                                  NO. 12-14-00256-CV

                         IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

TROY W. SIMMONS, D.D.S., P.C.,                  §      APPEAL FROM THE
AND TROY W. SIMMONS, D.D.S.,
APPELLANTS

V.                                              §      COUNTY COURT AT LAW NO. 2

TEXAS HEALTH AND HUMAN
SERVICES COMMISSION,
APPELLEE                                        §      GREGG COUNTY, TEXAS

                                 MEMORANDUM OPINION
        Troy W. Simmons, D.D.S., P.C., and Troy W. Simmons, D.D.S. (collectively Simmons)
appeal the trial court’s order granting Appellee Texas Health and Human Services Commission’s
(THHSC) plea to the jurisdiction. In two issues, Simmons asserts that (1) the trial court erred in
granting THHSC’s plea to the jurisdiction and (2) THHSC failed to exhaust its administrative
remedies. We affirm.


                                         BACKGROUND
        THHSC investigated Simmons for Medicaid fraud and inappropriate billing. During the
investigation, THHSC made a preliminary determination that Simmons had committed these
transgressions and issued a payment hold against him. Simmons filed a request for an appeal, in
which he contested THHSC’s allegations and sought a ―contested case hearing to adjudicate the
pending issues and allegations[.]‖ The matter was assigned to an administrative law judge with
the State Office of Administrative Hearings. Several months later, THHSC issued a final notice
of overpayment. Simmons did not file an additional request for an appeal after THHSC issued
this final notice.
        Simmons believed that the State Office of Administrative Hearings had jurisdiction to
hear matters related both to the payment hold it had against him and the final notice of
overpayment. THHSC disagreed and proposed that Simmons waived any objection to THHSC’s
final notice of overpayment by his failure to file a separate request for appeal. THHSC filed a
motion to dismiss, but the administrative law judge agreed with Simmons and denied the motion.
Thereafter, THHSC maintained its position that the administrative law judge’s ruling applied
only to the payment hold issue because the administrative court did not have jurisdiction over the
final notice of overpayment issue.
        Meanwhile, pursuant to an agency rule, THHSC applied the monies withheld from
Simmons toward the final amount it determined he owed and filed a notice that the payment hold
had been lifted. As a result, the administrative court issued ―no Proposal for Decision‖ in
Simmons’s requested appeal and remanded the matter to THHSC ―to take final administrative
action about its dispute with [Simmons].‖ THHSC took no further action.1
        Subsequently, Simmons filed the instant declaratory judgment suit requesting that the
trial court declare that his ―alleged liability to [THHSC] has been released and extinguished and
that the funds held by THHSC pursuant to a payment hold be released and immediately
forwarded to [him].‖ Simmons also alleged that THHSC violated his equal protection and due
process rights under the United States and Texas constitutions.
        THHSC filed a motion to transfer venue, an answer, and a plea to the jurisdiction.
Following a hearing, the trial court granted THHSC’s plea to the jurisdiction and dismissed
Simmons’s suit. This appeal followed.




                                        PLEA TO THE JURISDICTION
        In his first issue, Simmons contends that the trial court had jurisdiction over the dispute
because THHSC acted ―outside its statutory authority in continuing to withhold payments from
[him] after it dismissed its administrative cause of action.‖




        1
         THHSC’s inaction was consistent with its position that the final notice of overpayment had matured into a
debt Simmons owed the State based on his failure to appeal the final notice.




                                                        2
Sovereign Immunity
       In 1847, the Texas Supreme Court held that ―no State can be sued in her own courts
without her consent, and then only in the manner indicated by that consent.‖             Hosner v.
DeYoung, 1 Tex. 764, 769 (1847). This immunity also applies to ―the various divisions of state
government, including agencies, boards, hospitals, and universities,‖ in which case it is referred
to as sovereign immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3
(Tex. 2003).
       In Texas, sovereign immunity has two components––immunity from suit and immunity
from liability. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594
(Tex. 2001). Immunity from suit is jurisdictional and bars suit; immunity from liability is not
jurisdictional and protects from judgments. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp.,
283 S.W.3d 838, 842 (Tex. 2009). Sovereign immunity from suit deprives a trial court of subject
matter jurisdiction. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Standard of Review
       The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject
matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). An appellate court addressing a challenge to a trial court’s subject matter
jurisdiction reviews the trial court’s ruling de novo. Id. at 228. The reviewing court exercises its
own judgment and redetermines each issue of fact and law. See Schade v. Tex. Workers’ Comp.
Comm’n, 150 S.W.3d 542, 549 (Tex. App.–Austin 2004, pet. denied) (citing Quick v. City of
Austin, 7 S.W.3d 109, 116 (Tex. 1998)). The reviewing court accords the trial court’s decision
no deference. See Schade, 150 S.W.3d at 549 (citing Quick, 7 S.W.3d at 116). When a
conclusion of law is erroneous but the trial court reached the right result, the erroneous
conclusion of law does not require reversal. See BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). Further, if a trial court lacks jurisdiction over some claims but not
others, the trial court should dismiss those claims over which it does not have subject matter
jurisdiction, but retain those claims over which it does. See Thomas v. Long, 207 S.W.3d 334,
339 (Tex. 2006).
       ―When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.‖ Miranda,



                                                 3
133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id. If the pleadings affirmatively negate the existence of jurisdiction, a plea to
the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at
227. If the pleadings do not contain sufficient facts to demonstrate affirmatively the trial court’s
jurisdiction but do not demonstrate affirmatively incurable defects in jurisdiction, the issue is one
of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. See id. at
226–27.
Simmons’s Pleadings
         For the State’s immunity from suit to be waived and for the trial court to have
jurisdiction, a party must show that the State has consented to suit. See Travis Cnty. v. Pelzel &
Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). Consent can be established by statute or
legislative resolution. Id. In very limited situations, consent can be established by conduct. See,
e.g., Reata Constr., 197 S.W.3d at 376–77.
         Sovereign immunity does not bar suits seeking to require state officials to comply with
statutory or constitutional provisions. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372
(Tex. 2009). To properly plead under this ―ultra vires‖2 exception to sovereign immunity,
Simmons was required to allege that a state official acted without legal authority or failed to
perform a purely ministerial act. See id. This exception to sovereign immunity applies only to
the state official, not to the governmental entities. See Tex. Dep’t of Ins. v. Reconveyance
Servs., 306 S.W.3d 256, 258 (Tex. 2010); see also Heinrich, 284 S.W.3d at 372–73
(―Nonetheless, as a technical matter, the governmental entities themselves—as opposed to their
officers in their official capacity—remain immune from suit.‖). Thus, ―suits complaining of
ultra vires action may not be brought against a governmental unit possessed of sovereign
immunity, but must be brought against the allegedly responsible government actor in his official
capacity.‖ Reconveyance Servs., 306 S.W.3d at 258.
         Here, Simmons does not contest that THHSC is a governmental entity.                                But he
nonetheless asserts that the trial court had jurisdiction of his suit against THHSC because ―suits
to compel state officers to act within their official capacity do not attempt to subject the State to



         2
         The Latin phrase ―ultra vires‖ refers to an act performed that is outside the authority granted to the actor.
See BLACK’S LAW DICTIONARY 1522 (6th ed. 1990).


                                                          4
liability.‖3 See Tex. Nat’l Resource Conserv. Comm. v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002). Therefore, because Simmons sued a state agency rather than a state officer, he cannot
satisfy the ultra vires exception to sovereign immunity. See Reconveyance Servs., 306 S.W.3d
at 258.
          Simmons further alleged that the Texas Declaratory Judgment Act (DJA) authorizes his
suit against THHSC. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (West 2015). But
―[t]he DJA does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory
relief does not confer jurisdiction on a court or change a suit’s underlying nature.‖ IT-Davy, 74
S.W.3d at 855.
          Under the facts pleaded by Simmons, THHSC retains sovereign immunity. Thus, the
trial court properly determined that it lacked jurisdiction over Simmons’s suit against THHSC.
See id. Simmons’s first issue is overruled.4


                                                   DISPOSITION
          Having overruled Simmons’s first issue, we affirm the trial court’s judgment.



                                                                        BRIAN HOYLE
                                                                              Justice

Opinion delivered February 27, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



          3
            Simmons made a similar assertion in his response to THHSC’s plea to the jurisdiction, arguing that he
―pled that [THHSC] has acted outside its statutory authority in continuing to withhold payments from [Simmons]
after it dismissed its administrative cause of action.‖
          4
        Because we have overruled Simmons’ first issue, we do not address his second issue concerning whether
THHSC failed to exhaust its administrative remedies. See TEX. R. APP. P. 47.1.


                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         FEBRUARY 27, 2015


                                         NO. 12-14-00256-CV


            TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S.,
                                     Appellants
                                        V.
               TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
                                      Appellee


                            Appeal from the County Court at Law No. 2
                       of Gregg County, Texas (Tr.Ct.No. 2014-933-CCL2)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
       It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the
Appellants, TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S., for
which execution may issue, and that this decision be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
