by the
Suprem e Court of Texas. See T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005).

                                                 5
       “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.” Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Although the claims form the context of the

jurisdictional inquiry, the plea should be decided “without delving into the merits of the

case.” Id. In some circumstances, a court will be unable to determine the jurisdictional

question without some development of the evidence in the case; in those circumstances,

the trial court has discretion to refuse to decide the jurisdictional question until after the

case has progressed past the preliminary hearing stages. Id. But a party should not be

required to put on their entire case in order to establish that they are entitled to be in court

in the first place. Id. (“The purpose of a dilatory plea is not to force the plaintiffs to preview

their case on the merits but to establish a reason why the merits of the plaintiffs' claims

should never be reached.”).

       Texas Rule of Appellate Procedure 41.3 was recently added to clarify that because

this is a transfer case, we are bound to follow the precedent of the transferor court, which

in this case is the Austin Court of Appeals:

       In cases transferred by the Supreme Court from one court of appeals to
       another, the court of appeals to which the case is transferred must decide
       the case in accordance with the precedent of the transferor court under
       principles of stare decisis if the transferee court's decision otherwise would
       have been inconsistent with the precedent of the transferor court. The court's
       opinion may state whether the outcome would have been different had the
       transferee court not been required to decide the case in accordance with the
       transferor court's precedent.

TEX . R. APP. P. 41.3.

                                         III. Analysis

       Hurst raises several arguments in favor of jurisdiction. Hurst argues that (1) the trial


                                                6
court erred by applying the 30-day filing deadline found in Texas Government Code section

2001.176 to her claim for judicial review of DARS’s decision; (2) DARS waived sovereign

immunity by accepting federal funds pursuant to the Rehabilitation Act, 29 U.S.C. §§ 701-

796 or by adopting 40 TEX . ADMIN . CODE § 107.413; and (3) the trial court erred by

dismissing her claims for prospective, declaratory relief. See 29 U.S.C. §§ 701-796; TEX .

GOV’T CODE ANN . § 2001.176; 40 TEX . ADMIN . CODE § 107.413. For the reasons we explain

below, we hold that Hurst’s administrative appeal is barred by sovereign immunity because

she failed to comply with the mandatory, jurisdictional requirements found in section

2001.176.5 However, we agree with Hurst that the trial court erred by dismissing her claim

for prospective, declaratory relief, which does not implicate the doctrine of sovereign

immunity.

A.      Thirty-day Filing Deadline

        Hurst asserts that the trial court erroneously applied the 30-day deadline found in

Texas Government Code section 2001.176 as a jurisdictional bar to her suit. See TEX .

GOV’T CODE ANN . § 2001.176. In this regard, she raises three distinct arguments. First,

she asserts that the trial court should have applied a two-year statute of limitations

because the government code conflicts with the federal Rehabilitation Act. Compare 29

U.S.C. §§ 701-796, with TEX . GOV’T CODE ANN . § 2001.176. Second, she asserts that

section 2001.176 is merely a statute of limitations, not a jurisdictional requirement. See


        5
           Hurst argues that the trial court could have decided the case without reaching the constitutional issue
of sovereign im m unity by m erely dism issing her claim for failure to com ply with the 30-day deadline in Texas
Governm ent Code section 2001.176. See T EX . G O V ’T C OD E A N N . § 2001.176. However, as DARS points out,
Texas G overnm ent Code section 2001.176 is a lim ited waiver of sovereign im m unity for challenges to
adm inistrative decisions in contested case proceedings. See Tex. Dep’t of Protective & Regulatory Servs.
v. Mega Child Care, 145 S.W .3d 170, 198 (Tex. 2004). Thus, the trial court was required to address its
jurisdiction before proceeding to the m erits of the case.

                                                        7
TEX . GOV’T CODE ANN . § 2001.176. Because section 2001.176 is a statute of limitations,

she argues that it can be tolled under Texas Civil Practice and Remedies Code section

16.064 and under equitable tolling principles. See TEX . CIV. PRAC . & REM . CODE ANN . §

16.064. Finally, Hurst argues that application of the 30-day filing deadline violates the Due

Course of Law guarantee in article 1, section 19 of the Texas Constitution. See TEX .

CONST . art. 1, § 19. We disagree with her first two arguments, and her third argument was

not preserved in the trial court.

        1.        Two-year limitations period

        Hurst argues that the filing deadline in government code section 2001.176 must be

read in conjunction with the federal Rehabilitation Act, and to the extent of a conflict, the

federal Rehabilitation Act must control. Specifically, she argues that federal courts have

applied a two-year limitations period to claims under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2)(A),6 which is nearly identical to the provision

in the federal Rehabilitation Act that provides for review of administrative decisions. See

29 U.S.C. § 722(c)(5)(J)(i).7 She refers this Court to Scokin v. Texas, 723 F.2d 432, 438

        6
            The IDEA provides:

        Any party aggrieved by the findings and decision m ade under subsection (f) or (k) of this
        section who does not have the right to an appeal under subsection (g) of this section, and
        any party aggrieved by the findings and decision m ade under this subsection, shall have the
        right to bring a civil action with respect to the com plaint presented pursuant to this section,
        which action m ay be brought in any State court of com petent jurisdiction or in a district court
        of the United States, without regard to the am ount in controversy.

20 U.S.C. § 1415(i)(2)(A).

        7
            The federal Rehabilitation Act provides:

        Any party aggrieved by a final decision described in subparagraph (I), m ay bring a civil action
        for review of such decision. The action m ay be brought in any State court of com petent
        jurisdiction or in a district court of the United States of com petent jurisdiction without regard
        to the am ount in controversy.

                                                        8
(5th Cir. 1984) and Texas Advocates Supporting Kids with Disabilities v. Texas Education

Agency, 112 S.W.3d 234, 236 (Tex. App.–Austin 2003, no pet.). We disagree that these

cases require the application of a two-year statute of limitations.

        In Scokin, the Fifth Circuit was required to determine what statute of limitations to

apply to an action filed in federal district court under the Education of All Handicapped

Children Act (EAHCA), which was the precursor to the IDEA. 723 F.2d at 435. The

EAHCA provided that a party, who was aggrieved by a decision by a state agency

administering the EAHCA, could file suit in federal or state court. Id. The EAHCA did not

provide a limitations period or filing deadline. Id. The court, therefore, had to determine

what limitations period should apply. Id. It reiterated the general rule that federal courts

in these situations look to state law to find an analogous limitations period that is consistent

with the underlying purposes of the act:

        When a federal statute creates a right but does not specify a period of
        limitations, federal courts generally determine which state cause of action is
        most analogous to the federally created cause of action. If the limitations
        period applicable to the analogous state cause of action is consistent with
        the underlying policy of the federal act, the court will borrow that limitations
        period and apply it to the federal cause of action.8

Id. at 436. In other words, because there is no federal limitations period, the federal court

“borrows” a state limitations period.

        The Fifth Circuit considered whether the 30-day filing deadline in the Texas




29 U.S.C. § 722(c)(5)(J)(i).

        8
           Hurst also cites Burnett v. Grattan, 468 U .S. 42 (1984). That case also involved a federal court
“borrowing” a state law lim itations period and applying it to a federal cause of action pending in federal court.
Id. at 44.



                                                        9
Administrative Procedure Act should apply, and it determined that the 30-day period was

inconsistent with the purposes of the EAHCA. Id. The court held that the EAHCA’s goal

of parental involvement in the handicapped child’s education would be thwarted by forcing

parents to make a decision to appeal within such a short period of time, in part, due to the

child’s changing educational needs:

       A short limitations period is contrary to the Act’s goal of parental involvement.
       Thirty days is not enough time for parents to determine whether to pursue
       judicial review of their complaint. A decision to jump from an administrative
       process to federal court may involve obtaining or changing counsel. Parents
       may want to conduct further testing of their child to better evaluate the
       agency's decision. While such testing will probably be conducted before and
       during the administrative hearings, a child's needs may change during the
       process, and parents may want an updated evaluation before deciding
       whether to go to court. In addition, because a child's welfare is an emotional
       issue, parents may need time to reflect before choosing a course of action.

Id. at 437. Hurst argues that the federal Rehabilitation Act has a similar purpose—to

protect individuals requiring vocational rehabilitation—that requires a longer filing period.

       Hurst, however, provides no explanation for how the Fifth Circuit’s precedent applies

to this state-court proceeding. The federal Rehabilitation Act does not provide a limitations

period. See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 389 (Tex.

App.–Houston [14 Dist.] 2004), rev’d on other grounds, 184 S.W.3d 707 (Tex. 2006) (“[I]f

Congress has enacted a statute that requires a four-year limitations period for the federal

claim asserted in this case, then that federal law would preempt any contrary state-law

analysis.”). In the absence of a direct conflict with federal law, we must apply state

procedural law to Hurst’s claims filed in state court, whether her claims are characterized

as federal or state law causes of action. See Exxon Corp. v. Choo, 881 S.W.2d 301, 306

n.9 (Tex. 2000); see also Smith & Assocs., LLP v. Advanced Placement Team, Inc., 169


                                              10
S.W.3d 816, 822 (Tex. App.–Dallas 2005, pet. denied). The filing deadline in government

code section 2001.176 applies to Hurst’s claims in state court. Smith & Assocs., LLP, 169

S.W.3d at 822.

       The Austin Court of Appeals’ decision in Texas Advocates Supporting Kids with

Disabilities v. Texas Education Agency does not compel a different result. See 112

S.W.3d at 236. In that case, the Texas Education Agency adopted a regulation that

required parties seeking judicial review of an agency determination under the IDEA to file

suit within 90 days after the administrative determination. Id. at 236. The Austin Court of

Appeals held that the agency did not have authority to adopt the 90-day filing deadline, and

it applied a two-year statute of limitations to an IDEA claim in state court. Id. at 241. The

court’s ruling was based on the separation of powers doctrine. Id. It held that the agency

could only act within its delegated authority, and the Texas Legislature had not delegated,

expressly or impliedly, the authority to adopt a limitations period applicable to suits for

judicial review. Id.

       In Texas Advocates, the court was careful to note that neither the Texas Legislature

nor the United States Congress had adopted a limitations period applicable to IDEA claims.

Id. Hurst’s case is different—here, the Texas Legislature has provided a method for

judicial review by enacting government code section 2001.176 and has imposed a filing

deadline. TEX . GOV’T CODE ANN . § 2001.176. This case does not involve an allegation of

an improper exercise of power by an agency. For all the foregoing reasons, we hold that

the 30-day filing deadline found in section 2001.176 applies to Hurst’s suit for judicial

review of DARS’s administrative decision.



                                             11
         2.        Limitations Period or Jurisdictional Bar?

         Next, Hurst argues that the filing deadline in section 2001.176 is merely a limitations

period that must be raised by an affirmative pleading, not by a plea to the jurisdiction. As

such, she reasons that the time period can be tolled. Hurst’s argument, however, is

inconsistent with the Austin Court of Appeals’ binding precedent.

         Hurst argues that in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), the

Texas Supreme Court explained that statutory prerequisites to suit are not jurisdictional.

Hurst argues that this rule did not change until the Texas Legislature adopted section

section 311.034 of the government code, which became effective on September 1, 2005.

See TEX . GOV ’T CODE ANN . § 311.034 (Vernon 2005).9 She argues that the statute only

applies prospectively, and because DARS’s decision to deny benefits occurred before the

statute became effective, it does not apply to her case. See, e.g., Dallas County v. Posey,

239 S.W.3d 336, 339 (Tex. App.–Dallas 2007, pet. filed).

         The problem with Hurst’s argument is that after Dubai, but before government code

section 311.014 became effective, the Austin Court of Appeals specifically held that filing

deadlines in administrative appeals constitute a different type of statutory prerequisite that

remained jurisdictional in spite of the Texas Supreme Court’s decision in Dubai. Heart


         9
             Section 311.034 provides:

         In order to preserve the legislature's interest in m anaging state fiscal m atters through the
         appropriations process, a statute shall not be construed as a waiver of sovereign im m unity
         unless the waiver is effected by clear and unam biguous language. In a statute, the use of
         “person,” as defined by Section 311.005 to include governm ental entities, does not indicate
         legislative intent to waive sovereign im m unity unless the context of the statute indicates no
         other reasonable construction. Statutory prerequisites to a suit, including the provision of
         notice, are jurisdictional requirem ents in all suits against a governm ental entity.

T EX . G O V ’T C OD E A N N . § 311.034 (Vernon 2005).

                                                          12
Hosp. IV, L.P. v. King, 116 S.W.3d 831, 834-37 (Tex. App.–Austin 2003, pet denied); see

also Brown v. Texas Educ. Agency, No. 03-00-00433-CV, 2002 WL 1377857, at *1-2 (Tex.

App.–Austin 2002, pet. denied) (not designated for publication). In Heart Hospital, the

Austin Court of Appeals considered whether the 14-day filing deadline applicable to judicial

appeals from decisions of the Texas Workforce Commission was a jurisdictional

requirement. Heart Hosp., 116 S.W.3d at 834. It reasoned that because filing deadlines

limit the classes of cases that a district court may consider, the filing deadline is not merely

a statutory prerequisite but is a jurisdictional requirement:

       We must begin our analysis by first determining whether compliance with the
       statutory fourteen-day deadline is jurisdictional. Failure of a party to comply
       with statutory requirements is no longer an absolute bar to review of an
       agency determination. Some statutory prerequisites, however, remain
       jurisdictional. This Court has distinguished “statutory prerequisites” from
       those matters that are “traditionally and undoubtedly elements of
       subject-matter jurisdiction.” A jurisdictional statutory requirement is one that
       “defines, enlarges, [or] restricts the class of causes the court may decide or
       the relief the court may award.” A statutory requirement that does none of
       these may nevertheless affect a plaintiff's right to relief, but it is not
       jurisdictional. Applying these principles, this Court has held that failure to
       exhaust all administrative remedies, including the timely filing of a motion for
       rehearing, is jurisdictional “because the filing of the motion for rehearing
       defines and restricts the kind of case a district court may hear.” Similarly, the
       statutory fourteen-day deadline also defines and restricts the kind of case
       that district courts may hear.

Id. at 834-35 (citing Dubai, 12 S.W.3d at 76) (internal citations omitted).

       Thus, even if we accepted Hurst’s argument that DARS is seeking to apply

government code section 311.034 retroactively to her case, the Austin Court of Appeals

would have held that the filing deadline in government code section 2001.176 was a

jurisdictional requirement even before that statute took effect. Id.; see also Brown, 2002

WL 1377857, at *1-2 (not designated for publication) (holding section 2001.176 is a


                                              13
jurisdictional requirement). Accordingly, we must reject Hurst’s argument, even though we

might have decided the issue differently had we been applying precedent from our own

Court.

         Our determination that section 2001.176's filing deadline is jurisdictional also

precludes Hurst’s tolling theories. In Heart Hospital, the Austin Court of Appeals held that

the tolling provision in Texas Civil Practice and Remedies Code section 16.064 does not

apply to special statutory proceedings such as judicial review of agency determinations.

Heart Hosp., 116 S.W.3d at 836. Furthermore, it held that because filing deadlines are

jurisdictional, equitable tolling theories do not apply. Id.

         Hurst argues that DARS should be equitably estopped from asserting limitations

because it represented to Hurst and to the federal district court that she had a timely and

adequate state remedy. While we do not condone the apparent “bait and switch” tactics

employed by DARS when it (1) represented that Hurst could file suit in both state or federal

court, (2) represented to the federal district court that Hurst still had a state remedy, and

(3) then moved to dismiss her state court action based on the filing deadline, we are

unable to remedy the situation because the filing deadline was jurisdictional. Accordingly,

we must reject Hurst’s arguments. Id. (“Once King failed to comply with that statutory

prerequisite, his cause could not be saved by a tolling provision applicable only to statutes

of limitations; the district court simply did not have jurisdiction.”).

         3.    Due Course of Law

         Hurst argues that DARS’s inconsistent representations to the federal district court

and to the trial court below, regarding the availability of a state-court remedy, violate the



                                               14
Due Course of Law guarantee in the Texas Constitution. TEX . CONST . art. 1, § 19. DARS

correctly points out that Hurst never raised this argument in the trial court. Accordingly,

Hurst waived this argument. TEX . R. APP. P. 33.1; Ratsavong v. Menevilay, 176 S.W.3d

661, 671 (Tex. App.–El Paso 2005, pet. denied); Hernandez v. State Bar of Tex., 812

S.W.2d 75, 78 (Tex. App.–Corpus Christi 1991, no writ).

B.     DARS’s Acceptance of Federal Funding and Adoption of Regulations

       Hurst asserts that the federal Rehabilitation Act provides a separate basis for the

trial court’s jurisdiction.   She asserts that by accepting federal funds under the

Rehabilitation Act, the state of Texas waived its sovereign immunity from suit in its own

courts. DARS responds that the federal court has already determined this issue in DARS’s

favor. See Hurst, 482 F.3d at 814. Thus, DARS argues that res judicata applies to

preclude Hurst from relitigating this issue.

       First, we note that the federal district court and the Fifth Circuit have already

rejected Hurst’s argument, and the Supreme Court denied review. Id. Hurst argues that

the same sovereign immunity analysis does not apply in state court as in federal court;

therefore, we should not hold that Texas retains sovereign immunity based on the federal

court’s ruling. Hurst offers no support for her contention. In fact, Eleventh Amendment

immunity applies to state-court suits for violations of federal law. See Alden v. Maine, 527

U.S. 706, 712 (1999); see also Klebe v. Univ. of Tex. Sys., No. 03-05-00527-CV, 2007 WL

2214344, at *5 (Tex. App.–Austin July 31, 2007, no pet.) (mem. op.). Even if we agreed




                                               15
with Hurst that her argument was not barred by res judicata,10 the Texas Supreme Court

has explained that we are bound to follow federal interpretations of Eleventh Amendment

immunity. See Hoff v. Nueces County, 153 S.W.3d 45, 49 (Tex. 2004). While the Fifth

Circuit’s pronouncements are not binding on this Court as a United States Supreme Court

decision would be, it is persuasive authority. Brooks v. Ctr. for Healthcare Servs., 981

S.W.2d 279, 286 (Tex. App.–San Antonio 1998, no pet.).

        As the Fifth Circuit correctly noted, “[a] state waives its immunity by voluntarily

participating in federal spending programs only when Congress includes a clear statement

of intent to condition participation in the programs on a State’s consent to waive its

constitutional immunity.” Hurst, 482 F.3d at 811 (citing Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 247 (1985)). Requiring a clear statement that acceptance of funds is

conditioned on a waiver of immunity allows states to make an informed, voluntary decision

as to whether to accept the funds. Id. (citing Pace v. Bogalusa City Sch. Bd., 403 F.3d

272, 279 (5th Cir. 2005)). “In seeking to determine whether the language of a condition

is sufficiently clear, courts must view the statute ‘from the perspective of a state official who

is engaged in the process of deciding whether the state should accept [federal] funds and

the obligations that go with those funds,’ asking ‘whether . . . a state official would clearly

understand [the nature of the condition].’” Id. (quoting Arlington Cent. Sch. Dist. Bd. Of



        10
           See, e.g., Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W .3d 410, 418 (Tex. App.–Houston [14 Dist.]
2002, pet. denied) (“Because the federal court lacked jurisdiction over Luxem burg's claim s in the present suit,
we m ust conclude that res judicata does not apply.”); Jackson v. Univ. of Tex. Health Science Ctr. Police
Dep’t, No. 04-03-00553-CV, 2004 W L 572330, at *3 (Tex. App.–San Antonio Mar. 24, 2004, no pet.) (m em .
op.) (“Consequently, res judicata did not bar Jackson from bringing these claim s in state court since they were
barred by im m unity and dism issed in federal court for lack of subject m atter jurisdiction.”).




                                                      16
Educ. v. Murphy, 548 U.S. 291, 296 (2006)).

       Applying this test to the federal Rehabilitation Act’s judicial review provision in 29

U.S.C. § 722(c)(5)(J)(i), the Fifth Circuit held that the authorization for judicial review was

a “general authorization for suit” and not a clear statement by Congress that states were

waiving sovereign immunity by accepting federal funds. Id. at 812. We agree. In

Atascadero, the Supreme Court addressed a separate provision in the federal

Rehabilitation Act that provided:

       the remedies, procedures and rights set forth in Title VI of the Civil Rights Act
       of 1964 [42 U.S.C.A. § 2000d et seq.] [including the right to sue in federal
       court to enforce obligations imposed under the statute] shall be available to
       any person aggrieved by any act or failure to act by any recipient of federal
       assistance or federal provider of such assistance under section 504 [29
       U.S.C. § 794] of this title.

Hurst, 482 F.3d at 812 (quoting 29 U.S.C. § 794a). The Supreme Court held that even

though states are recipients of federal assistance under the act, the statute was merely a

general authorization for suit that did not waive Eleventh Amendment immunity.

Atascadero, 472 U.S. at 245-46. Interestingly, after Atascadero was decided, Congress

amended the statute to make its intent clear:

       A State shall not be immune under the Eleventh Amendment of the
       Constitution of the United States from suit in Federal court for a violation of
       section 504 of the Rehabilitation Act of 1973, title IX of the Education
       Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil
       Rights Act of 1964, or the provisions of any other Federal statute prohibiting
       discrimination by recipients of Federal financial assistance.

42 U.S.C. § 2000d-7.

       The relevant provision of the federal Rehabilitation Act provides:

       Any party aggrieved by a final decision described in subparagraph (I), may
       bring a civil action for review of such decision. The action may be brought in
       any State court of competent jurisdiction or in a district court of the United

                                              17
       States of competent jurisdiction without regard to the amount in controversy.

29 U.S.C. § 722(c)(5)(J)(i). While this statute is more clear as to whom it applies, it is still

only a general authorization for suit. See Atascadero, 473 U.S. at 245-46. Accordingly,

we agree with the Fifth Circuit that Congress did not clearly state that by accepting federal

funds, the State of Texas would waive its Eleventh Amendment immunity.

       Second, as we stated above, even if we agreed that Eleventh Amendment immunity

was waived, we must apply state procedural requirements to federal causes of action

brought in state court. See Exxon Corp., 881 S.W.2d at 306 n.9; see also Smith &

Assocs., LLP, 169 S.W.3d at 822. Hurst does not explain why the Texas Legislature was

not free to impose a filing deadline as a condition of the waiver of sovereign immunity.

       As we stated above, the federal Rehabilitation Act does not contain a limitations

period, nor does it require states accepting funds under the program to allow for a long

filing period. See 29 U.S.C. § 722(c)(5)(J)(i). Moreover, 29 U.S.C. § 722(c)(5)(J)(i) allows

suit in a state court “of competent jurisdiction,” which necessarily means that the state’s

jurisdictional statues would still apply to any action brought under the federal law. Id.; see

also Richards v. Alibozek, No. CV010510286S, 2002 WL 1815918, at *5 (Conn. Super. Ct.

June 26, 2002) (not designated for publication) (“Moreover, because the General Assembly

has not waived sovereign immunity for suits under the Rehabilitation Act, the state court

is not a court ‘of competent jurisdiction’ within § 722(c)(5)(J)(i). A court of ‘competent

jurisdiction’ is one that at least has subject matter jurisdiction under that forum's

jurisdictional statutes.”). Under these circumstances, even if the Texas Legislature waived

sovereign immunity by accepting federal funds, there is nothing in the federal Rehabilitation



                                              18
Act that precludes the use of a filing deadline to speed the process of administrative

review.     Accordingly, we reject Hurst’s argument that the federal Rehabilitation Act

provides a separate basis for jurisdiction such that she was not required to file her suit for

judicial review within 30 days.

       Correspondingly, Hurst argues that by adopting regulations that appear to allow suit

in federal or state court, DARS waived sovereign immunity. See 40 TEX . ADMIN . CODE §

107.413. However, the legislature has not delegated authority to DARS to waive sovereign

immunity, which is a function reserved to the legislature. City of LaPorte v. Barfield, 898

S.W.2d 288, 291 (Tex. 1995). Accordingly, DARS’s adoption of regulations could not

waive sovereign immunity.

C.     Hurst’s Claims for Prospective, Declaratory Relief

       While we agree with DARS that Hurst’s claims seeking review of its administrative

decision to deny her benefits is barred by sovereign immunity, her claims for declaratory

relief are entirely separate and require a separate analysis. Hurst seeks a declaration that

DARS’s policy of refusing “exploratory back surgery” is contrary to the federal

Rehabilitation Act.   This type of claim does not implicate the doctrine of sovereign

immunity.

       “Sovereign immunity, unless waived, protects the State from lawsuits for damages.”

Gen. Serv. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001) (emphasis

added); see also IT-Davy, 74 S.W.3d at 853; Hawkins v. El Paso First Health Plans, Inc.,

214 S.W.3d 709, 716-18 (Tex. App.–Austin 2007, pet. filed) (holding that suit for

declaratory relief was not a suit against the State because it did not seek to impose liability



                                              19
or seek money damages).         Sovereign immunity is based on the premise that the

legislature's policy-making function deserves protection. IT-Davy, 74 S.W.3d at 854. For

example, sovereign immunity bars a claim for damages arising out of a breach of contract

unless a waiver of sovereign immunity can be established or consent is obtained from the

legislature. Id. This ensures that current policymakers are not bound by their predecessors'

long-term contracts and can respond to changing conditions in the public's best interest.

Id.

       Certain types of actions, however, do not implicate these concerns and, therefore,

do not implicate the sovereign immunity doctrine. Nueces County v. Ferguson, 97 S.W.3d

205, 217 (Tex. App.–Corpus Christi 2002, no pet.). For example, suits for declaratory relief

do not implicate the sovereign immunity doctrine. See IT-Davy, 74 S.W.3d at 855;

Hawkins, 214 S.W.3d at 716; City of Dallas v. Blanton, 200 S.W.3d 266, 279 (Tex. App.–

Dallas 2006, no pet.); Ferguson, 97 S.W.3d at 218. “[N]o consent is required when suit is

filed seeking only a declaration or enforcement of rights.” Ferguson, 97 S.W.3d at 217;

see also Sefzik v. Tex. Dep’t of Transp., No. 13-06-550-CV, 2008 WL 2454228, at *3 (Tex.

App.–Corpus Christi June 19, 2008, no pet. h.). “Suits to compel state officers to act within

their official capacity do not attempt to subject the State to liability.” IT-Davy, 74 S.W.3d

at 855; Hawkins, 214 S.W.3d at 716-18; Blanton, 200 S.W.3d at 279 (“A party generally

can maintain a suit to determine its rights without legislative permission because such suits

are not considered ‘suits against the State’ for purposes of sovereign immunity.”). Suits for

declaratory relief do not hamper policymakers’ ability to perform in the public interest by

binding them to outdated or expired policies. Sefzik, 2008 WL 2454228, at *4. “If a statute



                                             20
sought to be construed through a declaratory judgment is outdated, and thus a declaration

of rights under that statute causes problems for the general public, it is the policymakers'

job to change the statute, not to ignore it or violate it with impunity.” Id.

       DARS argues that Hurst’s claim for prospective, declaratory relief is a veiled attempt

to obtain compensation and, therefore, is barred by sovereign immunity. DARS reasons

that the only effective, prospective relief would be an order requiring DARS to expend

funds for her surgery. We disagree.

       Hurst pleaded her claims for declaratory relief as a separate remedy. While Hurst’s

claim for declaratory relief will not ultimately result in a reversal of DARS’s prior denial of

benefits or in the immediate payment for her surgery, she alleges she has been injured by

DARS’s failure to comply with the law governing its operations. Hurst continues to suffer

from her disability, and it is certainly possible that she may require a different type of

surgery on her back as her disability progresses that may again be characterized as

“exploratory surgery.” To that extent, Hurst will benefit from a declaration that DARS’s

policies are contrary to law. See City of Round Rock v. Whiteaker, 241 S.W.3d 609, 633-

34 (Tex. App.–Austin 2007, pet. filed).

D.     DARS’s policy of prohibiting exploratory back surgery

       As a final effort, Hurst spends several pages of her brief arguing that DARS’s policy

of prohibiting benefits for exploratory back surgery is contrary to law. Essentially, through

this argument she asks this Court to grant her the declaratory relief that she requested in

the trial court. As this is an appeal from an order granting DARS’s plea to the jurisdiction,

it is inappropriate for this Court to delve into the merits of her claims. Bland Indep. Sch.



                                              21
Dist., 34 S.W.3d at 554; Sefzik, 2008 WL 2454228, at *5. The trial court must consider this

issue on remand.

                                      IV. Conclusion

       We hold that Hurst’s claim for judicial review of DARS’s administrative decision is

barred by sovereign immunity. Accordingly, we affirm the trial court’s order dismissing that

claim for lack of jurisdiction. However, Hurst’s claim for prospective, declaratory relief does

not implicate the doctrine of sovereign immunity. Accordingly, we reverse the trial court’s

order dismissing Hurst’s claim for prospective, declaratory relief and remand those claims

to the trial court for further proceedings.



                                                   ______________________________
                                                   GINA M. BENAVIDES,
                                                   Justice


Memorandum Opinion delivered and
filed this the 23rd day of October, 2008.




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