      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00338-CV



Greg Abbott, in his Official Capacity as Governor of the State of Texas; Kyle Janek, in his
 Official Capacity as Executive Commissioner of the Texas Health and Human Services
 Commission; Jon Weizenbaum, in his Official Capacity as Commissioner of the Texas
   Department of Aging and Disability Services; Laura Cazabon-Braly, in her Official
  Capacity as Director of the Austin State Supported Living Center; Mike Davis, in his
     Official Capacity as Director of the Mexia State Supported Living Center; and
                 Gale Wasson, in her Official Capacity as Director of the
                    Lufkin State Supported Living Center, Appellants

                                                 v.

       G.G.E, E.M.B, and G.D.E. through their next friend, Geoffrey Courtney; and
                          Disability Rights Texas, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
         NO. D-1-GN-11-000273, HONORABLE TIM SULAK, JUDGE PRESIDING



                                          OPINION


               In this interlocutory appeal, Appellants Greg Abbott, in his official capacity as

Governor of the State of Texas; Kyle Janek, in his official capacity as Executive Commissioner of

the Texas Health and Human Services Commission (HHSC); Jon Weizenbaum, in his official

capacity as Commissioner of the Texas Department of Aging and Disability Services (DADS);

Laura Cazabon-Braly, in her official capacity as Director of the Austin State Supported Living

Center; Mike Davis, in his official capacity as Director of the Mexia State Supported Living Center;
and Gale Wasson, in her official capacity as Director of the Lufkin State Supported Living Center

(collectively, State Defendants)1 appeal the trial court’s denial of their plea to the jurisdiction.

                Appellees G.G.E., E.M.B., and G.D.E. (the Individual Plaintiffs), through their next

friend Geoffrey Courtney, and Disability Rights Texas (DRTx) (collectively Plaintiffs) filed suit

asserting: (1) procedural due course of law claims under the Texas Constitution based on the

continued confinement of the Individual Plaintiffs in state supported living centers (SSLCs) without

periodic judicial review of their commitment orders; and (2) claims for substantive due course of law

violations under the Texas Constitution and violations of the Persons with Mental Retardation Act

(PMRA) based on the State Defendants’ failure to provide the Individual Plaintiffs with community

referrals, despite the judgment of their treatment teams that they could live in less restrictive

environments. The State Defendants filed a plea to the jurisdiction challenging the Plaintiffs’

standing and asserting other jurisdictional claims. For the reasons that follow, we affirm the trial

court’s denial of the plea to the jurisdiction.


                      FACTUAL AND PROCEDURAL BACKGROUND

                SSLCs (formerly State Schools) are state-supported residential facilities operated by

DADS to provide a continuum of services to persons with mental retardation, including medical

care, specialized therapy, and training in the acquisition of personal, social, and vocational skills.2

        1
          The notice of appeal and prior filings in the trial court reference the former Governor,
Commissioners of HHSC and DADS, and the former Directors of the Austin and Mexia SSLCs.
Pursuant to Texas Rule of Appellate Procedure 7.2, the successors to these public officials have been
automatically substituted as parties to this litigation. See Tex. R. App. P. 7.2(a).
        2
        Weizenbaum, as the executive commissioner of DADS, reports to Janek, as the executive
commissioner of HHSC, the umbrella agency over a number of health and human service agencies,

                                                   2
See Tex. Health & Safety Code § 531.002(17). Involuntary commitment to an SSLC is governed

by chapter 593 of the PMRA. See generally id. §§ 593.001–.093. Under the PMRA, a proposed

resident receives a judicial hearing with legal representation and may not be committed unless the

trial court determines the proposed resident is a person with mental retardation and because of the

disability, the person: (1) presents a substantial risk of physical impairment or injury to himself or

others; or (2) is unable to provide for and is not providing for his most basic personal physical needs;

and (3) cannot be adequately and appropriately habilitated in an available less restrictive setting and

the residential care facility provides habilitative services, care, training, and treatment appropriate

to the proposed resident’s needs. Id. §§ 593.043, .048–.052.

                Once a trial court issues a commitment order, the length of an adult’s involuntary

commitment to an SSLC is indefinite and will not be automatically reviewed again by the issuing

court. See id. §§ 593.052 (no specified term for involuntary commitment order), 594.001–.019 (no

provision for post-commitment judicial review of commitment order).3 The PMRA does, however,

provide that a person with mental retardation has the right to live in the least restrictive setting

appropriate to the person’s individual needs, and that a resident of an SSLC should be discharged

or transferred if the resident’s placement is no longer appropriate to the person’s individual needs

or the resident can be better treated and habilitated in another setting and placement in another

setting has been secured. Id. §§ 592.013, 594.011.


including DADS. See Tex. Gov’t Code § 531.001(4). Cazabon-Braly, Davis, and Wasson, as
directors of SSLCs, are responsible for the administration of the SSLCs in compliance with
applicable statutes and regulations. See Tex. Health & Safety Code § 551.0225.
       3
          The PMRA does not alter or limit a resident’s right to obtain a writ of habeas corpus.
Id. § 594.003.

                                                   3
               Although the PMRA itself does not provide review procedures to assess the

appropriateness of a resident’s continued commitment, DADS has developed internal review

procedures to assess whether a resident should remain in an SSLC or move to an alternate living

arrangement. See 40 Tex. Admin. Code §§ 2.274 (2009) (Tex. Dep’t of Aging & Disability Servs.,

Consideration of Living Options for Individuals Residing in State MR Facilities), 2.275 (2001)(Tex.

Dep’t of Aging & Disability Servs., Accessing Alternative Living Arrangements for an Individual

Residing in a State MR Facility Who Has the Ability to Provide Legally Adequate Consent or Has

a Legally Authorized Representative), 2.276 (2006) (Tex. Dep’t of Aging & Disability Servs.,

Accessing Alternative Living Arrangements for an Individual Residing in a State MR Facility Who

Does Not Have the Ability to Give Legally Adequate Consent and Who Does Not Have a Legally

Authorized Representative).

               Under the internal review procedures, each resident is assigned an interdisciplinary

team (IDT) which meets at least annually to assess whether the SSLC is the most appropriate living

arrangement for the individual and to provide a recommendation as to whether the individual should

remain in the SSLC or move to an alternative living arrangement. Id. §§ 2.274(g)(4), 2.275–.276.

Members of the IDT include, at a minimum, the resident, the resident’s legally authorized

representative, if any, and the professional and direct care staff of the SSLC who provide services

to the resident. Id. § 2.253(20) (Texas Dept. of Aging and Disability Servs., Definitions). A

determination by an IDT that a resident could live in a less restrictive environment does not

guarantee a resident the right to move from an SSLC, however, as the resident’s IDT must also




                                                4
provide a recommendation for community referral and the IDT and SSLC must then comply with

numerous procedures to complete the formal referral process. Id. §§ 2.275–.278.

               The Individual Plaintiffs are persons with intellectual disabilities, see Tex. Health &

Safety Code § 591.003(15-a), who have been confined to SSLCs for many years.4 G.G.E. and

G.D.E. were voluntarily committed by their parents when they were minors and later involuntarily

committed as adults under the Mentally Retarded Persons Act of 1977.5 E.M.B. was involuntarily

committed in 1951 at the age of six after being adjudged “feeble-minded” by the Dallas County

Court. None of the Individual Plaintiffs has had a judicial review of his or her commitment order

since being involuntarily committed. According to the Plaintiffs’ pleadings, the IDTs for the

Individual Plaintiffs have determined that their respective needs could be met in a less restrictive

environment, but to date none has been discharged through a community referral.


Prior Department of Justice Investigation

               In March 2005, pursuant to its authority under the Civil Rights of Institutionalized

Persons Act, see 42 U.S.C. § 1997a, the United States Department of Justice began an investigation

of conditions at the Texas SSLCs. As a result of the investigation, the United States filed a lawsuit

against the State of Texas alleging conditions at the SSLCs violated federal law. The lawsuit

culminated in a settlement agreement (Consent Decree) approved by the United States District Court



       4
         G.G.E. has been confined for more than 40 years, E.M.B. for more than 60 years, and
G.D.E. for more than 38 years.
       5
          Act of May 12, 1977, 65th Leg., R.S., ch. 294, § 37, 1977 Tex. Gen. Laws 772, 783–789,
repealed by Act of Apr. 29, 1991, 72nd Leg., R.S., ch. 76, § 1, 1991 Tex. Gen. Laws 515, 647–48
(current version at Tex. Health & Safety Code § 593.052.)

                                                 5
for the Western District of Texas in 2009. The Consent Decree requires the State to make many

changes at SSLCs, including detailed provisions for planning, carrying out, and following up on the

movement of residents from SSLCs to community placements. The Consent Decree additionally

called for professional monitors to inspect each SSLC twice a year to assess progress. The record

does not contain the results of these inspections, but the parties appear to agree that the SSLCs have

not reached full compliance with the terms of the settlement agreement.


Current Litigation Commenced

               DRTx is a nonprofit protection and advocacy organization created under the federal

Protection and Advocacy for Mentally Ill Individuals Act, see id. §§ 10801–10851, and the

Developmental Disabilities Assistance and Bill of Rights Act, see id. §§ 15041–15045, which, as

a condition of federal funding, must “pursue administrative, legal, and other appropriate remedies

to ensure the protection of individuals with mental illness who are receiving care or treatment in the

State.” Id. § 10805(a)(1)(B). Through its work, DRTx learned of the commitment circumstances

of the Individual Plaintiffs. In January 2011, attorneys for DRTx filed suit on behalf of the

Individual Plaintiffs through their next friend Geoffrey Courtney.

               In their amended petition, the Plaintiffs allege that the continued confinement of the

Individual Plaintiffs in SSLCs without periodic judicial review violates the Individual Plaintiffs’

right to procedural due course of law under the Texas Constitution, see Tex. Const. art. I, § 19, and

that the State Defendants’ failure to provide the Individual Plaintiffs with a community

referral—despite the determination of their respective IDTs that their needs could be met in a less

restrictive environment—violates the Individual Plaintiffs’ right to substantive due course of law

                                                  6
under the Texas Constitution, see id., and their rights under the PMRA—including the right to reside

in the least restrictive setting appropriate to their needs.6 See Tex. Health & Safety Code § 592.013.

                Plaintiffs seek declarations that the indefinite involuntary commitment of the

Individual Plaintiffs without judicial review of their commitment orders violates the Texas

Constitution’s guarantee of procedural due course of law, and that the State Defendants’ failure to

provide community referrals for the Individual Plaintiffs violates both the PMRA and substantive

due process guarantees under the Texas Constitution. In addition to declaratory relief, Plaintiffs

additionally seek injunctive relief to prohibit the State Defendants from continuing the involuntary

commitment of all SSLC residents without periodic judicial review, and to require the State

Defendants to ensure that all residents of SSLCs who have been determined to be appropriate for

community placement are discharged through a community referral. Plaintiffs additionally seek

attorney’s fees under the UDJA.

                In their plea to the jurisdiction, the State Defendants asserted the Plaintiffs lack

standing because: (1) their claims are not redressable by any permissible relief against the State

Defendants; (2) Courtney lacks authority to act as next friend for the Individual Plaintiffs; and (3)

DRTx has neither organizational nor associational standing. The State Defendants additionally

argued that the Consent Decree takes precedence over any remedy the Plaintiffs could obtain from

the trial court, and the trial court had no jurisdiction over the Plaintiffs’ claims for violations of the




        6
          The Individual Plaintiffs also seek to maintain the suit as a class, an issue not yet reached
by the trial court.

                                                    7
PMRA under the UDJA. The State Defendants additionally filed a verified motion to show authority

also challenging Courtney’s authority to represent the Individual Plaintiffs.

                In response to the State Defendants’ plea to the jurisdiction, the United States filed

a statement of interest with the trial court stating that the U.S. has an interest in this litigation

because it implicates the interpretation of the prior Consent Decree between the U.S. and Texas. In

its statement, the U.S. states its position that the imposition of periodic judicial review of involuntary

commitment orders would supplement—rather than conflict—with the terms of the Consent Decree:


        To the extent that Plaintiffs seek the imposition of periodic judicial review in
        addition to the annual internal review process set out in the Consent Decree,
        Plaintiffs’ claims and prayers for relief do not conflict with the terms of the Consent
        Decree. On its face, Plaintiffs’ complaint does not seek to disrupt the Consent
        Decree’s annual internal review process, but rather, to supplement that process with
        an additional mechanism for discharge of individuals to the most integrated setting
        appropriate to their needs. In this regard, the Consent Decree expressly contemplates
        and reconciles the existence of parallel mechanisms for discharging individuals to the
        community, including court-ordered discharge.


In its statement, the U.S. took no position on the merits of the Plaintiffs’ claims.

                Following the hearing on the plea to the jurisdiction, at which the State Defendants

asserted that the relief sought would conflict with the Consent Decree, the U.S. filed a supplemental

statement of interest reiterating its position that the periodic judicial review of commitment orders

would not conflict with the Consent Decree. The supplemental statement, however, additionally

addressed the injunctive relief sought by the Plaintiffs and stated that the U.S. would insist that any

discharge of residents occur in compliance with the terms of the Consent Decree, requiring that all

discharges occur safely and that the residents’ needs must be met in their community placement:



                                                    8
       The Consent Decree between the United States and the State requires all discharges
       occur safely and that individuals’ needs are met in their new setting. To the extent
       that relief in this case results in the discharge of individuals from SSLCs, the United
       States will continue to insist that the Consent Decree be fully implemented.


The U.S. again took no position on the merits of the Plaintiffs’ suit.

               After hearing the plea to the jurisdiction and the motion to show authority

concurrently, the trial court denied both motions.7


                                           DISCUSSION

               On appeal, the State Defendants raise numerous issues challenging the Plaintiffs’

standing, contending: (1) Courtney does not have authority to represent the Individual Plaintiffs as

next friend and DRTx lacks associational or organizational standing; and (2) the Individual Plaintiffs

lack standing to pursue their procedural and substantive due course of law claims because a

favorable decision would not redress their alleged injuries. In addition, the State Defendants

challenge the Individual Plaintiffs’ claims for violations of the PMRA, contending that the trial court

has no jurisdiction over these claims under the UDJA because: (1) the civil penalties prescribed by

the PMRA are the Individual Plaintiffs’ exclusive remedy for violations of their rights under the

statute; and (2) if declaratory relief is allowed, the APA provides the exclusive remedy for invaliding

state agency policies and procedures.




       7
       The only additional evidence presented at the hearing was a reference guide published
by DADS.

                                                  9
Standard of Review

                We review a trial court’s decision on a rule 12 motion for an abuse of discretion

where, as here, there is a best-interest consideration at play in the case. See Urbish v. 127th

Judicial Dist. Court, 708 S.W.2d 429, 432 (Tex. 1986); cf. Metz v. Lake LBJ Mun. Util. Dist.,

No. 03-01-00312-CV, 2002 WL 31476887 at *4 (Tex. App.—Austin Nov. 7, 2002, no pet.) (district

court’s finding that attorney lacked authority to file or maintain suit, where there was no best-interest

consideration, was conclusion of law reviewed de novo). A trial court abuses its discretion if it acts

without reference to any guiding rules and principles or clearly fails to analyze or apply the law

correctly.   City of Dallas v. Vanesko, 189 S.W.3d 769, 771 (Tex. 2006) (citing Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

                A plea to the jurisdiction is among the procedural mechanisms through which a party

may challenge a trial court’s authority to decide the subject matter of a specific cause of action. See

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Texas Dep’t of State

Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d). A plea

questioning the trial court’s subject-matter jurisdiction raises a question of law that we review de

novo. See Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).

                The State Defendants’ plea to the jurisdiction challenges the Plaintiffs’ pleadings and

not the existence of jurisdictional facts. See id. Accordingly, we must determine if the Plaintiffs

have alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. See id.;

Miranda, 133 S.W.3d at 226. To determine whether this authority exists, we look to the contents

of the claimant’s live pleadings. Miranda, 133 S.W.3d at 226. The claimant has the initial burden



                                                   10
of alleging facts that would affirmatively demonstrate the trial court’s jurisdiction to hear the cause.

Id. Mere unsupported legal conclusions do not suffice. See Balquinta, 429 S.W.3d at 737–38. We

construe the pleadings liberally in favor of jurisdiction, taking them as true in the first instance, and

look to the pleader’s intent. Westbrook, 231 S.W.3d at 405; Miranda, 133 S.W.3d at 226. If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but

do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency, and the Plaintiffs should be afforded the opportunity to amend. See Miranda,

133 S.W.3d at 226. If the pleadings affirmatively negate the existence of jurisdiction, then a plea

to the jurisdiction may be granted without allowing the Plaintiffs an opportunity to amend. See id.

                The State Defendants’ issues on appeal also raise questions of statutory construction.

Statutory construction is a question of law that we review de novo.                 State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006). Our primary objective in construing statutes is to give effect to

the legislature’s intent, which we seek first and foremost in the statutory text. Id.; Combs v. Chapal

Zenray, Inc., 357 S.W.3d 751, 755–56 (Tex. App.—Austin 2011, pet. denied). If the statute is clear

and unambiguous, we must apply its words according to their common meaning without resort to

rules of construction or extrinsic aids. Shumake, 199 S.W.3d at 284.


Next Friend’s Authority to Represent Individual Plaintiffs

                As a preliminary matter, we begin with the State Defendants’ third issue on appeal:

whether Courtney has authority to prosecute this suit as next friend for the Individual Plaintiffs, who

are all adults and have no familial relationship with Courtney. The suit was initially filed by DRTx

on behalf of the Individual Plaintiffs through Courtney as their next friend pursuant to Texas Rule

                                                   11
of Civil Procedure 44, which allows persons non compos mentis who have no legal guardian to sue

and be represented by a next friend. Tex. R. Civ. P. 44; see also Austin Nursing Ctr., Inc. v. Lovato,

171 S.W.3d 845, 849 (Tex. 2005) (incompetents lack capacity to sue due to their legal disability and

may appear in court only through legal guardian, next friend, or guardian ad litem).

                The State Defendants concede that the Individual Plaintiffs lack the capacity to

proceed in this lawsuit without a guardian or next friend representing their interests. In their verified

motion to show authority, the State Defendants argued only that under this Court’s prior opinion,

Saldarriaga v. Saldarriaga, Courtney was not authorized to represent the Individual Plaintiffs

because he had not been appointed next friend by a process equivalent to a guardianship proceeding

under the Probate Code, and that he was not qualified to serve as next friend because of a conflict

of interest. See 121 S.W.3d 493, 498–99 (Tex. App.—Austin 2003, no pet.).

                At the hearing on the motion to show authority, Courtney testified that he was a

lawyer experienced with disability rights law, that he had completed courses with the State Bar of

Texas authorizing him to serve as an attorney ad litem, and that he had served in that capacity in

many suits. With regard to the present suit, he testified that he had been approached by DRTx to

evaluate the appropriateness of community placement for the Individual Plaintiffs. After meeting

the Individual Plaintiffs and reviewing their records, Courtney testified that he determined they were

appropriate candidates for community placement and proceeded with filing this suit on their behalf

as next friend without complying with the procedural requirements for appointment of guardians




                                                   12
under the Probate Code. See Tex. Estates Code § 1101.101.8 At the hearing, the State Defendants

conceded that the Individual Plaintiffs lacked the capacity to protect their own legal interests but

contested Courtney’s authority to represent them as next friend. The trial court found that Courtney

did not have an interest in the suit conflicting with the interests of the Individual Plaintiffs and

permitted Courtney to proceed as next friend.

               Texas Rule of Civil Procedure 44 provides that persons non compos mentis who have

no legal guardian9 may be represented by a next friend, but as we have recognized this “rule does not

provide for any kind of procedure for the appointment of a next friend.” Saldarriaga, 121 S.W.3d

at 498 (emphasis in original); see also Gallegos v. Clegg, 417 S.W.2d 347, 352 (Tex. Civ.

App.—Corpus Christi 1967, writ ref’d n.r.e.) (noting rules of procedure do not prescribe

qualifications of person acting as next friend). It merely gives minors and incapacitated persons the

ability to sue and appear by a representative. Saldarriaga, 121 S.W.3d at 498. Further, Rule 44 does

not require that the next friend have a familial or other relationship with the person they seek to

represent, and any competent adult acting in good faith may appear as next friend. See Tex. R. Civ.

       8
         Effective January 1, 2014, the Texas Probate Code was repealed and recodified in the
Texas Estates Code. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, 2009 Tex. Gen. Laws 1512,
1512–1732. The new codification is without substantive change and its purpose is to make the law
“more accessible and understandable.” See Tex. Estates Code § 21.001.
       9
           According to the Plaintiffs’ pleadings, none of the Individual Plaintiffs had a guardian or
legally authorized representative when this suit was filed. During oral argument, DRTx informed
the court that a guardian has been appointed for G.G.E. during the course of this litigation. In suits
and claims by and against a ward, the legal guardian must act for the ward. See Quada v. Quada,
396 S.W.2d 232, 234 (Tex. Civ. App.—Texarkana 1965, no writ); McGinnis v. McGinnis,
267 S.W.2d 432, 435–36 (Tex. Civ. App.—San Antonio 1954, no writ); Wesner v. Woodson,
111 S.W.2d 354, 356 (Tex. Civ. App.—Beaumont 1937, writ ref’d); see also Tex. R. Civ. P. 44. If
a guardian has been appointed for G.G.E., the guardian must forthwith represent G.G.E.’s interests
in this suit.

                                                 13
P. 44; Gordy v. Alexander, 550 S.W.2d 146, 150 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.);

Gallegos, 417 S.W.2d at 352. Therefore, we are presented with the question of what procedure, if

any, was Courtney required to follow before proceeding as next friend for the Individual Plaintiffs.

                  In Saldarriaga, we were presented with the same question and found that, where fact

issues exist as to the competence or consent of an adult alleged to be non compos mentis, the

appointment of a next friend—for due process purposes—should parallel procedures established in

the probate court for appointment of guardians. 121 S.W.3d at 499; see also Lindly v. Lindly,

113 S.W. 750, 752–53 (Tex. 1908) (when fact issues exists as to person’s incompetency or consent

to next friend’s representation, personal liberties involved necessitate further inquiry by trial court

into person’s mental capacity before proceeding). Compliance with the procedural safeguards

afforded by the Estates Code is necessary when capacity or consent are contested because, if in fact

a person is competent, he is entitled to appear in person or through a representative of his choice.

See Saldarriaga, 121 S.W.3d at 500 (“The probate code contains uniform, strict procedural

safeguards to protect a person’s liberty and property interests before a court may take the drastic

action of removing her ability to make her own legal decisions.”); see also Lindly, 113 S.W. at 752

(appointment of next friend infringes on personal liberties that party cannot be deprived of “unless

it be made to appear that by age, disease, or other cause” party is incapable of taking care of

his interests).

                  In Saldarriaga, consent and capacity were at issue when the trial court appointed a

next friend to represent a wife during a divorce proceeding without a formal adjudication of her

incompetence and approved a settlement agreement executed by the next friend over the wife’s



                                                  14
objections. 121 S.W.3d at 494–95; see also Home Benefit Ass’n v. Robbins, 34 S.W.2d 329, 330

(Tex. Civ. App.—Waco 1930, no writ) (whether next friend may act presents questions of party’s

competence and consent to action). We concluded that, under those circumstances, the trial court

abused its discretion by not referring the motion to the probate court to consider in a timely manner

the need for a guardianship. Saldarriaga, 121 S.W.3d at 500.

                Here, unlike Saldarriaga, it is undisputed that the Individual Plaintiffs lack the

capacity to properly care for their own interests in this litigation. The Individual Plaintiffs have

severe intellectual disabilities and have been involuntarily committed to SSLCs for many years.

Although an order of commitment is not an adjudication of mental incompetence, all that is

necessary to be represented by a next friend is that the party merely be incapable, by reason of mental

or bodily infirmity, of properly caring for his or her own interests in the litigation. Tex. Health

& Safety Code § 593.054 (commitment order not adjudication of mental incompetence); Lindly,

113 S.W. at 752 (standard for appointment of next friend).

                Further, the trial court heard evidence on Courtney’s qualifications and found he was

qualified to adequately represent the interests of the Individual Plaintiffs. Absent evidence to the

contrary, “it is presumed that the action is brought with the permission and such consent” as the

Individual Plaintiffs are “capable of giving and that it is in fact [their] suit.” See Kaplan v. Kaplan,

373 S.W.2d 271, 274 (Tex. Civ. App.—Houston 1963, no writ); see also Lindly, 113 S.W. at 752

(in petitions by next friend, “it is to be presumed, in the absence of anything appearing to the

contrary, that whatever consent to the bringing of the suit such person is capable of giving has been

obtained and that it is in fact his suit”); Home Benefit Ass’n, 34 S.W.2d at 330 (absent contrary



                                                  15
evidence, it is presumed that person non compos mentis has consented to next friend acting for him

in prosecution of suit).

               On this record, we cannot conclude the trial court abused its discretion by overruling

the motion to show authority and permitting Courtney to proceed as next friend. See Urbish,

708 S.W.2d at 431. We overrule the State Defendants’ third issue on appeal.10


Individual Plaintiffs’ Due Course of Law Claims

               Having found the next friend is authorized to proceed in this suit on behalf of the

Individual Plaintiffs, we next consider the State Defendants’ first issue and the crux of their appeal:

whether the Individual Plaintiffs lack standing to prosecute their due course of law claims

because they have not alleged a redressable injury. In this context, “standing” refers to a Texas

Constitution-imposed threshold requirement regarding the stake a plaintiff must possess in a dispute

before a court can exercise subject-matter jurisdiction. Balquinta, 429 S.W.3d at 739. Standing

under the Texas Constitution requires “a concrete injury to a plaintiff and a real controversy between

the parties that will be resolved by the court.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 154

(Tex. 2012). The Texas Supreme Court has equated this requirement with the federal test for Article




       10
             In its second issue, the State Defendants contend DRTx does not have organizational or
associational standing to bring this suit. As DRTx asserts the same claims and seeks the same relief
as the Individual Plaintiffs, we need not address and express no opinion as to DRTx’s standing. See
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (“There are three groups of plaintiffs
in this litigation . . . . Because we find [that one of the groups] has standing, we do not consider the
standing of the other plaintiffs.”); Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 519
(Tex. 1995) (“Because the other plaintiffs . . . bring the same facial challenges and seek the
same declaratory relief . . . we need not address their individual standing and we express no
opinion thereon.”).

                                                  16
III standing: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the requested relief.” Id. (quoting Allen v. Wright,

468 U.S. 737, 751 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377, 1388 (2014)). Given the parallels between that test and our own,

we turn for guidance to the United States Supreme Court’s following explication and refinement of

that test:


        (1)    the plaintiff must have personally suffered an “injury in fact—an invasion of
               a legally protected interest which is (a) concrete and particularized, and (b)
               actual or imminent, not conjectural or hypothetical”;

        (2)    “there must be a causal connection between the injury and the conduct
               complained of—the injury has to be fairly traceable to the challenged action
               of the defendant and not the result of the independent action of some third
               party not before the court”; and

        (3)    “it must be likely, as opposed to merely speculative, that the injury will be
               redressed by a favorable decision.”


Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citations, internal quotation marks, and

brackets omitted); see Heckman, 369 S.W.3d at 154; Balquinta, 429 S.W.3d at 739.

               In their pleadings, the Individual Plaintiffs assert both procedural and substantive due

course of law claims under the Texas Constitution. For both claims, the State Defendants contend

the Individual Plaintiffs have failed to meet the third requirement of standing: redressability.

Redressability is an essential element of standing and requires the Individual Plaintiffs to prove that

it is “likely, as opposed to merely speculative,” that their alleged injury “will be redressed by a

favorable decision.” See Lujan, 504 U.S. at 560. The redressability prong deprives courts of



                                                  17
jurisdiction over cases in which the likelihood of the requested relief redressing the plaintiff’s injury

is only speculative. See id. at 568–70 (holding, in part, that plaintiffs lacked standing when their

injury could only be redressed by terminating funding for foreign projects, and funding agencies

were not parties to suit, and any relief trial court could have provided against existing defendants was

not likely to produce relief needed); Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825,

836–37 (Tex. App.—Austin 2010, no pet.) (holding, in part, that hospital failed to establish standing

when it was merely speculative that the remedy it sought for its alleged loss of sole-provider status

for TRS health plan—invalidation of statutory amendment requiring TRS to include competitor

hospital in network—would induce TRS to remove competitor hospital from network when,

notwithstanding amendment, TRS had discretion in choosing providers). The Individual Plaintiffs,

however, are not required to demonstrate with absolute certainty that the relief requested in their

complaint will eliminate the harms they will allegedly suffer. See Public Empls. for Envtl.

Responsibility v. U.S. Dep’t of the Interior, 832 F.Supp.2d 5, 19 (D.D.C. 2011).


Individual Plaintiffs’ Procedural Due Course of Law Claims

                We begin by addressing the redressability of the Individual Plaintiffs’ procedural due

course of law claims. Though textually different, Texas courts generally construe the due course of

law provision in the same manner as its federal counterpart, the Due Process Clause. See Texas

Workers’ Comp. Comm’n v. Patient Advocates of Tex. , 136 S.W.3d 643, 658 (Tex. 2004).

Procedural due process mandates that any government action depriving a person of life, liberty, or

property be implemented in a fair manner. See Collins v. City of Harker Heights, 503 U.S. 115,

125 (1992).

                                                   18
                Liberally construing the Plaintiffs’ live pleadings, their central contention is that the

State Defendants’ continued confinement of the Individual Plaintiffs is unconstitutional because the

PMRA—the statute providing the State Defendants with the authority to confine the Individual

Plaintiffs   indefinitely     without    periodic       judicial   review   of    their   commitment

orders—unconstitutionally deprives them of their liberty without due course of law protections

afforded by the Texas Constitution. See Tex. Const. art. I, § 19; see also Tex. Health & Safety Code

§ 593.052 (providing no time limit on court’s order for involuntary confinement under PRMA). To

redress the procedural due course of law violations alleged, the Plaintiffs seek declaratory relief and

related claims for injunctive relief.

                To challenge a statute as unconstitutional, a plaintiff “must suffer some actual or

threatened injury under the statute” and “must contend that the statute unconstitutionally restricts

the plaintiff’s own rights.” Barshop v. Medina Cnty. Underground Water Conservation Dist.,

925 S.W.2d 618, 626 (Tex. 1996). As it is undisputed that the Individual Plaintiffs have suffered

an injury from the loss of their liberty under the PMRA, the State Defendants contest only the

redressability of that injury. See Lujan, 504 U.S. at 560–61.

                With regard to the declaratory relief sought, the State Defendants contend that the

requested declaratory relief would not redress the Individual Plaintiffs’ injury because the

declarations would amount to “no more than an advisory opinion” that “would leave [the Individual

Plaintiffs] institutionalized without periodic judicial review of their commitments.” The separation

of powers article of the Texas Constitution prohibits courts from issuing advisory opinions. Tex.

Const. art. II, § 1; see Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (advisory opinion decides



                                                   19
“abstract questions of law without binding the parties”). As such, a party seeking declaratory relief

must show that a requested declaration is not merely an advisory opinion but will resolve a live

controversy between the parties. See Texas Health Care Info. Council v. Seton Health Plan, Inc.,

94 S.W.3d 841, 846 (Tex. App.—Austin 2002, pet. denied).

                It is, however, “well recognized that declaratory relief is the proper remedy

when challenging the constitutionality of a statute.” Rylander v. Caldwell, 23 S.W.3d 132,

136 (Tex. App.—Austin 2000, no pet.); see also Humana Ins. Co. v. Texas Health Ins. Risk

Pool, 257 S.W.3d 402, 409 (Tex. App.—Corpus Christi 2008, no pet.) (“Declaratory relief is the

proper remedy when challenging the constitutionality of a statute.”). Here, unlike an advisory

opinion, the Individual Plaintiffs’ requested declarations do not concern hypothetical claims or

abstract questions of law. See Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 440

(Tex. App.—Austin 2004, pet. denied). Rather, the requested declarations go to the heart of the

controversy between the parties: whether it is unconstitutional to indeterminately commit adults

with intellectual disabilities.11


        11
            The State Defendants suggest that the requested declaratory relief would not redress the
Individual Plaintiffs’ injuries because it is merely speculative that the Legislature would change the
law upon a declaration of the statute’s unconstitutionality. We decline to presume that the
Legislature would ignore a ruling from the court that a statutory scheme infringes upon
constitutionally protected rights. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.
1990) (we presume Legislature is aware of background law and acts with reference to it); see also
Juliff Gardens, L.L.C. v. Texas Comm’n on Envtl. Quality, 131 S.W.3d 271, 278 (Tex. App.—Austin
2004, no pet.) (“[T]he determination of the constitutionality of a statute is unquestionably an issue
fit for judicial review.”). Regardless, it does not follow that the Individual Plaintiffs’ injuries in
this case cannot be redressed by a favorable declaratory judgment. See Steffel v. Thompson,
415 U.S. 452, 469-70 (1974) (“[A] favorable declaratory judgment may nevertheless be valuable to
the plaintiff though it cannot make even an unconstitutional statute disappear.”); see also Tex. Civ.
Prac. & Rem. Code § 37.003 (court has authority to declare rights and status whether or not further

                                                 20
                Further, while we recognize the State Defendants’ contention that they themselves

do not have the authority to provide SSLC residents with judicial review, it is the province of the

judiciary to determine what process is due to sufficiently protect a Constitutional interest. See, e.g.,

In re Harhut, 385 N.W.2d 305, 312–13 (Minn. 1986) (Minnesota Supreme Court announcing due

process procedural safeguards that must be followed in all cases concerning indeterminate

commitment of intellectually disabled adults, including judicial review of patient’s status at least

once every three years); see generally Goldberg v. Kelly, 397 U.S. 254, 263 (1970) (holding

procedural due process requires that pretermination evidentiary hearing be held before assistance

payments to welfare recipient are discontinued and outlining procedures that must be followed at

hearing); Harrell v. State, 286 S.W.3d 315, 319–321 (Tex. 2009) (announcing procedure that must

be followed by State to withdraw money from inmate trust account, after determining that inmate

had constitutionally protected property interest in account); Izen v. Commission for Lawyer

Discipline, 322 S.W.3d 308, 320 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“the remedy

for denial of due process is due process); Lee v. Texas Workers’ Comp. Comm’n, 272 S.W.3d 806,

817 (Tex. App.—Austin 2008, no pet.) (“If a constitutionally protected . . . interest is at stake, we

must then determine what process is due to sufficiently protect that interest.”).




relief is or could be claimed and such judgment has force and effect of final judgment).
Nevertheless, where a statute is found to deprive liberty interests, the implication is the courts may
overturn those applications of the statute declared unconstitutional. See Steffel, 415 U.S. at 469–70
(“If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court
stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality
is affirmed by this Court, the implication is that this Court will overturn particular applications of
the statute.”).

                                                   21
                 In addition, we note that the Consent Decree does not negate the redressability of the

Plaintiffs’ requested declaratory relief. As the U.S. notes in its statement of interest:


        On its face, Plaintiffs’ complaint does not seek to disrupt the Consent Decree . . . but rather,
        to supplement that process with an additional mechanism for discharge of individuals to the
        most integrated setting appropriate to their needs. In this regard, the Consent Decree
        expressly contemplates and reconciles the existence of parallel mechanisms for discharging
        individuals to the community, including court-ordered discharge.


                 As such, whatever the merits of their claims might ultimately prove to be, we

conclude the Individual Plaintiffs have plainly demonstrated the minimum threshold interest that

confers standing under the Texas Constitution. Regardless of whether the trial court additionally

grants the requested injunctive relief, we conclude the declaratory relief sought is sufficient to satisfy

the redressability requirements of standings. Larson v. Valente, 456 U.S. 228, 244 (1982) (“[A]

plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve

a discrete injury to himself. He need not show that a favorable decision will relieve his every

injury.”); Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (request for injunction

to enforce declaratory judgment is “unnecessary” where there is no indication that state agency will

attempt to contravene the trial court’s judgment).


Individual Plaintiffs’ Substantive Due Course of Law Claims

                 Besides their constitutional challenge to the PMRA, the Individual Plaintiffs12

additionally allege that the State Defendants’ failure to provide them with referrals for community




        12
             The Individual Plaintiffs alone assert substantive due course of law claims.

                                                   22
placement and failure to train their staff adequately on the appropriate procedures regarding the

referral of patients who no longer meet commitment criteria violates their right to substantive due

course of law under the Texas Constitution. As a remedy, the Individual Plaintiffs seek declaratory

relief and related claims for injunctive relief.

                Like the federal due process clause, the due course of law provision of the Texas

Constitution contains a substantive as well as a procedural component. Texas Workers’ Comp.

Comm’n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995). “Texas’s due course of law clause and the

federal due process clause are textually different, but we generally construe the due course clause

in the same way as its federal counterpart.” Texas Workers’ Comp. Comm’n, 136 S.W.3d at 658.

A substantive due process violation occurs when the government deprives individuals

of constitutionally protected rights by an arbitrary use of its power.         Byers v. Patterson,

219 S.W.3d 514, 525 (Tex. App.—Tyler 2007, no pet.) (citing Simi Inv. Co. v. Harris Cnty.,

236 F.3d 240, 249 (5th Cir. 2000)). The U.S. Supreme Court has recognized that the liberty interests

of involuntarily committed persons extend beyond the initial deprivation of liberty to retention of

liberty interests in safety, freedom from bodily restraint, and minimally adequate training to ensure

safety and freedom from undue restraint. Youngberg v. Romeo, 457 U.S. 307, 316–19 (1982).

However, such interests are not “absolute”; rather, the liberty interest of the individual must be

balanced against the legitimate interests of the State, including fiscal and administrative burdens.

Id. at 319–20. In balancing the rights of the involuntarily committed and the State’s legitimate

interest, “the Constitution only requires that the courts make certain that professional judgment in




                                                   23
fact was exercised. It is not appropriate for the courts to specify which of several professionally

acceptable choices should have been made.” Id. at 321.13

                On appeal, the State Defendants argue—as they argued with the procedural due

course of law claims—that the Individual Plaintiffs’ substantive due course of law claims are not

redressable by the trial court. With regard to the substantive due course of law claim, however, the

State Defendants argue the claim is not redressable because it “duplicates a claim already brought

and resolved against the same defendants by the U.S. Department of Justice,” and the Consent

Decree resulting from that suit “foreclose[s] an independent remedy by a Travis County district court

for essentially the same alleged deprivation.”

                The State Defendants’ contentions, though, are in direct contradiction to the U.S.

statement of interest stating that the Plaintiffs’ pleadings on their face do not seek to disrupt the

Consent Decree. Moreover, the State Defendants acknowledge the Individual Plaintiffs’ claims are

not barred by res judicata, nor have they cited any federal preemptive principles that would bar the

Individual Plaintiffs from seeking relief for violations of rights guaranteed by the Texas Constitution.

Accordingly, we cannot conclude the State Defendants have shown the Consent Decree deprives the

trial court of jurisdiction over the Individual Plaintiffs’ substantive due course of law claims.




       13
            There is no consensus among federal courts as to the scope of the Youngberg protections
as applied to a committed individual’s right to habilitative care and treatment outside of the
institution. See Evans v. Fenty, 701 F.Supp.2d 126, 152–56 (D.D.C. 2010) (explaining history of
Youngberg and divergent federal interpretations as to scope of protection). As the State Defendants
did not address this issue in their plea to the jurisdiction, we need not address and express no opinion
as to this issue.

                                                  24
                Having concluded the Individual Plaintiffs have standing to bring both their

procedural and substantive due course of law claims, we overrule the State Defendants’ first issue

on appeal.


Declaratory Relief for Alleged PMRA Violations

                In addition to their constitutional due process claims, the Individual Plaintiffs seek

a declaration and related injunctive relief under the UDJA that the State Defendants’ failure to

discharge them through community referrals—despite the determinations of their respective IDTs

that their needs could be met in less restrictive environments—violates various rights guaranteed to

persons with intellectual disabilities under the PMRA, including the requirement to provide services

in the least restrictive environment. See Tex. Civ. Prac. & Rem. Code §§ 37.004 (person whose

rights or status are affected by statute may have determined any question of construction arising

under the statute and obtain a declaration of rights thereunder); .011(further relief based on a

declaratory judgment or decree may be granted whenever necessary or proper); see also Tex. Health

& Safety Code § 592.013 (person with mental retardation has right to live in least restrictive setting

appropriate to person’s individual needs); Carter v. State, 611 S.W.2d 165, 166 (Tex. Civ.

App.—Austin 1981, writ ref’d n.r.e.) (PMRA “unquestionably” gives mentally retarded persons

“general statutory right to a least restrictive environment commensurate with their needs

and abilities.”).

                The PMRA expressly authorizes a person with mental retardation to sue in district

court, through a next friend, “any person” who “intentionally” or “recklessly violates [their] rights

guaranteed by [the Act].” Tex. Health & Safety Code § 591.022(a), (b), (d). With regard to

                                                 25
remedies, the PMRA specifies that a person who violates the rights guaranteed by the PMRA is

liable to the person injured for civil penalties ranging from $100 to $5,000. Id. § 591.022 (a), (b).

In addition, the Act provides that the civil penalties provided under the statute do “not supersede or

abrogate other remedies existing in law.” Id. § 591.022 (f).

               In addition to these private remedies, the PMRA specifies that the attorney general

may sue for additional civil penalties and injunctive relief to: (1) restrain and prevent a person from

violating the Act or a rule adopted by the department under this subtitle; or (2) enforce compliance

with the Act or a rule adopted under the Act. Id. § 591.023. The PMRA again specifies that these

remedies “do not supersede or abrogate other remedies existing at law.” Id.

               Because the PMRA creates privileges and rights not existing at common law and

prescribes a remedy to enforce those rights, the State Defendants contend that these are the exclusive

remedies for a violation of the PMRA and that the Individual Plaintiffs are barred from seeking relief

under the UDJA, a remedy not prescribed by the PMRA for individuals injured by a violation of the

statute. See Texas Dep’t of Pub. Safety v. Dierschke, 952 S.W.2d 634, 636 (Tex. App.—Austin

1997, no pet.) (“Where the cause of action and remedy for its enforcement are derived from statute,

the statutory provisions must be complied with in all respects.”). The Plaintiffs, however, counter

that they may, as an alternative to the remedies prescribed under the PMRA, seek relief under the

UDJA because the PMRA expressly provides that its remedies provisions do “not supercede or

abrogate other remedies existing in law.” Tex. Health & Safety Code §§ 591.022(f), .023(g).

               Whether a statute provides a specific right of enforcement is a question of statutory

construction, hence subject to review as a matter of law. Witkowski v. Brian, Fooshee & Yonge



                                                  26
Props., 181 S.W.3d 824, 830 (Tex. App.—Austin 2005, no pet.). We apply a rule of strict

construction to statutory enforcement schemes and imply causes of action only when the drafters’

intent is clearly expressed from the language as written. Brown v. De La Cruz, 156 S.W.3d 560, 567

(Tex. 2004). A right of enforcement should not be implied simply because the statute “fails to

adequately protect intended beneficiaries.” Id. Construing the plain language of the PMRA, the Act

unquestionably provides persons with intellectual disabilities a private cause of action to enforce

their rights under the statute though civil penalties. See Tex. Health & Safety Code § 591.022.

               At issue, however, is whether the civil penalties prescribed by the statute were

intended to be the exclusive remedy for private enforcement of rights. The general rule is that when

a cause of action and the remedy for its enforcement are derived not from the common law but from

statute, as in this case, the statutory remedy is exclusive. See In reAment, 890 S.W.2d 39, 41 (Tex.

1994). This rule, however, can have no application where the Legislature expressly provides that

a statute’s remedies are non-exclusive. See, e.g., Kish v. Van Note, 692 S.W.2d 463, 467 (Tex. 1985)

(concluding remedies under DTPA are cumulative rather than mutually exclusive of other remedies

where act provided that its remedies provision “are in addition to any other procedures or remedies

provided for in any other law.”); Texas State Hwy. Dep’t v. Edens, 174 S.W.2d 54, 56 (Tex. Civ.

App.—Waco 1943, writ dism’d) (“Where a cause of action and the remedy for its enforcement are

derived not from the common law but from statute, . . . the general rule is that the statutory

provisions . . . are mandatory and exclusive, unless the contrary clearly appears.”); see also City of

Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 641 (Tex. 2013) (“Our goal in interpreting any




                                                 27
statute is to ascertain and give effect to the Legislature’s intent as expressed by the language of the

statute.”); Laidlaw Waste Sys. Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (“It is a rule

of statutory construction that every word of a statute must be presumed to have been used for

a purpose.”).

                The PMRA expressly provides that its remedies provisions do “not supercede or

abrogate other remedies existing in law.” Tex. Health & Safety Code §§ 591.022(f), .023(g).

Construing the plain language of the statute, we thus cannot conclude that the remedies provided

under the PMRA are exclusive, as such an interpretation would be contrary to the express language

of the statute. See id. §§ 591.022(f), .023(g); cf. Tex. Tax Code § 42.09 (statutory remedies

provision titled “ Remedies Exclusive” and stating remedies “authorized by this title are exclusive”);

see also Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012) (“The plain language

of a statute is the surest guide to the Legislature’s intent.”).

                Having concluded that a person injured by a violation of the PMRA may seek

remedies in addition to those provided under the statute, we next consider whether the UDJA

provided another remedy existing in law. The UDJA is a remedial enactment that generally permits

a litigant in a justiciable controversy whose rights are affected by a statute, the right to obtain a

declaration of their rights, status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code

§ 37.004(a); see Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011). The

purpose of a declaratory judgment is “to settle and to afford relief from uncertainty and insecurity

with respect to rights, status, and other legal relations; and it is to be liberally construed and

administered.” Tex. Civ. Prac. & Rem. Code § 37.002(b). “The [UDJA] does not confer jurisdiction



                                                   28
on a trial court, but rather makes declaratory judgment available as a remedy for a cause of action

already within the court’s jurisdiction.” Reynolds v. Reynolds, 86 S.W.3d 272, 275–76 (Tex.

App.—Austin 2002, no pet.); see Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444

(Tex. 1993) (“[W]e have interpreted the Uniform Declaratory Judgments Act . . . to be merely a

procedural device for deciding cases already within a court’s jurisdiction rather than a legislative

enlargement of a court’s power, permitting the rendition of advisory opinions.”); Frasier v. Yanes,

9 S.W.3d 422, 427 (Tex. App.—Austin 1999, no pet.) (“A claimant seeking a declaratory

action must already have a cause of action at common law or under some statutory or

constitutional provision.”).

               Here, we have already determined that the PMRA confers a private cause of action

for those individuals afforded protections by the Act. Thus, a declaratory judgment is a proper

remedy for determining the Individual Plaintiffs’ rights under the PMRA. See Tex. Civ. Prac.

& Rem. Code § 37.004 (person whose rights or status are affected by a statute may have determined

any question of construction arising under statute and obtain a declaration of rights thereunder);

Frasier, 9 S.W.3d at 427 (“Because we have decided that section 52e confers a private cause of

action, a declaratory judgment is a proper action for determining the officers’ rights under this

constitutional provision.”).

               Further, while we acknowledge that the UDJA cannot be invoked when it would

interfere with some other exclusive remedy or some other entity’s exclusive jurisdiction, see MBM

Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009), we have already

concluded that the Legislature did not intend for the statutory remedies under the PMRA to be



                                                29
exclusive. See Tex. Health & Safety Code § 591.022(f); see also Edwards Aquifer Auth. v. Chemical

Lime, Ltd., 291 S.W.3d 392, 405 (Tex. 2009) (where statute provided that its remedies “do not affect

other legal or equitable remedies that may be available,” court permitted relief under UDJA because

there was no “argument why we should not take [Act] at its word”). Moreover, although the PMRA

provides the Individual Plaintiffs with a remedy for monetary relief, the mere existence of another

remedy does not deprive the court of jurisdiction to grant declaratory relief under the UDJA. See

Tex. Civ. Prac. & Rem. Code § 37.003 (court has power to render declaratory judgment “whether

or not further relief is or could be claimed”); MBM Fin. Corp., 292 S.W.3d at 669.

                Accordingly, we conclude the Individual Plaintiffs have alleged a justiciable

controversy as to their rights and status under the PMRA and are entitled, in accordance with the

remedies provisions thereunder, to seek a declaration of their rights under the UDJA. We overrule

the State Defendants’ fourth issue on appeal.14


Exclusive Jurisdiction under the APA

                In their final issue on appeal, the State Defendants contend that, regardless of whether

a party may seek relief under the UDJA for violations of rights guaranteed by the PMRA, the

Individual Plaintiffs have failed to establish jurisdiction under the UDJA because the substance of

their claims is an administrative rule challenge governed exclusively by the APA. It is true that when

a party “files a proceeding that only challenges the validity of an administrative rule, the parties are


       14
           The UDJA does not waive the State’s sovereign immunity when a plaintiff seeks a
declaration of his or her rights under a statute. Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,
621 (Tex. 2011). Such claims must be brought against the appropriate state officials in their official
capacity under the ultra vires exception. Id.

                                                  30
bound by the APA and may not seek relief under the UDJA because such relief would be redundant.”

See Texas State Bd. of Plumbing Exam’rs v. Associated Plumbing-Heating-Cooling Contractors of

Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.—Austin 2000, pet. dism’d by agr.); see also Canyon

Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 286 S.W.3d 397, 407 (Tex. App.—Corpus

Christi 2008, no pet.). The Plaintiffs, however, counter that their pleadings do not identify nor

challenge any administrative rule. Therefore, they contend the APA does not have exclusive

jurisdiction and their suit is properly maintained under the UDJA.

               To better understand the State Defendants’ argument, a review of the statutory

framework of the PMRA is helpful. As previously discussed, the PMRA itself does not provide

review procedures to assess the appropriateness of a resident’s continued commitment, but DADS

has developed internal review procedures to assess whether a resident should remain in an SSLC or

move to an alternate living arrangement. See 40 Tex. Admin. Code §§ 2.274–.276. Under the

internal review procedures, each resident is assigned an IDT that meets at least annually to assess

whether the SSLC is the most appropriate living arrangement for the individual and to provide a

recommendation as to whether the individual should remain in the SSLC or move to an alternative

living arrangement. Id. §§ 2.274(g)(4), 2.275–.276. A determination by an IDT that a resident could

live in a less restrictive environment does not guarantee a resident the right to move from a SSLC,

however, as the resident’s IDT must also provide a recommendation that the individual should move

to an alternative living arrangement and the IDT and SSLC must then perform further procedures

to complete the community referral process. Id. §§ 2.275–.278.




                                                31
               In their pleadings, the Plaintiffs allege that all three of the Individual Plaintiffs have

been determined by their respective IDTs to be capable of living in an alternative living arrangement.

However, according to the Plaintiffs’ pleadings, none of the Individual Plaintiffs have been provided

with a formal recommendation for community referral. Plaintiffs allege that two of the Individual

Plaintiffs—E.M.B. and G.D.E.—have been denied a referral because of the preferences of

non-guardian family members. According to the pleadings, Plaintiff E.M.B. was initially provided

with a community referral, but the referral was later revoked after the superintendent of her SSLC

sent a letter to her IDT requesting they discontinue placement efforts because of the objections of

a family member who was not an appointed guardian or otherwise legally authorized to represent

E.M.B. Similarly, Plaintiff G.D.E. has also allegedly been denied a referral because of the

preferences of a non-guardian family member. The pleadings do not specify why the third Individual

Plaintiff—G.G.E.—has been denied a recommendation for community referral.

               Based on their failure to obtain community referrals, the Individual Plaintiffs seek a

declaration that the State Defendants’ policies and practices of failing to recommend a community

referral for those individuals determined to be appropriate for community-based services is

unconstitutional and violates the PMRA. Because the pleadings raise a challenge to the policies and

practices of an agency, the State Defendants argue that the substance of their claims is an

administrative rule challenge governed exclusively by the APA.15


       15
          The State Defendants also argue the APA is the Plaintiffs’ sole remedy for its procedural
due course of law claims based on the lack of judicial review for involuntarily committed adults.
We disagree. The State Defendants state in their brief that they have “no authority to provide, or
compel courts to provide, post-commitment judicial review” and that “legislation is undisputably
required.” As such, Plaintiffs challenge the constitutionality of the statute governing involuntary

                                                  32
                The APA allows a party to bring a declaratory-judgment action against an agency to

challenge the validity or applicability of an agency rule if it is alleged that the rule or its threatened

application interferes with or impairs a legal right or privilege of the plaintiff. See Tex. Gov’t Code

§ 2001.038. The APA defines a “rule” as a “state agency statement of general applicability” that

“implements, interprets, or prescribes law or policy” or “describes the procedure or practice

requirements of a state agency” but “does not include a statement regarding only the internal

management or organization of a state agency and not affecting private rights or procedures.”

Id. § 2001.003(6).

                The Individual Plaintiffs in their pleadings, however, do not challenge any particular

rule promulgated by the agency. Moreover, the State has not identified any agency statement of

general applicability that implements, interprets, or prescribes a policy of denying adult SSLC

residents community referrals. See Leeper, 893 S.W.2d at 443 (“Not every statement by an

administrative agency is a rule for which the APA prescribes procedures for adoption and for judicial

review. . . .The APA applies only to statements of general applicability that implement, interpret or

prescribe law or policy.”).

                Rather, the Individual Plaintiffs seek a declaration as to whether the State Defendants’

failure to provide them with community referrals violated their individual rights under the PMRA.

Construing the rights guaranteed under the PMRA is central to determining and declaring whether

the State Defendants have violated the Individual Plaintiffs’ rights and properly invokes the

jurisdiction of the UDJA. See Tex. Civ. Prac. Rem. Code § 37.004 (person whose rights are



commitments—the PMRA—and not the validity or applicability of an agency rule.

                                                   33
affected by statute, may have determined any question of construction arising under statute

and obtain declaration of rights thereunder); see also Texas Mun. Power Agency v. Public Util.

Comm’n, 100 S.W.3d 510, 519–20 (Tex. App.—Austin 2003, pet. denied) (“The narrow appellate

procedure provided by the APA to attack a particular Commission order . . . does not displace the

district court’s ability to determine the scope of an agency’s authority through a properly brought

UDJA action.”). Accordingly, we cannot conclude the substance of the Individual Plaintiffs’

complaint challenges only the validity of an administrative rule governed exclusively by the APA.

We overrule the State Defendants’ fifth issue on appeal.


                                           CONCLUSION

                Having concluded that the Plaintiffs’ petition invoked the jurisdiction of the trial

court, we affirm the trial court’s denial of the plea to the jurisdiction.




                                                __________________________________________

                                                        Melissa Goodwin, Justice

Before Justices Puryear, Henson, and Goodwin
   Justice Henson Not Participating

Affirmed

Filed: April 30, 2015




                                                   34
