                                                                                                 ACCEPTED
                                                                                             03-16-00415-CV
                                                                                                   11714778
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
October 5, 2016                                                                         7/19/2016 3:40:55 PM
                                                                                           JEFFREY D. KYLE
                                                                                                      CLERK
                             NO. 03-16-00415-CV
       ______________________________________________________________
                                                                       RECEIVED IN
                            In the Court of Appeals      3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                         For the Third District of Texas
                                                         7/19/2016 3:40:55 PM
       ______________________________________________________________
                                                           JEFFREY D. KYLE
                                                                          Clerk
                              MCLANE COMPANY, INC.,
                              Intervening Plaintiff-Appellant,
                                             v.

            TEXAS ALCOHOLIC BEVERAGE COMMISSION ET AL.,
                             Defendants-Appellees.
       ______________________________________________________________

                         On Accelerated Appeal from the
                53rd Judicial District Court of Travis County, Texas
                           Cause No. D-1-GN-15-004380
       ______________________________________________________________

                  MCLANE COMPANY, INC.’S OPENING BRIEF
                      ORAL ARGUMENT REQUESTED
       ______________________________________________________________

                                             BRETT CHARHON
                                              Texas State Bar No. 24040674
                                              bcharhon@ccrglaw.com
                                             STEVEN CALLAHAN
                                              Texas State Bar No. 24053122
                                              scallahan@ccrglaw.com
                                             CHARHON CALLAHAN
                                             ROBSON & GARZA, PLLC
                                             3333 Lee Parkway, Suite 460
                                             Dallas, Texas 75219
                                             Telephone: (214) 521-6400
                                             Telecopier: (214) 764-8392

                                             Counsel for Intervening Plaintiff-
       Dated: July 19, 2016                  Appellant McLane Company, Inc.
               IDENTITY OF PARTIES AND COUNSEL

      The Texas Alcoholic Beverage Commission (“TABC”) is the original

plaintiff in the case. The TABC became a defendant after McLane intervened.

Sherry Cook, the Chief Administrative Officer and Officer for Public Infor-

mation of the TABC, is also a defendant. The TABC and Ms. Cook are repre-

sented by:

      Ann Hartley
      Financial Litigation & Charitable Trusts Division
      Office of the Attorney General
      P.O. Box 12548
      Austin, Texas 78711-2548

      Ken Paxton, Attorney General of Texas, is the original defendant in

the case. Mr. Paxton is not a party to this appeal. Mr. Paxton is represented

by:

      Matthew Ryan Entsminger
      Open Records Litigation
      Administrative Law Division
      Office of the Attorney General
      P.O. Box 12548
      Austin, Texas 78711-2548

      McLane Company, Inc. (“McLane”) is the intervening plaintiff in the

case. McLane is represented by:

      Brett Charhon
      Steven Callahan
      Charhon Callahan Robson & Garza, PLLC
      3333 Lee Parkway, Suite 460
      Dallas, Texas 75219
                                       i
                                    TABLE OF CONTENTS

STATEMENT OF THE CASE ....................................................................... v

STATEMENT REGARDING ORAL ARGUMENT ..................................... vi

ISSUES PRESENTED ..................................................................................vii

PRELIMINARY STATEMENT ..................................................................... 1

STATEMENT OF FACTS.............................................................................. 3

SUMMARY OF THE ARGUMENT .............................................................. 6

ARGUMENT .................................................................................................. 6

         A.       Standard of Review: De Novo ..................................................... 6

         B.       The UDJA Waives Sovereign Immunity for Claims
                  to Construe Texas Statutes .......................................................... 7

         C.       The Court Should Exercise Jurisdiction Over
                  McLane’s Ultra Vires Claim Against Ms. Cook ........................ 18

                  1.       Under Heinrich, the Court Should Exercise
                           Jurisdiction Over McLane’s Claim that Ms.
                           Cook Violated Non-Discretionary Statutory
                           Duties.............................................................................. 19

                  2.       Under Houston Belt, the Court Should
                           Exercise Jurisdiction over McLane’s Claim
                           that Ms. Cook Exceeded Any Statutory
                           Discretion........................................................................ 26

                  3.       In the Alternative, the Court Should Find that
                           the District Court Erred in Failing to Grant
                           McLane Leave to Replead its Ultra Vires
                           Claim Against Ms. Cook ................................................. 29

PRAYER ...................................................................................................... 30




                                                       ii
                               INDEX OF AUTHORITIES

                                                                                                  Page(s)
CASES

Abbott v. G.G.E,
  463 S.W.3d 633 (Tex. App.—Austin 2015, pet. filed) ...................................... 6

City of Austin v. Cherry,
   03-14-00212-CV, 2015 WL 4508819
   (Tex. App.—Austin July 21, 2015, no pet.) ..................................................... 30

City of Dallas v. Dequire,
   249 S.W. 3d 428 (Tex. 2008) .......................................................................9, 10

City of Dallas v. Saucedo-Falls,
   218 S.W.3d 79 (Tex. 2007) ..........................................................................9, 10

City of El Paso v. Heinrich,
   284 S.W.3d 366 (Tex. 2009) .....................................................................passim

City of McKinney v. Hank’s Rest. Grp.,
   412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.) ........................................ 16

Helena Chem. Co. v. Wilkins,
  47 S.W.3d 486 (Tex. 2001) ............................................................................. 22

Houston Belt & Terminal Ry. Co. v. City of Houston,
  487 S.W.3d 154 (Tex. 2016) .....................................................................passim

Patel v. Tex. Dept. of Licensing & Regulation,
   469 S.W.3d 69 (Tex. 2015) ........................................................................ 14, 16

Pharmserv, Inc. v. Tex. Health & Human Servs. Comm’n,
  No. 03-13-00526-CV, 2015 WL 1612006
  (Tex. App.—Austin Apr. 9, 2015, no pet.) ...................................................... 15

Star Houston, Inc. v. Tex. Dep’t of Transp.,
   957 S.W.2d 102 (Tex. App.—Austin 1997, pet. denied) ................................. 15

Tex. Education Agency v. Leeper,
   893 S.W.2d 432 (1994) .............................................................................passim


                                                 iii
Tex. Dept. of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ............................................................................. 6

Tex. Lottery Comm’n v. First State Bank of DeQueen,
   325 S.W.3d 628 (Tex. 2010) .....................................................................passim

Tex. Mun. Power Agency v. Pub. Util. Com’n,
   100 S.W.3d 510 (Tex. App.—Austin 2003, pet. denied) ............................15, 18

Tex. Mun. Power Agency v. Pub. Util. Com’n,
   253 S.W.3d 184 (Tex. 2008) ........................................................................... 18

Tex. Nat. Res. Cons. Comm’n v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002) ............................................................................... 9

Tex. State Bd. of Vet. Med. Examiners v. Giggleman,
   408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) ........................................ 15

Tex. Dep’t of Transp. v. Sefzik,
   355 S.W.3d 618 (Tex. 2011) .....................................................................passim

STATUTES

Tex. Civ. Prac. & Rem. Code § 37.004 ..................................................... 7, 8, 9, 10

Tex. Civ. Prac. & Rem. Code § 37.006 ........................................................... 10, 11

Tex. Gov’t Code § 552.001 .................................................................................. 22

Tex. Gov’t Code § 552.022 .................................................................................. 20

Tex. Gov’t Code § 552.025 .................................................................................. 20

Tex. Gov’t Code § 552.203 ............................................................................. 21, 25

Tex. Gov’t Code § 552.204 .................................................................................. 22

Tex. Gov’t Code § 552.221 ............................................................................. 23, 24

Tex. Gov’t Code § 552.227 .................................................................................. 24

Tex. Gov’t Code § 552.221 ............................................................................passim

Tex. Gov’t Code § 2001.051 ................................................................................ 13


                                                  iv
                       STATEMENT OF THE CASE

      This case addresses the TABC and Ms. Cook’s duties under the Public

Information Act (“PIA”). McLane brought (i) a declaratory-judgment claim

against the TABC to construe the PIA, (ii) a declaratory-judgment, ultra vires

claim against Ms. Cook (the TABC’s Officer for Public Information) in her

official capacity to require her to comply with the PIA, and (iii) a mandamus

claim under the PIA against the TABC. The Court dismissed both declaratory-

judgment claims for lack of jurisdiction. Appendix, Exs. 1-2 (CR214-15). The

mandamus claim remains, although it is presently stayed at the district court

pending the resolution of this accelerated appeal.




                                       v
            STATEMENT REGARDING ORAL ARGUMENT

      McLane requests oral argument. The sovereign-immunity issues impli-

cate a number of Texas Supreme Court and appellate decisions. Further, the

ultra vires claim implicates a recent Texas Supreme Court decision, Houston

Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016).

McLane seeks the opportunity to answer any questions the Court may have

about these decisions, and submits that oral argument will assist the Court re-

solve this appeal.




                                      vi
                           ISSUES PRESENTED

      This interlocutory appeal presents the following issues:

      1.    Whether the Texas Uniform Declaratory Judgments Act

(“UDJA”) waives sovereign immunity for claims seeking construction of a

Texas statute; and

      2.    Whether subject matter jurisdiction exists over an ultra vires

claim against the TABC’s Officer for Public Information where the PIA im-

poses mandatory obligations on her and McLane asserts that she failed to

comply with such obligations.




                                      vii
                      PRELIMINARY STATEMENT

      The instant lawsuit arises from a single public-information request

submitted by McLane to the TABC in May 2015. The PIA imposes several

mandatory, non-discretionary obligations on the TABC and Ms. Cook when

responding to PIA requests—for example, under the PIA, they must promptly

search for and produce all responsive, non-excepted public information. See

Tex. Gov’t Code §§ 552.221 (“prompt” production); 552.227 (exception to

scope of search); 552.022-552.156 (defining public information and excep-

tions). McLane alleges that the TABC, through Ms. Cook, has not complied

with the PIA in four ways: (i) Ms. Cook has not acted promptly (indeed, over

a year later, the TABC admits that it still has not finished responding to the

May 2015 request), (ii) Ms. Cook did not perform an adequate search for re-

sponsive public information, (iii) Ms. Cook has not produced all responsive,

non-excepted public information, and (iv) Ms. Cook failed to set a date within

a reasonable time when the requested information would be available to

McLane.

      Fundamentally, McLane and the TABC disagree about the duties im-

posed by the PIA in two important ways. First, the TABC contends that the

PIA provides it absolute discretion to determine when to complete its produc-

tion of public information. In contrast, McLane contends that the plain text of


                                      1
the statute requires the TABC to act “promptly [and] without delay,” see §

552.221(a), and does not allow the TABC to unilaterally postpone or delay

production of public information.

      Second, the TABC contends that it has discretion to limit the scope of

its search for responsive documents. McLane, on the other hand, contends that

the TABC must engage in a comprehensive search designed to capture all

public information that is not excepted from disclosure under the PIA. If the

TABC could arbitrarily restrict its search, the TABC would create de facto

categories of documents excepted from disclosure not within the contempla-

tion of the PIA itself (e.g., if TABC refused to search its archives, the TABC

would create a de facto exception for archived files). Thus, McLane contends

that the PIA requires a comprehensive search that uncovers all responsive

public information.

      McLane seeks to resolve these fundamental disputes regarding the par-

ties’ competing interpretations of the PIA through McLane’s UDJA and ultra

vires claims. The UDJA waives sovereign immunity over actions to construe

statutes. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325

S.W.3d 628, 634-35 (Tex. 2010). Under DeQueen and the plain language of

the UDJA, the Court should find that Texas has waived sovereign immunity

over declaratory-judgment claims seeking to construe a statute.



                                      2
      McLane also brought an ultra vires claim to require Ms. Cook to com-

ply with the PIA. The PIA does not provide Ms. Cook with discretion to de-

termine whether or when to comply with public-information requests. Instead,

as required by the PIA, Ms. Cook must promptly perform a reasonable search

for all responsive public information. Because McLane claims that Ms. Cook

failed to comply with non-discretionary duties imposed by the PIA, the Court

should find jurisdiction over McLane’s ultra vires claim.

      Even if the Court finds that Ms. Cook enjoys some discretion under the

PIA, the Court should nevertheless find jurisdiction over McLane’s ultra vires

claim. McLane asserts that Ms. Cook acted outside of any discretion provided

under the PIA by (i) delaying her search and production of responsive public

documents for over a year, (ii) failing to engage in a comprehensive search for

responsive public documents, (iii) withholding public documents subject to

mandatory disclosure, and (iv) failing to properly certify a reasonable date for

production of the requested documents. Under Houston Belt & Terminal

Railway Co. v. City of Houston, McLane’s allegations support jurisdiction

over this claim. 487 S.W.3d 154 (Tex. 2016).

                         STATEMENT OF FACTS

      On May 22, 2015, McLane requested information from the TABC un-

der the PIA. CR107-08 (McLane’s May 22, 2015 PIA request). McLane



                                       3
sought two categories of information: (i) documents relating to any communi-

cations involving Ms. Cook (TABC’s Executive Director) or Ed Swedberg

(TABC’s Deputy Executive Director) from March 31, 2015, to May 22, 2015;

and (ii) documents relating to the TABC or its employees and the Employee

Retirement System of Texas Pension Plan from January 1, 2012, to December

31, 2014. See id. Even though the public-information request has been pend-

ing since May 2015, the TABC admits that it still has not finished its produc-

tion of all information responsive to the request. See CR187 (TABC’s May 3,

2016 letter promising further production by August 2016).

      In July 2015, the TABC asked the Attorney General for an opinion on

whether the TABC could withhold responsive documents under particular

statutory exceptions. See CR110-17 (invoking six sections of the PIA and one

section of the Texas Alcoholic Beverage Code). In September 2015, the At-

torney General ruled that the TABC must release the requested information,

subject to only two limited exceptions. CR136-41 (Attorney General Letter

Ruling OR2015-18385).

      On October 2, 2015, the TABC filed suit against the Attorney General,

seeking to withhold responsive documents. McLane intervened on October

26, 2015, and amended its petition on April 4, 2016. In its amended petition,

McLane seeks, among other things:



                                      4
         · a writ of mandamus ordering the TABC to produce public infor-
           mation responsive to McLane’s public-information request;

         · a declaration that the PIA, properly construed, requires the
           TABC to promptly search for and produce documents responsive
           to public-information requests;

         · a declaration that the PIA, properly construed, requires the
           TABC to conduct a reasonably comprehensive search for public
           information responsive to public-information requests;

         · a judgment requiring Ms. Cook to promptly search for and pro-
           duce the public information responsive to McLane’s request; and

         · a judgment requiring Ms. Cook to perform a reasonably compre-
           hensive search for public information responsive to McLane’s
           request.

See CR103 (McLane’s First Amended Pet. at 16).

      On December 8, 2015, the TABC filed a plea to the jurisdiction chal-

lenging McLane’s declaratory-judgment claim against the TABC, and amend-

ed that plea on May 18, 2016. CR71-75; CR148-63. On May 4, 2016, Ms.

Cook filed a separate plea to the jurisdiction challenging McLane’s declarato-

ry-judgment claim against her. CR142-47. The district court granted both

pleas on May 31, 2016. Appendix, Exs. 1-2 (CR214-15). McLane filed a Mo-

tion to Vacate and for New Trial on June 9, 2016, and a Motion for Reconsid-

eration on June 13, 2016. CR219-43; CR255; CR259. The district court de-

nied these motions on June 14, 2016. CR244-45.

      This accelerated appeal followed.




                                      5
                     SUMMARY OF THE ARGUMENT

       The Court should exercise jurisdiction over McLane’s declaratory-

judgment claim against the TABC to construe the PIA. The UDJA contem-

plates suits to construe statutes and requires joining those parties with an in-

terest in the outcome. As recognized by the Texas Supreme Court, the UDJA

thus waives sovereign immunity over claims to construe statutes.

       The Court should also exercise jurisdiction over McLane’s ultra vires

claim against Ms. Cook. McLane contends that Ms. Cook acted outside of any

discretion provided under the PIA by (i) delaying her search and production of

responsive public documents for over a year, (ii) failing to engage in a com-

prehensive search for responsive public documents, (iii) withholding respon-

sive public documents, and (iv) failing to comply with the PIA’s requirement

to certify a reasonable time for production. McLane’s allegations accordingly

support jurisdiction over this claim.

                                 ARGUMENT

       A.      Standard of Review: De Novo

       This Court reviews district-court rulings on pleas to jurisdiction de no-

vo. See, e.g., Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004); Abbott v. G.G.E, 463 S.W.3d 633, 642 (Tex. App.—Austin 2015,

pet. filed).



                                        6
       B.    The UDJA Waives Sovereign Immunity for Claims to
             Construe Texas Statutes

       The plain text of the UDJA allows for suits to construe statutes:

             Sec. 37.004. SUBJECT MATTER OF RELIEF. (a)
             A person . . . whose rights, status, or other legal
             relations are affected by a statute . . . may have
             determined any question of construction or va-
             lidity arising under the . . . statute . . .

Tex. Civ. Prac. & Rem. Code § 37.004(a).1 The UDJA requires that litigants

join those “who have or claim any interest that would be affected by the dec-

laration[.]” See id. § 37.006(a). Here, McLane seeks to resolve the parties’

competing constructions of the PIA. Based on the text of the UDJA alone, the

Court should find that the UDJA waives sovereign immunity over the TABC,

an agency with an interest in the construction of the PIA.

       The Texas Supreme Court confirmed McLane’s reading of the UDJA in

Texas Education Agency v. Leeper, the seminal case addressing the waiver of

sovereign immunity found in the UDJA. 893 S.W.2d 432 (1994). In Leeper,

the Supreme Court reviewed a district-court judgment that (i) construed the

“private-school exemption” to the compulsory school-attendance law, (ii) en-

joined school districts and attendance officers from initiating charges of viola-

tions of the compulsory-attendance law, unless the charges were based on the

district court’s construction of the private-school exemption, and (iii) awarded

   1
       Unless otherwise noted, this brief has added all emphases in quotations.


                                       7
attorney’s fees. The Supreme Court reversed the injunction as “unnecessary,”

but nevertheless explicitly construed the private-school exemption and al-

lowed attorney’s fees. See id. at 443-44, 446 (“[W]e conclude that the district

court’s declaration of the meaning of ‘private school’ in § 21.003(a)(1), as it

relates to home schools, is clearly correct.”). Leeper held that the UDJA

waived sovereign immunity over the plaintiffs’ claim to construe the private-

school exception:

             Governmental entities joined as parties may be
             bound by a court’s declaration on their ordinances
             or statutes. The Act thus contemplates that gov-
             ernmental entities may be—indeed, must be—
             joined in suits to construe their legislative pro-
             nouncements.

Id. at 446; see also id. at 442 (“[W]e conclude that the district court had juris-

diction to construe § 21.033(a)(1) [the private-school exemption].”). The

Court’s attorney-fee award turned on the sovereign-immunity waiver for

statutory-construction claims. Id. at 446 (“We conclude that by authorizing

declaratory judgment actions to construe the legislative enactments of gov-

ernmental entities and authorizing awards of attorney fees, the DJA necessari-

ly waives governmental immunity for such awards.”). Leeper’s attorney-fee

analysis thus required two holdings on sovereign immunity: (i) the UDJA

waives sovereign immunity for a claim to construe a statute (like the private-




                                        8
school exemption), and (ii) the UDJA also waives sovereign immunity over

an attorney’s fee claim based on a successful statutory-construction claim. Id.

      The Texas Supreme Court reaffirmed the sovereign-immunity waiver

discussed in Leeper at least three times. First, in Texas Natural Resource Con-

servation Commission v. IT-Davy, the Court characterized Leeper as allowing

claims for statutory construction:

             Moreover, the DJA requires challengers to join
             governmental entities in suits to construe legisla-
             tive pronouncements, and the DJA authorizes
             awarding attorneys’ fees. Accordingly, we held
             [in Leeper] that the DJA necessarily waives gov-
             ernmental immunity for attorneys’ fees in suits
             to construe legislative pronouncements.

             However, Leeper’s limited waiver does not allow
             private parties to sue the State for money damages
             under the DJA. And IT–Davy is not asking the
             trial court to construe a legislative enactment.
             Rather, it is seeking a declaratory judgment only in
             an attempt to have the trial court decide its breach-
             of-contract claim. Thus, we conclude IT–Davy’s
             request for declaratory relief does not waive the
             TNRCC’s sovereign immunity from suit and can-
             not be maintained without legislative consent.

74 S.W.3d 849, 860 (Tex. 2002) (citations omitted).

      Next, in both City of Dallas v. Saucedo-Falls and City of Dallas v.

Dequire, the Texas Supreme Court characterized Leeper as “holding, in an ac-

tion construing the compulsory school-attendance law, that the Declaratory

Judgments Act, by authorizing actions to construe legislative enactments


                                       9
and attorney fee awards, ‘necessarily waives governmental immunity for

such awards’”. 218 S.W.3d 79, 79 (Tex. 2007) (mem. opinion); 249 S.W. 3d

428, 428 (Tex. 2008) (mem. opinion).

       In 2009, however, the Texas Supreme Court appeared to cast some

doubt on its reasoning in Leeper. In City of El Paso v. Heinrich, the Supreme

Court, at footnote six, contrasted claims challenging the validity of ordinances

or statutes and those claims challenging the government’s actions under them.

284 S.W.3d 366, 373 n.6 (Tex. 2009). The Supreme Court found that the

UDJA waived sovereign immunity over the former type of claim, but not the

latter. Id. Heinrich suggested that § 37.006(b)2 of the UDJA required treating

the two claims differently because (i) § 37.006(b) requires a litigant to join the

attorney general only when a statute is alleged to be unconstitutional, and thus

(ii) that section only waives sovereign immunity for claims challenging the

constitutionality of a statute. Id. Under this reasoning, if the waiver of sover-

eign immunity in the UDJA were limited to § 37.006(b) (as suggested by this

passage of Heinrich), the waiver would not cover requests to construe a stat-



   2
       Texas Civil Practice & Remedies Code § 37.006(b) reads: “In any pro-
ceeding 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 stat-
ute, ordinance, or franchise is alleged to be unconstitutional, the attorney gen-
eral of the state must also be served with a copy of the proceeding and is enti-
tled to be heard.”


                                       10
ute, as § 37.006(b) only requires joinder when a statute is alleged to be uncon-

stitutional.

       The next year, in Texas Lottery Commission v. First State Bank of

DeQueen, the Texas Supreme Court addressed the point suggested by Hein-

rich’s footnote 6—i.e., whether the waiver of sovereign immunity in the

UDJA was limited to claims challenging the validity or constitutionality of a

statute, or whether the waiver also encompassed claims to construe a statute.

325 S.W.3d 628, 634-35 (Tex. 2010). The Court squarely addressed the issue

and held that the waiver encompassed claims to construe a statute:

               Next, the Commission asserts that the DJA does
               not waive immunity because it applies only to suits
               involving constitutional invalidation and not to
               those involving statutory interpretation. But the
               language in the DJA does not make that distinc-
               tion. In Leeper, the issue was whether a mandatory
               school attendance private school exemption statute
               applied to children taught at home. While the
               plaintiffs also claimed that enforcement of the
               statute violated their constitutional rights, the
               Court did not reach the constitutional issue. Ra-
               ther, the DJA discussion was in the context of a
               statutory clarification.

Id. at 634-35. DeQueen also determined that the sovereign-immunity waiver

was not limited to § 37.006(b):

               The Commission also argues that the DJA does not
               waive immunity in this case because it only waives
               immunity of a municipality, not a state entity. The
               Commission points to Civil Practice and Remedies


                                        11
             Code section 37.006(b), which states that “[i]n any
             proceeding that involves the validity of a munici-
             pal ordinance . . . the municipality must be made a
             party.” But the Court in Leeper did not rely on
             section 37.006 when it concluded that “govern-
             mental entities” are to be joined in suits to con-
             strue legislative pronouncements. Rather, the
             Court concluded that because the DJA permits
             statutory challenges and governmental entities may
             be bound by those challenges, the DJA contem-
             plates entities must be joined in those suits. We
             have subsequently applied the holding of Leeper to
             different governmental entities. Accordingly, we
             disagree that the DJA only waives the immunity
             of municipalities.

Id. at 634 (citing Heinrich and Leeper). Thus, DeQueen reaffirms Leeper, and

holds that the UDJA waives sovereign immunity for claims to construe a stat-

ute, despite the potentially contrary language in Heinrich’s footnote 6. Id. at

634-35.3

       The TABC argues that the Texas Supreme Court overruled the reason-

ing in DeQueen and Leeper in Texas Department of Transportation v. Sefzik,

355 S.W.3d 618, 620 (Tex. 2011), an opinion issued the year after DeQueen.

   3
       Leeper foreshadowed the result in DeQueen. In Leeper, the Fort Worth
Court of Appeals dismissed the plaintiffs’ claims after finding that (i) the
compulsory-attendance law was penal and (ii) the constitutionality of a penal
statute could not be determined in a civil proceeding absent a showing of ir-
reparable injury. 893 S.W.2d at 440. In criticizing the Fort Worth decision, the
Supreme Court stated that “[t]he [Fort Worth] court did not explain . . . why
the rule should preclude a construction of § 21.033(a)(1) without refer-
ence to its constitutionality.” Id. Thus, Leeper suggests the result in
DeQueen—that the UDJA waives sovereign immunity for actions to construe
statutes independent from questions of constitutionality.


                                      12
In Sefzik, the Texas Department of Transportation denied an advertising-

permit application from Sefzik and further denied Sefzik’s request for an oral

hearing. Sefzik filed suit, arguing that TxDOT’s failure to provide a hearing

violated (i) the Due Process and Equal Protection Clauses of the United States

and Texas Constitutions and (ii) the “contested case” procedures of the Texas

Administrative Procedures Act. See id. at 620 & n.1 (citing Tex. Gov’t Code §

2001.051). 4 On appeal, Sefzik abandoned his constitutional claims and instead

sought only a declaration that the Administrative Procedures Act entitled him

to a hearing. Id. at 620, 621 n.2. Sefzik’s claim thus distanced his case from

DeQueen—rather than seeking a construction of § 2001.051, Sefzik sought a

declaration on whether TxDOT had complied with § 2001.051. That question

is fundamentally an ultra vires claim, not a question of statutory construction.

Relying principally on Heinrich, the Supreme Court held that, because Sefzik

“challeng[ed] TxDOT’s actions under [the Administrative Procedures Act],”

the state was immune from suit, even though “the same claim could be

brought against the appropriate state official under the ultra vires exception.”

Id. at 621-22. Sefzik cited Leeper with approval in its analysis. Id. at 622. But

it did not explicitly overrule Leeper, nor did it cite (or overrule) DeQueen.
   4
        Section 2001.051 provides that, “[i]n a contested case, each party is en-
titled to an opportunity: (1) for hearing after reasonable notice of not less than
10 days; and (2) to respond and to present evidence and argument on each is-
sue involved in the case.”


                                       13
       Neither Sefzik nor DeQueen purported to break new ground. Instead,

Sefzik appeared as a run-of-the-mill application of Heinrich, and DeQueen ap-

plied Heinrich and Leeper. Given this, Sefzik cannot be read to overrule

DeQueen and Leeper. DeQueen explicitly found that the UDJA waived sover-

eign immunity for claims to construe a statute, and cited to footnote 6 in Hein-

rich in reaching that conclusion. DeQueen, 325 S.W.3d at 634-35. Sefzik, in

contrast, did not expressly consider whether a claim to construe a statute

waived sovereign immunity, and instead reaffirmed that a claim challenging

agency action cannot overcome sovereign immunity. 355 S.W.3d at 620, 621

n.2.5 Further, if Sefzik had held that sovereign immunity barred all claims

seeking construction of a statute under the UDJA, Sefzik would overrule

Leeper, as Leeper solely addressed a statutory construction claim (and thus

formed the singular basis to exercise jurisdiction). But the Texas Supreme

Court has not abandoned Leeper—the Supreme Court cited Leeper approving-

ly in Sefzik and relied on Leeper, Sefzik, and DeQueen in a recent opinion. See

Patel v. Tex. Dept. of Licensing & Regulation, 469 S.W.3d 69, 76 (Tex.

2015); see also CR201 (TABC Reply at 13) (admitting that Leeper has not

been overruled).
   5
      “Sefzik is not challenging the validity of a statute; instead, he is chal-
lenging TxDOT’s actions under it, and he does not direct us to any provision
of the UDJA that expressly waives immunity for his claim.” Sefzik, 355
S.W.3d at 622.


                                      14
      Pre-Sefzik, the Austin Court of Appeals had found that a declaratory-

judgment claim seeking an interpretation of a statute waives sovereign im-

munity, as in Leeper and DeQueen:

         · Star Houston, Inc. v. Tex. Dep’t of Transp., 957 S.W.2d 102, 111
           (Tex. App.—Austin 1997, pet. denied) (“The Texas Supreme
           Court has interpreted [the UDJA] as: (1) a waiver of sovereign
           immunity from suits brought to construe or determine the validity
           of statutes, and (2) a waiver of sovereign immunity for attorneys’
           fees sought in conjunction with those suits.”).

         · Tex. Mun. Power Agency v. Pub. Util. Com’n, 100 S.W.3d 510,
           516 (Tex. App.—Austin 2003, pet. denied) (“Therefore, when
           the State is a necessary party to a statutory cause of action, such
           as a UDJA action for interpretation of a statute, sovereign im-
           munity is expressly waived because, were the State not joined,
           the right to a declaration would have no practical effect.”).

      Post-Sefzik, however, the Austin Court of Appeals has stated incon-

sistent positions as to whether the UDJA waives sovereign immunity in statu-

tory construction cases. Compare Tex. State Bd. of Vet. Med. Examiners v.

Giggleman, 408 S.W.3d 696, 707 (Tex. App.—Austin 2013, no pet.) (charac-

terizing Sefzik as “emphasizing that UDJA waives state agencies’ immunity

only as to claims seeking declarations regarding a statute’s validity, not for

claims merely seeking construction or enforcement of a statute”); with

Pharmserv, Inc. v. Tex. Health & Human Servs. Comm’n, No. 03-13-00526-

CV, 2015 WL 1612006, at *8 (Tex. App.—Austin Apr. 9, 2015, no pet.)

(“While the UDJA does waive a governmental entity’s immunity for a



                                     15
declaration construing a statute, Pharmserv does not simply seek construc-

tion of a statute; rather, it is challenging the state’s actions under certain stat-

utes, and it does not cite any provision of the UDJA that expressly waives

immunity for such claims.”).6

       The Texas Supreme Court has refused to state that the sovereign-

immunity waiver is limited to claims challenging the validity of statutes, de-

spite having the opportunity to do so. See Sefzik, 355 S.W.3d at 622 (“Alt-

hough the UDJA waives sovereign immunity in particular cases, Sefzik’s

claim does not fall within the scope of those express waivers. For example,

the state may be a proper party to a declaratory judgment action that challeng-

es the validity of a statute.”); Patel, 469 S.W.3d at 76 (characterizing Sefzik as

“restating that state entities can be—and in some instances such as when the

constitutionality of a statute is at issue, must be—parties to challenges under

the UDJA”).

       Here, McLane’s declaratory-judgment claim against the TABC does

not challenge agency action. Instead, McLane asks for a resolution of the par-

ties’ competing interpretations of the PIA. Specifically, McLane asks the
   6
       Admittedly, the Dallas Court of Appeals agrees with the TABC’s inter-
pretation of Sefzik. That court held that the sovereign-immunity waiver in the
UDJA extends only to claims raising constitutional challenges. See City of
McKinney v. Hank’s Rest. Grp., 412 S.W.3d 102, 112 (Tex. App.—Dallas
2013, no pet.) (noting the waiver “is limited to claims challenging the validity
of ordinances or statutes”).


                                        16
Court to determine if the PIA, properly construed, (i) gives an agency discre-

tion to determine when to search and produce public information, even if that

determination results in delay, and (ii) allows an agency to restrict the scope

of its search. The declaration will inform McLane’s position on the current as

well as other extant and future TABC public-information requests—i.e., the

declaratory-judgment claim seeks a statutory construction that affects all of

McLane’s public-information requests (and, likely, requests by others to the

TABC as well). The Austin Court of Appeals approved this type of relief in

Texas Municipal Power:

            An APA appeal allows a district court to rule on a
            particular Commission order, but the UDJA action
            brought in this case asks for a determination of the
            Commission’s general authority to adjudicate the
            underlying dispute. Thus, a final determination of
            Municipal Power’s UDJA claim would resolve not
            only the legal status of PUC Docket number 22055
            but the underlying controversy re-visited in all
            three Commission orders. . . . The question posed
            to the court by Municipal Power’s UDJA action is
            broader than the effectiveness of one particular or-
            der and requests relief more expansive than the re-
            versal of a particular Commission determination.
            The narrow appellate procedure provided by
            the APA to attack a particular Commission or-
            der . . . does not displace the district court’s
            ability to determine the scope of an agency’s au-
            thority through a properly brought UDJA ac-
            tion, as we encounter in this case.




                                      17
100 S.W.3d at 519 (italics in original); see also Tex. Mun. Power Agency v.

Pub. Util. Com’n, 253 S.W.3d 184, 200 (Tex. 2008) (quoting the same and

suggesting agreement). As in Texas Municipal Power, the Court has subject-

matter jurisdiction to construe the PIA divorced from any particular public-

information request.

      In summary, McLane requests that the Court consider the above-cited

Texas Supreme Court opinions to determine whether the reasoning of Leeper

and DeQueen survives Heinrich and Sefzik. McLane respectfully submits that

the Supreme Court has not overruled Leeper or DeQueen. The Court should

thus find that a declaratory-judgment claim to construe a statute waives sover-

eign immunity under the plain text of the UDJA, Leeper, and DeQueen.

      C.     The Court Should Exercise Jurisdiction Over McLane’s
             Ultra Vires Claim Against Ms. Cook

      McLane’s ultra vires claim against Ms. Cook is proper because McLane

alleges that she violated non-discretionary obligations imposed by the PIA. If

Ms. Cook has some discretion when complying with the PIA obligations-at-

issue, McLane’s ultra vires claim is still proper, as Ms. Cook does not have

absolute discretion and McLane alleges that she exceeded any limited discre-

tion granted to her by the PIA.




                                      18
             1.    Under Heinrich, the Court Should Exercise
                   Jurisdiction Over McLane’s Claim that Ms. Cook
                   Violated Non-Discretionary Statutory Duties

      McLane’s ultra vires claim arises from four independent, non-

discretionary duties imposed by the PIA: (i) the duty to “promptly” search for

and provide public information, (ii) the duty to engage in a comprehensive

search that uncovers all responsive public information, (iii) the duty to pro-

duce all responsive, non-excepted public information, and (iv) the duty to

provide a certification setting forth a reasonable time when requested public

information will be available if it cannot be produced within 10 business days.

McLane brought its ultra vires claim to require Ms. Cook to comply with

these four statutory duties. Houston Belt, 487 S.W.3d at 164 (“[U]ltra vires

suits do not attempt to exert control over the state—they attempt to reassert

the control of the state . . . . [and] encourage[] enforcement of existing poli-

cy.”) (quotations and citation omitted). As explained below, each duty is

grounded in the text of the PIA and is non-discretionary.

      Duty to “Promptly” Search. First, the PIA states that Ms. Cook “shall

promptly produce public information for inspection, duplication, or both on

application by any person to the officer,” and defines “promptly” to mean “as

soon as possible under the circumstances, that is, within a reasonable time,

without delay.” Tex. Gov’t Code § 552.221. As a result, § 552.221 imposes



                                      19
the duty for Ms. Cook to “promptly” produce (and thus search for) public in-

formation “within a reasonable time” and “without delay.”

      Duty for Comprehensive Search. Second, the PIA provides dozens of

specific, substantive, and objective limits on the type of information that must

be produced. See, e.g., §§ 552.025, .026, .103, .1085 (exceptions for tax rul-

ings, education records, settlement negotiations and crime-scene images).

These limitations control the scope of Ms. Cook’s search. If Ms. Cook could

arbitrarily restrict the items searched, she would create additional categories

of documents excepted from disclosure. For example, if Ms. Cook declined to

search TABC employees’ “deleted items” email folders, she would create a de

facto exclusion for otherwise responsive public information located only in

“deleted items” folders. As a second example, if Ms. Cook declined to search

the paper files at the TABC’s Arlington field office, she would create a de fac-

to exclusion for otherwise responsive public information located only in those

files. Because the PIA tightly controls and defines information excepted from

public disclosure, see §§ 552.022-552.156 (defining public information and

exceptions), the PIA imposes a non-discretionary duty to engage in a compre-

hensive search that uncovers all responsive public information.

      Duty to Make Information Available. Third, the PIA states that Ms.

Cook “shall . . . make public information available for public inspection and



                                      20
copying[.]” § 552.203(1). The PIA thus imposes a duty on Ms. Cook to pro-

duce all requested, non-excepted public information.

      Duty to Set a Reasonable Date for Production. Fourth, the PIA pro-

vides that Ms. Cook, if unable to produce public information within 10 busi-

ness days after a request, must certify that she cannot meet the 10 business

day presumptive deadline and set a production date within a reasonable time.

§ 552.221(d).

      The PIA provisions-at-issue with McLane’s ultra vires claim do not

confer discretion on Ms. Cook. Instead, the relevant provisions state that Ms.

Cook “shall” comply with their terms:

         · “552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC
           INFORMATION. Each officer for public information, subject to
           penalties provided in this chapter, shall (1) make public infor-
           mation available for public inspection and copying[.]”

         · “552.221. APPLICATION FOR PUBLIC INFORMATION;
           PRODUCTION OF PUBLIC INFORMATION. (a) An officer
           for public information of a governmental body shall promptly
           produce public information for inspection, duplication, or both on
           application by any person to the officer. In this subsection,
           ‘promptly’ means as soon as possible under the circumstances,
           that is, within a reasonable time, without delay.”

         · “(d) If an officer for public information cannot produce public in-
           formation for inspection or duplication within 10 business days
           after the date the information is requested under Subsection (a),
           the officer shall certify that fact in writing to the requestor and
           set a date and hour within a reasonable time when the infor-
           mation will be available for inspection or duplication.”



                                     21
The term “shall” is a command, not a suggestion. See Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (“While Texas Courts have not in-

terpreted ‘must’ as often as ‘shall,’ both terms are generally recognized as

mandatory, creating a duty or obligation.”). This is no surprise—the funda-

mental purpose of the PIA was to ensure that government officials have no

discretion to hide information from the public:

            The people, in delegating authority, do not give
            their public servants the right to decide what is
            good for the people to know and what is not
            good for them to know. The people insist on re-
            maining informed so that they may retain control
            over the instruments they have created.

Tex. Gov’t Code § 552.001(a).

      In short, the PIA does not allow Ms. Cook to selectively ignore, post-

pone, or partially respond to a request for the TABC’s public information. Be-

cause Ms. Cook is “responsible for the release of public information as re-

quired by this chapter,” see § 552.204, she must ensure that the TABC obeys

the mandates of the PIA. As contemplated by Heinrich, McLane brings an ul-

tra vires claim to require Ms. Cook to comply with her non-discretionary stat-

utory duties. 284 S.W. 3d at 372.

      Ms. Cook argues that McLane cannot assert an ultra vires claim be-

cause her statutory duties are not mandatory, arguing that the PIA “builds in

discretion that allows a governmental body to determine how to comply” and


                                      22
“McLane[’s] complaints are about acts within Cook’s discretion[.]” See

CR205, CR208 (TABC’s Reply at 17, 20). Ms. Cook cites only two sections

of the PIA for support: (i) § 552.221(a), which states that Ms. Cook “shall

promptly produce public information” and defines “promptly” to mean “as

soon as possible under the circumstances, that is, within a reasonable time,

without delay”; and (ii) § 552.221(d), which states that, “[i]f an officer for

public information cannot produce public information . . . within 10 business

days . . . the officer shall certify that fact in writing to the requestor and set a

date and hour within a reasonable time when the information will be availa-

ble[.]” CR205 (Id. at 17).

      But the sections of the PIA cited by Ms. Cook do not provide her with

any discretion, much less absolute discretion to delay producing public infor-

mation. That kind of discretion would render the statute impotent—an agency

could avoid producing public information altogether by indefinitely postpon-

ing its search and production. In fact, the statute explicitly prevents Ms. Cook

from indefinitely postponing her search and production. While Ms. Cook may

“set a date and hour” for production, see § 552.221(d), the statute still requires

the production date to be set within “a reasonable time” and the production to

be made “without delay,” see § 552.221(a), (d). In other words, Ms. Cook




                                        23
cannot artificially set a date and hour that would result in delay, because that

procedure would contravene the mandates set forth in § 552.221(a) and (d).

      Additionally, this requirement (that Ms. Cook “set a date and hour

within a reasonable time” when production will occur) precludes the very be-

havior at issue here: Ms. Cook has engaged in an extended, rolling production

of documents, accompanied by seriatim promises for further documents, in-

stead of completing her search and production by a date certain. Here,

McLane contends that Ms. Cook did not “set a date and hour within a reason-

able time” for production to occur. CR101-02; CR186-87. Ms. Cook has no

discretion to ignore the plain terms of § 552.221(d), and her failure to comply

with the statute supports McLane’s ultra vires claim.

      Further, Ms. Cook failed to show that the PIA allows her to narrow the

scope of her search to avoid finding and producing responsive public infor-

mation. And allowing Ms. Cook to do so would eviscerate the statute—an

agency could avoid producing responsive public information by creatively

limiting its search to avoid finding responsive information. See § 552.221 (re-

quiring production of public information). The statute only limits the scope of

search by exempting state libraries from the search, and does not provide Ms.

Cook with discretion to rewrite the statute to exempt public information locat-

ed in particular places. See § 552.227.



                                          24
      In the same vein, Ms. Cook cannot seriously contest her non-

discretionary duty to produce all responsive public information. See §§

552.203(1) (officer for public information “shall” produce public infor-

mation), 552.221(a) (officer for public information “shall promptly produce

public information”). In sum, Ms. Cook has no discretion to refuse to comply

with her duty to perform a comprehensive search that uncovers all responsive

public information, and the duty to produce all responsive, non-excepted pub-

lic information in a prompt manner. McLane contends that Ms. Cook violated

these non-discretionary duties by (i) unreasonably narrowing the scope of her

search to avoid producing public information, (ii) withholding responsive

public information, and (iii) failing to produce public information promptly.

CR101-04.

      Finally, while the PIA states that, if the requested public information

cannot be produced within 10 business days, Ms. Cook must certify the same

and set a “reasonable time” when the information will be available, see §

552.221(d), the statute does not allow Ms. Cook to determine whether the

time she selects is “reasonable” and McLane alleges that Ms. Cook has not

complied with the PIA’s certification requirement. CR101-02. Accepted as

true, McLane’s contentions support an ultra vires claim under Heinrich. 284

S.W.3d at 372.



                                     25
             2.     Under Houston Belt, the Court Should Exercise
                    Jurisdiction over McLane’s Claim that Ms. Cook
                    Exceeded Any Statutory Discretion

      McLane asserts that the PIA does not allow Ms. Cook any discretion to

delay the search and production of public information. See § 552.221(a) (de-

fining “promptly” as “without delay”). But even if the Court were to find that

the PIA provides Ms. Cook limited discretion to delay production (and it

should not), that discretion does not automatically foreclose McLane’s ultra

vires claim: Houston Belt states in no uncertain terms that a suit “complaining

of a government officer’s exercise of limited discretion by alleging that the

officer acted without legal authority is a viable ultra vires claim.” 487 S.W.3d

at 158 (alteration and citations omitted; emphasis added); see also id.

(“[G]overnmental immunity . . . does not protect every act by a government

officer that requires some exercise of judgment—a government officer with

some discretion to interpret and apply a law may nonetheless act ‘without le-

gal authority,’ and thus ultra vires, if he exceeds the bounds of his granted au-

thority or if his acts conflict with the law itself.”) (emphasis omitted).

      For example, in Houston Belt, because the ordinance-at-issue “express-

ly defined” a term, the Texas Supreme Court found that a government official

did “not have authority to [act] in a way that conflicts with [that term’s] defi-

nition and usage.” Id. at 167. The Houston Belt opinion also noted that, even



                                        26
though the ordinance-at-issue granted some discretion to determine the area of

“impervious surfaces,” that discretion was cabined by other sections of the

statute that restrained the types of data the official could use in calculating that

area. Id. at 168. The key holding of Houston Belt controls here: the Houston

Belt plaintiffs properly stated an ultra vires claim by alleging that the official

“acted outside his discretion,” even though he had some discretion under the

statute. Id. at 169.

       Under Houston Belt,

              [G]overnmental immunity bars suits complaining
              of an exercise of absolute discretion but not suits
              complaining of either an officer’s failure to per-
              form a ministerial act or an officer’s exercise of
              judgment or limited discretion without reference to
              or in conflict with the constraints of the law au-
              thorizing the official to act. Only when such abso-
              lute discretion—free decision-making without any
              constraints—is granted are ultra vires suits abso-
              lutely barred.

Id. at 163 (bold emphases added; remaining emphases in original).

       Accordingly, even if the Court finds that Ms. Cook has some limited

discretion when complying with the PIA’s provisions-at-issue, the Court

should nevertheless exercise jurisdiction over McLane’s ultra vires claim, be-

cause McLane specifically alleged that Ms. Cook failed to comply with her

obligations under the PIA to (i) produce to McLane public information within

the TABC’s possession, (ii) promptly produce the requested information to


                                        27
McLane, (iii) make reasonable certifications as to when responsive materials

would be produced, and (iv) perform a reasonably comprehensive search for

public information responsive to McLane’s PIA request. See CR88-105

(McLane’s First Amended Pet., ¶¶ 2, 47, 51).

      For example, McLane’s public-information request consisted of two

discrete categories of documents. The identified categories are similar in

scope to routine document requests in civil litigation. In the context of civil

litigation, the Texas Rules of Civil Procedure would require that Ms. Cook

and the TABC respond to requests for these documents within 30 days. Tex.

R. Civ. P. 196.2(a). Here, however, the request has been pending over a year,

and Ms. Cook still has not completed her search and production, nor has she

certified a date by when the search and production will end. CR187 (advising

that the TABC’s production will be made not by a date certain, but only after

another agency concludes its document review).

      Even if the statute gives Ms. Cook discretion to “set a date and hour”

for production, the statute requires the selection to be within a reasonable time

and Ms. Cook to act “without delay.” McLane’s request has been pending

over one year. McLane thus contends that Ms. Cook’s delay has far exceeded

any purported discretion bestowed upon her by the PIA. Houston Belt, 487

S.W.3d at 165 (“If [the government official’s] authority is less than absolute,



                                       28
then he acts ultra vires if he acts outside of his limited authority.”). As in

Houston Belt, the Court “need not conclusively decide” if Ms. Cook over-

stepped her discretion on the plea to the jurisdiction, but should find that

McLane’s allegations “are sufficient to confer the trial court with jurisdiction

over [McLane’s] claim that [Ms. Cook] acted ultra vires” in delaying her re-

sponse to McLane’s public-information request, failing to conduct a proper

search, failing to produce responsive public information, and failing to set a

reasonable date for production. Id. at 169.

                                     ***

      In sum, because McLane alleges that Ms. Cook has not complied with

four non-discretionary duties imposed by the PIA, the Court should exercise

jurisdiction over McLane’s ultra vires claim. Heinrich, 284 S.W. 3d at 372;

Houston Belt, 487 S.W.3d at 169. Even if the Court finds that Ms. Cook has

some discretion when complying with the four duties identified by McLane,

the Court should nevertheless exercise jurisdiction over the ultra vires claim

because McLane alleges that Ms. Cook acted outside of any discretion con-

ferred upon her by the PIA. Houston Belt, 487 S.W.3d at 161.

             3.    In the Alternative, the Court Should Find that the
                   District Court Erred in Failing to Grant McLane Leave
                   to Replead its Ultra Vires Claim Against Ms. Cook

      If the Court finds McLane’s First Amended Petition deficient in assert-



                                       29
ing an ultra vires claim (and it should not), the Court should nevertheless

overrule the district court’s refusal to allow McLane to replead. CR244-45.

On a plea to the jurisdiction, courts “construe the pleadings liberally in the

pleaders’ favor and look to their intent.” Houston Belt, 487 S.W.3d at 160.

“Only if the pleadings affirmatively negate jurisdiction should the plea to the

jurisdiction be granted without affording the plaintiffs an opportunity to re-

plead.” Id.; see also Sefzik, 355 S.W.3d 618 at 623; City of Austin v. Cherry,

03-14-00212-CV, 2015 WL 4508819, at *1 (Tex. App.—Austin July 21,

2015, no pet.).

      Because McLane’s First Amended Petition did not affirmatively negate

jurisdiction, if the Court does not believe that McLane adequately alleged an

ultra vires claim against Ms. Cook, it should reverse the district court’s deci-

sion denying McLane leave to replead and order the district court to permit

McLane an opportunity to replead.

                                  P RAYE R

      For these reasons, the Court should find jurisdiction over McLane’s de-

claratory-judgment claims against the TABC and Ms. Cook.




                                      30
Dated: July 19, 2016        Respectfully submitted,


                            BRETT CHARHON
                             Texas State Bar No. 24040674
                             bcharhon@ccrglaw.com
                            STEVEN CALLAHAN
                             Texas State Bar No. 24053122
                             scallahan@ccrglaw.com
                            CHARHON CALLAHAN
                            ROBSON & GARZA, PLLC
                            3333 Lee Parkway, Suite 460
                            Dallas, Texas 75219
                            Telephone: (214) 521-6400
                            Telecopier: (214) 764-8392

                            Counsel for Intervening Plaintiff-
                            Appellant McLane Company, Inc.




                       31
                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief complies with the requirements of Texas

Rule of Appellate Procedure 9.4. Including the parts of the brief exempted by

Texas Rule of Appellate Procedure 9.4(i)(1), the word count feature of Mi-

crosoft Word indicates that this brief contains 8,017 words.



                                             STEVEN CALLAHAN




                                      32
                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document

was served, in accordance with Texas Rule of Appellate Procedure 9.5(d), by

e-mail on the following attorneys of record for Appellees and the Attorney

General on July 19, 2016:

                             Ann Hartley, Esq.
                         Cynthia A. Morales, Esq.
                   ann.hartley@texasattorneygeneral.gov
                 cynthia.morales@texasattorneygeneral.gov
                   Counsel for the TABC and Sherry Cook

                      Matthew R. Entsminger, Esq.
              matthew.entsminger@texasattorneygeneral.gov
                    Counsel for the Attorney General



                                                                      .
                                           STEVEN CALLAHAN




                                     33
                              AP P E NDI X

EXHIBIT                DESCRIPTION                  CLERK’S RECORD PAGE
  1       Order Granting Plea to the Jurisdiction         CR214
          of TABC
  2       Order Granting Plea to the Jurisdiction         CR215
          of Sherry Cook
Exhibit 1
                                                         CAUSE NO . D-1-GN-15-004380

           TEXAS ALCOHOLIC                                               §         TN THE DISTRICT COURT OF
           BEVERAGE COMMISSION,                                          §
               Plaintiff,                                                §
                                                                         §
          v.                                                             §
                                                                         §
          KEN PAXTON,                                                    §
          ATTORNEY GENERAL OF TEXAS,                                     §
              Defendant                                                  §
                                                                         §
                                                                         §             TRAVIS COUNTY, TEXAS
           MCLANE COMPANY, JNC.,                                         §
              Intervenor-Plaintiff,                                      §
                                                                         §
           v.                                                            §               Filed in The District Court
                                                                         §                of Travis County, Texas
           TEXAS ALCOHOLIC BEVERAGE                                      §
           COMMISSION AND SHERRY COOK,                                   §                     MA'f 3 11l'A·.W
           CHIEF ADMINISTRATIVE OFFICER                                  §               At     '-t :J& p           M.    C.M
           AND OFFICER FOR PUBLIC                                        §               Velva L. Price, District Cler~
           IN FORMATTON OF THE TEXAS                                     §
           ALCOHOLIC BEVERAGE                                            §
           COMMISSION,                                                   §
                Defendants.                                              §             53RD JUDICIAL DISTRICT


                           ORDE R GRANTING PLEA TO THE JURISDIC TION OF TABC

                   On May 31, 2016, the Court heard the Plea to the Jurisdiction fi led by Defendant Texas

        Alcoholic Beverage Commission (TABC), based on sovereign immunity. After hearing argument

        and considering the pleadings, the Court hereby GRANTS the Plea of TABC. Accordingly, the

         claims ofPlaintiff McLane Company, Inc. fi1ed against TABC seeking declaratory relief, including

        all claims made under the Uniform Declaratory Judgments Act, are hereby DISMISSED.

                   Signed this         3 /,.             day   of~ 20 16.
1111111 111111111111111111111111111111 11111 111111111 1111
00461 4049



                                                                             I
          TABC PTJ Grant
                                                                                                                            214
Exhibit 2
                                    CAUSE NO. 0 -1-GN-15-004380

 TEXAS ALCOHOLIC                                      §               IN THE DISTRICT COURT OF
 BEVERAGE COMMISSION,                                 §
     Plaintiff,                                       §
                                                      §
 v.                                                   §
                                                      §
 KEN PAXTON,                                          §
 ATI'ORNEY GENERAL OF TEXAS,                          §
      Defendant                                       §
                                                      §
                                                      §                    TRAVIS COUNTY, TEXAS
 MCLANE COMPANY, INC.,                                §
    Intervenor-Plaintiff,                             §
                                                      §
 v.                                                   §                         Filed in The District Court
                                                      §                          of Travis County, Texas
  TEXAS ALCOHOLIC BEVERAGE                            §
  COMMISSION AND SHERRY COOK,                         §                               MAY 3 1 2016
  CHIEF ADMINISTRATIVE OFFICER
  AND OFFICER FOR PUBLIC
                                                      §
                                                      §
                                                                                               L-1'. I~   p   M.   (..   M
  INFORMATION OF THE TEXAS                            §
  ALCOHOLIC BEVERAGE                                  §
  COMMISSION,                                         §
      Defendants.                                     §                     53RD JUDICIAL DISTRICT


       ORDER GRANTING PLEA TO THE JURISDICTION OF SHERRY COOK

        On May 31, 2016, the Court heard the Plea to the Jurisdiction filed by Defendant Sherry

Cook, sued in her official capacity. Finding the Plea well taken, after hearing argument and

considering the pleadings, the Coun hereby GRANTS the Plea. Accordingly, all claims by

Plaintiff McLane Company, Inc. against Sherry Cook are hereby DISMISSED for lack of

jurisdiction.
                             1J;-
        Signed this ;];; /




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