                           NUMBER 13-11-00751-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THORA O. ROURK, ET AL.,                                                 Appellants,

                                          v.

CAMERON APPRAISAL DISTRICT,                                                Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas.


                                  OPINION
           Before Justices Rodriguez, Benavides and Longoria
                     Opinion by Justice Benavides
      We issued our original opinion in this cause on July 18, 2013.          Cameron

Appraisal District filed a motion for rehearing en banc.   After due consideration, and

within our plenary power, we sua sponte withdraw our previous opinion and judgment
and substitute the following opinion and accompanying judgment in their place.                      See

TEX. R. APP. P. 19.1. The District’s motion for rehearing en banc is denied as moot.

        By one issue, appellants, Thora O. Rourk and others similarly situated1 appeal

the trial court’s denial of attorney’s fees under the Texas Uniform Declaratory Judgment

Act (UDJA) in this property taxation case. See generally TEX. CIV. PRAC. & REM. CODE

ANN. § 37.001–.011 (West 2008). We reverse and remand.

                                      I.      BACKGROUND2

        This case is before us for a third time.         See Rourk v. Cameron Appraisal Dist.,

131 S.W.3d 285 (Tex. App.—Corpus Christi 2004), rev’d, in part, and remanded, 194

S.W.3d 501 (Tex. 2006) (Rourk I); Rourk v. Cameron Appraisal Dist., 305 S.W.3d 231

(Tex. App.—Corpus Christi 2009, pet. denied) (Rourk II).             In Rourk II, we concluded that

the appellants’ travel trailers and recreational vehicles were not improvements, or real

property, but instead, tangible personal property that was exempt from taxation.                    See

Rourk II, 305 S.W.3d at 236–39; see also TEX. TAX CODE ANN. § 11.14 (West 2008).

Accordingly, we reversed the trial court’s judgment to the contrary and remanded the

case to determine whether the appellants were entitled to attorney’s fees from appellee,

Cameron Appraisal District (the Appraisal District).




        1
         Named appellants are Thora O. Rourk, Elva Broker, Clara and Harry Schmoekel, Robert and
Joan Niles, Carroll A. and Lois Iverson, William W. and Frances Wolfe, Terry and Jean Lathangue, A.J. and
Betty Roy, Mabel Cheetham, Ryle Andrews, Larry and Mary Gustin, Lowell and Winona Krenger, George
and Fran Wrasse, Donald E. and Virginia M. Sadler, Sheldon I. and Margurite C. Ross, Jewell and Martha
Groover, Vassie Miller, Barry W. Hewitt and Sheila A. Hewitt, and Mike and Monica MacWilliam.
        2
         This opinion is a companion appeal with John J. Boll, et al. v. Cameron Appraisal Dist., Cause
No. 13-11-00750-CV.



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        On remand, appellants filed a motion for attorney’s fees.              After holding a hearing,

the trial court denied appellants’ motion for attorney’s fees under the UDJA.3 This

appeal followed.

                                    II.      ATTORNEY’S FEES

        By their sole issue, appellants assert that the trial court erred by denying their

motion for attorney’s fees under the UDJA. See generally TEX. CIV. PRAC. & REM. CODE

ANN. §§ 37.001–.011.

A.      Jurisdiction

        As a preliminary matter, the Appraisal District, as a political subdivision of the

state, see TEX. TAX CODE ANN. § 6.01(c) (West 2008), asserts that it is immune from the

present action under the UDJA because appellants’ requested declaratory relief is

“redundant” to the relief provided by the tax code.4

        1. Standard of Review and Applicable Law

        A party asserting immunity to suit challenges the trial court’s jurisdiction.               Harris

County Hosp. Dist. v. Tomball Reg. Hosp., 283 S.W.3d 838, 842 (Tex. 2009).

Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in

which the state or certain governmental units have been sued unless the state consents

to suit.    Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).

We address questions of immunity de novo.                Id.



        3
          The trial court also denied attorney’s fees under the tax code. Appellants do not challenge that
ruling on appeal, and we therefore do not address it.
        4
         Subject-matter jurisdiction is an issue that may be raised for the first time on appeal and may not
be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993).



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       Under City of El Paso v. Heinrich, sovereign immunity bars UDJA actions against

the state and its political divisions absent a legislative waiver. 284 S.W.3d 366, 373

(Tex. 2009). Concomitant to this rule, however, is the ultra vires exception, under which

claims may be brought against a state official for non-discretionary acts unauthorized by

law.   Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011).           In other

words, a proper defendant in an ultra vires action is the state official whose acts or

omissions allegedly trampled on a party’s rights, not the state, or its political

subdivisions, themselves.    Id. (citing Heinrich, 284 S.W.3d at 372–73). Furthermore,

the UDJA does not waive the state’s sovereign immunity when the plaintiff seeks a

declaration of his or her rights under a statute or other law.   Sefzik, 355 S.W.3d at 621;

see Heinrich, 284 S.W.3d at 372–73. This proposition is supported by the fact that the

UDJA does not alter a trial court’s jurisdiction because it is “merely a procedural device

for deciding cases already within the trial court’s jurisdiction.”   Tex. Parks & Wildlife

Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011) (quoting Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).     Accordingly, under the facts of

this case, in order for the underlying action to survive an assertion of sovereign

immunity, it must be one for which immunity has expressly been waived.          Sefzik, 355

S.W.3d at 621.

       2. Discussion

       Appellants’ claims under the UDJA deal with the purported unconstitutional and

unlawful taxation of their trailer homes.   See TEX. CONST. art. VIII, § 1(d)(2); TEX. TAX

CODE ANN. § 11.14 (West 2008). Additionally, appellants seek attorney’s fees pursuant




                                             4
to section 37.009 of the UDJA.        See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West

2008). Although the UDJA waives sovereign immunity, appellants’ claims do not fall

within the scope of these waivers.          See, e.g., id. § 37.006(b) (West 2008) (waiving

immunity for claims challenging the validity of ordinances or statutes); see also Heinrich,

284 S.W.3d at 373 n. 6; Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)

(“The [UDJA] expressly provides that persons may challenge ordinances or statutes, and

that governmental entities must be joined or notified.”). Appellants are not challenging

the validity of a provision of the tax code; instead, they are challenging the Appraisal

District’s actions under it, and appellants do not direct us to any portion of the UDJA that

expressly waives immunity for these claims.           See Sefzik, 355 S.W.3d at 622.          And

appellants did not sue any state officials. Accordingly, the trial court lacked jurisdiction

to hear any of appellants’ claims under the UDJA, including their claims for attorney’s

fees.

        Generally, when we hold that a trial court is without subject-matter jurisdiction, we

allow a plaintiff to replead if the defect can be cured.          See Miranda, 133 S.W.3d at

226–27.     Here, appellants did not sue any state officials; however, appellants brought

their claims under the UDJA pre-Heinrich, when the case law interpreting the ultra vires

exception to the doctrine of sovereign immunity, as well as to who the property party was

in a suit for declaratory remedy, was “less than clear.” See Heinrich, 284 S.W.3d at 373

(“We have been less than clear regarding the permissible use of a declaratory remedy in

this type of ultra vires suit.”).   Thus, in light of the clarifications to this area of the law in

Heinrich, appellants should have an opportunity to replead in an attempt to cure the




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jurisdictional defects of their petition.   See Sefzik, 355 S.W.3d at 623 (giving plaintiff an

opportunity to replead because her claim was brought pre-Heinrich).                   Without

expressing any opinion on the merits of such a claim, we therefore, remand the case to

the trial court to allow appellants this opportunity.      See id. (citing Sawyer Trust, 354

S.W.3d at 394).

                                     III.    CONCLUSION

       We reverse the trial court’s judgment and remand the case to the trial court for

proceedings consistent with this opinion.




                                                           __________________________
                                                           GINA M. BENAVIDES,
                                                           Justice


Delivered and filed the
15th day of August, 2013.




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