                           NUMBER 13-11-00750-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JOHN J. BOLL, ET AL.,                                                   Appellants,

                                          v.

CAMERON APPRAISAL DISTRICT,                                                Appellee.


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


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

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

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

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

        By one issue, appellants, John J. Boll and others similarly situated,1 appeal the

trial court’s denial of their motion for attorney’s fees under the Texas Uniform Declaratory

Judgment Act (UDJA).             See generally TEX. CIV. PRAC. & REM. CODE ANN. §§

37.001–.011 (West 2008). We dismiss for lack of jurisdiction.

                                      I.      BACKGROUND2

        Appellants filed a petition for judicial review and for declaratory relief against

appellee Cameron Appraisal District (“the District”) regarding the District’s assessment of

taxes upon exempt mobile homes/park homes allegedly assessed in violation of Texas

Tax Code section 11.14 and challenging the constitutionality of taxing those trailer

homes.      See TEX. TAX CODE ANN. §§ 11.14 (West 2008), 41.41(a)(4) (West 2008); see

also TEX. CONST. art. VIII, § 1(d)(2).       Appellants filed their petition under chapter 42 of

the tax code, see id. § 42.01(a)(1)(A), and the UDJA, see generally TEX. CIV. PRAC. &

REM. CODE ANN. §§ 37.001–.011 (West 2008).

        Pursuant to this Court’s ruling in Rourk v. Cameron Appraisal District, the District

agreed that appellants were entitled to the exemptions under section 11.14.                   See 305


        1
           Named appellants are John J. Boll, Robert and Barbara Byrkit, Roberty D. and Alice Delaney,
Virgil and Donna Dykstra, Duane C. Eich, Kenneth Figg, Loyd D. Graham, Jay and Mary Green, Donald and
Henrietta Hashman, Dale and Marilyn Henderson, Leroy P. Henkemeyer, Robert and Sharon Kirkbride,
Ray LeBrun, Donald and Wilma R. McFarland, Mrs. Roger (Julia) Meade, John and Lucy Morey, Frank and
Janice Niese, Tommy and Linda Quick, Wayne E. and Shirley R. Sapaugh, Clem W. Smith, Dale and Dixie
Spencer, Melvin Vanderhoff, Robert Vanthul, Ronald Vollrath, Leonard D. and Edith J. Walter, Don
Basinger, Donna Brislawn, Henry and Maxine Estell, Marilyn D. Hammond, Hammond Owen Revocable
Trust, C. Dewayne, and Carolyn J. Crawford.
        2
         This opinion is a companion appeal with Thora O. Rourk, et al. v. Cameron Appraisal Dist., Cause
No. 13-11-00751-CV.



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S.W.3d 231 (Tex. App.—Corpus Christi 2009, pet. denied) (Rourk II).                       The trial court

signed a judgment effecting such agreement.                      However, the trial court denied

appellants’ request for attorney’s fees under the UDJA.3 This appeal ensued.

                                    II.      ATTORNEY’S FEES

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

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

ANN. §§. 37.001–.011.

A.      Jurisdiction

        As a preliminary matter, the District, as a political subdivision of the state, see

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

action under the UDJA because appellants’ requested declaratory relief is “redundant” to

the relief provided by the tax code.4

        1. Standard of Review and Applicable Law

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

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

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

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

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

We address questions of immunity de novo.                Id.



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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S.W.3d at 621.

       2. Discussion

       Appellants’ claims under the UDJA in this case deal with the purported

unconstitutional and unlawful taxation of their trailer homes.   See TEX. CONST. art. VIII, §

1(d)(2); TEX. TAX CODE ANN. § 11.14 (West 2008).             Additionally, appellants seek




                                             4
attorney’s fees pursuant to section 37.009 of the UDJA.       See TEX. CIV. PRAC. & REM.

CODE ANN. § 37.009 (West 2008). Although the UDJA waives sovereign immunity,

appellants’ claims do not fall within the scope of these waivers.         See, e.g., id. §

37.006(b) (West 2008) (waiving immunity for claims challenging the validity of

ordinances or statutes); see also Heinrich, 284 S.W.3d at 373 n. 6; Tex. Educ. Agency v.

Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (“The [UDJA] expressly provides that persons

may challenge ordinances or statutes, and that governmental entities must be joined or

notified.”).   Appellants are not challenging the validity of a provision of the tax code;

instead, they are challenging the Appraisal District’s actions under it, and appellants do

not direct us to any portion of the UDJA that expressly waives immunity for these claims.

See Sefzik, 355 S.W.3d at 622.          And appellants did not sue any state officials.

Accordingly, the trial court lacked jurisdiction to hear any of appellants’ claims under the

UDJA, including their claim for attorney’s fees.

        When we hold that a trial court is without subject-matter jurisdiction, we allow a

plaintiff to replead if the defect can be cured.    See Miranda, 133 S.W.3d at 226–27.

Appellants did not sue any state officials. In Sefzik, the Texas Supreme Court gave the

plaintiff an opportunity to cure the jurisdictional defects of his petition because Sefzik

brought his claim pre-Heinrich, when the case law interpreting the ultra vires exception to

the doctrine of sovereign immunity, as well as to who the property party was in a suit for

declaratory remedy, was “less than clear.”         See Sefzik, 355 S.W.3d at 623 (citing

Heinrich, 284 S.W.3d at 373). Here, appellants filed their petition for review and for

declaratory relief on August 13, 2010, which is post-Heinrich. Therefore, the pleadings




                                             5
affirmatively negated the existence of jurisdiction, and appellants will not be given an

opportunity to amend.

                                    III.    CONCLUSION

       We dismiss appellants’ claims and relief sought under the UDJA, including the

collection of attorney’s fees for lack of jurisdiction.




                                                          __________________________
                                                          GINA M. BENAVIDES,
                                                          Justice


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




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