      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00306-CV



                                   Stanley Bacon, Jr., Appellant

                                                   v.

                             Texas Historical Commission, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. D-1-GN-11-002927, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                                            OPINION


                Although the heroism and sacrifice of forebears are never far from the minds of

her citizenry, Texas has nonetheless accorded special emphasis to certain of these persons and

their deeds through the placement of thousands of state government-approved historical markers,

known today as “Official Texas Historical Markers.” While these markers can vary somewhat in

appearance, they uniformly convey to the reader an often-fascinating array of historical facts that

can range from the merely colorful to the inspiring, and in either case provide a good excuse to

pause whatever one is doing long enough to stop and read them. But what if, upon absorbing the

content of one of these Official Texas Historical Markers, a reader is struck by a factual assertion

that, according to his or her own personal knowledge, experience, or expertise, is dubious or just flat-

out wrong?

                This appeal arises from such a disagreement about the accuracy of facts presented in

an Official Texas Historical Marker. However, this Court is called upon not to decide whose version

of history is correct, but the extent to which the Texas judiciary has jurisdiction to intervene in that
debate in the first place. Under the circumstances presented here, at least, we conclude that the

dispute must instead be resolved—if it even can be resolved by any instrumentality of our state

government—within the Legislative or Executive branches.


                                         BACKGROUND

The “Official Texas Historical Marker” program

                Although our 1876 Texas Constitution has specifically empowered the Legislature

to “make appropriations for preserving and perpetuating memorials of the history of Texas,”1 and

there have been other subsequent Texas state-government-sanctioned initiatives to erect memorial

or historical markers,2 the current program of state government-sanctioned “Official Texas Historical

Markers” appears to trace back to the birth of the agency that now oversees them, the agency

known today as the Texas Historical Commission (THC), appellee here. In 1953, the Fifty-Third

Legislature created, by concurrent resolution—and without any accompanying appropriation of

funds—an eighteen-member “Survey Committee” and directed it to conduct a comprehensive study

of “the preservation and dissemination” of historic Texas writings, structures, sites, and articles.3

With this, the Legislature directed the Committee “to act as a coordinating agency and . . . supply

statewide leadership in the encouragement and stimulation of” activities that included “[p]reservation




       1
           Tex. Const. art. 16, § 39.
       2
        E.g., the stone or concrete historical markers that were erected in connection with the
1936 Texas Centennial.
       3
         See Tex. S. Con. Res. 44, 53d Leg., R.S., 1953 Tex. Gen. Laws 1087; see also Tex. S. Con.
Res. 28, 54th Leg., R.S., 1955 Tex. Gen. Laws 1675 (authorizing the Committee to continue its
study).

                                                  2
and designation of historic houses, sites, and landmarks.”4 A few years later, the Fifty-Fifth

Legislature reconstituted the “Texas State Historical Survey Committee” as a full-fledged state

agency, with rule-making power, “for the purpose of providing leadership and coordinating

services in the field of historical preservation.5 The Committee’s specific charges included “giv[ing]

direction and coordination to the state historical marker program,” although the nature of this

program was not defined or further described in the statute.6

                At the agency’s inception, the Legislature emphasized that its delegated “purpose [is]

to give leadership, coordination and service where it is needed and where it is desired,” “not . . . to

duplicate or replace existing historical heritage organizations and activities,” and that it “shall

exercise no authority over any organization, agency, or institution of the state.”7 However, in 1963,

the Legislature made an exception to these limitations by amending the Committee’s enabling statute


       4
           Tex. S. Con. Res. 44, 53d Leg., R.S., 1953 Tex. Gen. Laws 1087.
       5
           Act of May 17, 1957, 55th Leg., R.S., ch. 500, § 1, 1957 Tex. Gen. Laws 1460, 1460–01.
       6
           Id. § 9, 1957 Tex. Gen. Laws at 1462. Similarly, the Legislature directed the new agency
to continue a collaborative effort with the State Building Commission that had begun a few
years earlier. The State Building Commission had been created by a constitutional amendment that
authorized it to, among other things, expend funds on the erection of memorials to Texans who
served in the armed forces of the Republic of Texas or of the Confederacy. See Tex. S.J. Res. 10,
53d Leg., R.S., 1953 Tex. Gen. Laws 1172, 1172–73 (amending Article III of Texas Constitution
by adding section 51-b). The Legislature subsequently authorized the Building Commission “to
negotiate and contract with the Texas Historical Survey Committee, created by the 53rd Legislature,
for the purpose of assisting and advising the [Building] Commission with regard to the proper
memorials and monuments to be erected, repaired, or relocated to new locations, the selection of
sites therefor, and the location and marking of graves.” Act of June 6, 1955, 54th Leg., R.S., ch. 514,
§ 16, 1955 Tex. Gen. Laws 1298, 1301. When later reconstituting the Texas State Historical Survey
Committee as an agency, the Legislature directed it to “continue to assist and advise the State
Building Commission with regard to proper memorials and monuments to be erected, repaired, and
removed to new locations, and selection of sites thereof, and the location and marking of graves.”
See Act of May 17, 1957, 55th Leg., R.S., ch. 500, § 9, 1957 Tex. Gen. Laws at 1462.
       7
           See Act of May 17, 1957, 55th Leg., R.S., ch. 500, § 12, 1957 Tex. Gen. Laws at 1462.

                                                  3
to authorize and direct the agency, “in order to assure a degree of uniformity and quality of historical

markers, monuments, and medallions within the State of Texas,” to “review, pass upon or reject the

final form, dimensions, substance of and inscriptions or illustrations on any historical marker,

monument, or medallion before its erection by any county, incorporated city, or the State Building

Commission, within this state.”8

                   A decade later, the Legislature repealed and reenacted the agency’s enabling statute,

changing the agency’s name to the current “Texas Historical Commission,”9 and not only directed

it to “give direction and coordination to the state historical marker program,” but specifically charged

it with “the responsibility for marking districts, sites, individuals, events, structures, and objects

significant in Texas and American history, architecture, archaeology, and culture, and keep[ing] a

register thereof.”10 And, similar to the prior statute, THC was specifically empowered to “review,

pass upon, or reject the final form, dimensions, text or illustrations on any marker, monument, or

medallion before its fabrication by the state, or any county, county historical survey committee,

incorporated city, individual, or organization within this state.”11 “The markers so approved,” the

act added, “shall be designated by [THC] as Official Texas Historical Markers.”12 Substantively

identical language has remained a component of THC’s enabling statute—now chapter 442 of the

Government Code—to this day. See Tex. Gov’t Code § 442.006(a)–(c).

       8
             Act of May 8, 1963, 58th Leg., R.S., ch. 195, §§ 1–2, 1963 Tex. Gen. Laws 521, 521–22.
       9
        See Act of May 17, 1973, 63d Leg., R.S., ch. 311, § 1, 1973 Tex. Gen. Laws 719; see also
Act of Mar. 29, 1973, 63d Leg., R.S., ch. 38, § 1, 1973 Tex. Gen. Laws 56 (duplicative act that
changed name of Texas State Historical Survey Committee to Texas Historical Commission).
        10
             Act of May 17, 1973, at § 12, 1973 Tex. Gen. Laws at 720.
        11
             Id.
        12
             Id.

                                                     4
The Mount Bonnell historical marker

                In 1969, the agency, still known then as the Texas State Historical Survey Committee,

approved a new historical marker that was placed upon the Austin landmark long known as

Mount Bonnell, where it still stands today near the base of the stairway that leads from the parking

area to the summit. The Mount Bonnell historical marker is titled, simply, “Mount Bonnell,” and,

like many other such markers, consists of a metal plate or tablet in a shield-like shape, with silver

lettering against a black or dark gray background, and has the agency’s seal at the top. In addition

to confirming that Mount Bonnell rises to 775 feet above sea level, the silver letters advise the reader

that, inter alia, the legendary Texas Ranger “Bigfoot” Wallace once killed an “Indian” nearby, that

a Mormon-built mill was once located on the Colorado River shoreline that bounds the mountain’s

western base, and that, in 1898, a Miss Hazel Keyes “slid down a cable” (perhaps an early-day

version of a zip line) that stretched from the summit to the river’s opposite shore.

                Of more direct significance to this appeal, the marker also states that Mount Bonnell

was named for a George W. Bonnell, who, the reader is further informed, “came to Texas with others

to fight for Texas independence, 1836.” The marker adds that this Mr. Bonnell eventually moved

to Austin in 1839 (which many readers might remember as the year in which Texas’s capitol city

came into existence and development of the original fourteen-square-block grid began13), published

a newspaper there in 1840, went on to participate in both the 1841 Santa Fe Expedition and the

1842 Mier Expedition (both ill-fated, as many readers will recall14), and was killed during the latter.


       13
          See, e.g., David C. Humphrey, “AUSTIN, TX. (TRAVIS COUNTY),” Handbook of Texas
Online, http://www.tshaonline.org/handbook/online/articles/hda03, last visited on Aug. 19, 2013.
       14
        See, e.g., T.R. Fehrenbach, Lone Star: A History of Texas and the Texans 477–80 (Wings
Books 1983) (1968); see also H. Bailey Carroll, “TEXAS SANTA FE EXPEDITION,” Handbook
of Texas Online, http://www.tshaonline.org/handbook/online/articles/qyt03 (last visited on

                                                   5
               One might deduce from such factual assertions that the naming of the peak for

George W. Bonnell, as represented in the Mount Bonnell historical marker, might have been a

product of his presence in town during Austin’s infancy, or of some prominence he acquired there

as a newspaper publisher, or perhaps was some sort of recognition or honor for service or sacrifice

for Texas. But as with the marker’s placement near the first of the one-hundred-or-so steps leading

upward to the Mount Bonnell summit’s renowned views, its contents signal only the beginnings of

a debate as to how that peak acquired its name.


The dispute

               Appellant Stanley Bacon is a retired United States Army officer who lives in Austin.

He is a graduate of the United States Military Academy at West Point and serves on the board of

directors of an organization known as the West Point Society of Central Texas, which professes to

represent hundreds of his fellow West Point graduates who now reside in the Austin area. For at

least the past decade, Bacon and other Society members have devoted considerable efforts to

drawing public attention to the life story of a fellow U.S. Army officer and West Point graduate,

Class of 1825, whom they maintain played a critical though often-unsung role in winning Texas’s

independence from Santa Anna’s Mexico. It happens that this U.S. Army officer from long ago had

the surname of Bonnell—Joseph Bonnell.15 And it was this Joseph Bonnell of early Texas—not the




Aug. 19, 2013); Joseph Milton Nance, “MIER EXPEDITION,” Handbook of Texas Online,
http://www.tshaonline.org/handbook/online/articles/gym02 (last accessed on Aug. 19, 2013).
       15
            Among other heroic acts that they attribute to him, Society members assert that
Joseph Bonnell—whom they claim also held officer rank in the Texas army and was a close advisor
and friend to General Sam Houston—single-handedly quelled a brewing uprising of the Caddo tribe
that threatened General Houston’s forces during the pivotal days leading up to the San Jacinto battle.

                                                  6
George W. Bonnell credited on the Official Texas Historical Marker—whom Society members

believe was most likely the true namesake of Mount Bonnell.16

               Compounding this slight to a true Texas military hero, in the eyes of Society

members, is the marker’s accompanying assertion that George W. Bonnell “came to Texas


       16
          While not asserting that this Joseph Bonnell ever visited the Austin area, Society members
maintain (to summarize a much more elaborate historical argument) that Mount Bonnell was
nonetheless probably named for him by, or with the approval of, the Republic of Texas’s Secretary
of War, General Albert Sidney Johnston, or its Adjutant General, Hugh McLeod, sometime in
1839 or early 1840, while the two officials were overseeing the defensive measures necessary to
secure what was then a frontier area while the new capitol city of Austin was being planned and
built. They reason that Johnston or McLeod invariably would have given a name to this prominent
and strategically important peak and would have been prone to so honor Joseph Bonnell because
(1) this Bonnell was a longtime friend and military colleague of both men, and had been recently
transferred out of the Texas region by the U.S. Army; and (2) this Bonnell had built a military service
record that would tend to elicit such recognition. In contrast, while acknowledging that George W.
Bonnell would subsequently acquire some local prominence that might have caused later historians
to assume he was the peak’s namesake, Society members attribute various facts to him that, in their
view, make it unlikely that he was the original source: (1) George did not arrive in Austin until
October 1839, and thus, in their view, would either have been absent or still an undistinguished
newcomer at the time they believe Mount Bonnell was named; (2) as a militia commander, according
to them, George had made a serious tactical blunder that led to the infamous Morgan massacre in
January 1839; and (3) George had published a book in 1840, Topographical Descriptions of Texas,
to Which is Added an Account of the Indian Tribes, in which he observes that “above the city of
Austin is a high peak called Mount Bonnell,” yet conspicuously makes no claim that the peak was
named for him.

        The Society has presented its research and advocacy regarding Joseph Bonnell to the public
through a variety of means, including a website, see West Point Society of Central
Texas, http://www.west-point.org/society/wps-centx/ (last visited Aug. 19, 2013), on which
can be found a more complete presentation of its historical analysis. For authority espousing
a more favorable view of George W. Bonnell and his contributions to Texas history,
see L.W. Kemp, “BONNELL, GEORGE WILLIAM” Handbook of Texas Online,
http://www.tshaonline.org/handbook/online/articles/rjm28 (last visited Aug. 22, 2013); see also
The Texas Republic, A Social and Economic History 271 (Univ. of Tex. ed. 1969) (1946) (noting,
among examples of “respected citizens” of the Republic who “were involved in altercations”
reflected in its court records, that “Jefferson Wright and George W. Bonnell had two fistic
encounters following Bonnell’s insinuations that Wright was a coward and had ‘resigned his
Indian agency from fear,’” and adding that Wright had “dared Bonnell to a 3d contest before
more than 300 people & abused him in the strongest manner.’”) (quoting Letter from James Reily
to Henry Raguet (Nov. 20, 1838)).

                                                  7
with others to fight for Texas independence, 1836.” That statement, they insist, is at odds with

an inconvenient historical truth—George, according to them, did not arrive in Texas until mid-

August 1836, about four months after Texas had already won her independence at San Jacinto.

Consequently, they urge, the marker appears to falsely credit George with fighting in the

Texas Revolution, and that the only way it could be considered even technically or literally true

(albeit still misleading) is if one construes it to mean that George traveled to Texas with the motive

to fight in a revolution that he was somehow unaware had already ended four months earlier. Such

an inference, they suggest, would be both dubious and—in purporting to recount George’s subjective

state of mind over a century earlier—founded on empty speculation.


Proceedings before THC

                Starting not later than 2004, Society members, including Bacon, undertook efforts

to persuade THC to approve a replacement or modification of the 1969 Mount Bonnell historical

marker—at the Society’s expense—to correct what they view as its erroneous attribution of the

peak’s name to George rather than Joseph Bonnell. The precise course of these proceedings before

the agency is somewhat murky, however, because the complete administrative record was

never brought forth from THC to the district court so as to be part of our record on appeal. On the

other hand, Bacon did file, without objection from THC, certain excerpts from the administrative

record as evidence in the district court. Consistent with our standard of review,17 we have based the

following summary of material events at the agency on the facts alleged in Bacon’s live pleadings

and the portions of the administrative record he filed in district court.




       17
            See infra pp. 13–16.

                                                  8
                At the inception of the Society’s effort to have the Mount Bonnell marker changed

or replaced, THC rules authorized “[a]ny individual, group, or county historical commission” to seek

the agency’s approval of a proposed historical marker by making application to the agency.18 On

behalf of the Society, Seldon B. Graham, Jr., a Society member and attorney who would later serve

as Bacon’s trial counsel in this case, prepared an application for a replacement Mount Bonnell

marker that would have credited Joseph Bonnell rather than George Bonnell as the peak’s namesake.

The evidence reflects that this application was transmitted to THC through the Travis County

Historical Commission (TCHC) under cover of a letter from its chair dated October 18, 2004. A

copy of this letter is included in our record, although its enclosures are not. The letter also indicates

that the TCHC chair included another enclosure, a “narrative” prepared by one of TCHC’s members

“contain[ing] new and updated information about George Bonnell.” The letter further advises THC

that TCHC members had considered these written materials, heard oral presentations from Graham

and the TCHC member who had provided the new information about George Bonnell, and ultimately

voted to recommend a change to the Mount Bonnell marker, but not the same one that the Society

had proposed—specifically, “to recommend that the names of both George and Joseph be included

on the Mount Bonnell marker.”

                Roughly a year later, on October 6, 2005, THC’s executive director wrote Graham

advising him of a decision not to change the Mount Bonnell marker. A copy of this letter is in the

record. The letter states that after reviewing “your background information related to Mount Bonnell

in Austin” (not in the appellate record), and after having “also consulted with a number of

colleagues and historical organizations” and “weighing all the information,” the agency staff “have


        18
          13 Tex. Admin. Code § 21.7 (2004) (THC, Application Requirements), amended by
31 Tex. Reg. 9599 (2006), amended by 37 Tex. Reg. 9494 (2012).

                                                   9
decided not to replace our marker.” Bacon alleges, and THC acknowledges, that the agency did not

conduct any sort of formal evidentiary hearing prior to this determination. The letter concludes by

thanking Graham for his “enthusiasm for the life of Joseph Bonnell” and assuring him that “should

we uncover any conclusive evidence in the future that the Austin landmark was named for him, we

will certainly let you know.”

                  The next administrative activity regarding the Mount Bonnell marker that is reflected

in Bacon’s pleadings or evidence occurred in August 2011. On August 22, 2011, Bacon submitted

to THC a 25-page research paper prepared by another Society member, Frederick C. Bothwell, III,

and titled, Reconsidering the Historical Marker on Mount Bonnell. This paper is included in the

appellate record, along with affidavits from Bacon and Bothwell attesting to various facts

relating to the paper’s creation and use.19 Bacon further pleads that Bothwell’s Reconsidering the

Historical Marker on Mount Bonnell contained “substantial new evidence” beyond the application

and materials that Society members had previously submitted to the agency (and that are not

in the record).

                  On the same date that Bacon alleges and avers that he filed Reconsidering the

Historical Marker on Mount Bonnell with THC, a letter to Bacon issued from THC’s executive

director, on behalf of THC’s chairman, advising Bacon of the agency’s “final decision” declining

to replace the Mount Bonnell historical marker. It elaborated:


       Although the evidence [submitted by Bacon and other Society members] is
       persuasive, we believe that it is at least equally possible that the mountain was named
       for George Bonnell, a local resident who had some standing in the community at
       that time.


       19
        E.g., Bothwell avers that his paper was an expanded version of a 2009 article written by
Graham and that Bothwell had additionally prepared two documentary videos on the subject.

                                                   10
The letter further elaborated that the TCHC, in what would have been a departure from its

2004 position, “continue to maintain that they want to keep the current marker in place.” This

was potentially significant because, during the intervening years, THC had amended its rules

governing historical marker applications to impose new limitations that included requiring applicants

to first obtain approval from the local county historical commission before proceeding to THC.20

Accordingly, THC maintained that since the TCHC had not “request[ed] changes to the marker, or

the placement of an additional marker,” but instead “is satisfied,” “this matter is concluded.” THC

added that “[t]here are more than 15,000 markers across Texas, and while we appreciate your

enthusiasm for this single marker, our agency cannot dedicate more staff or commission time to

this issue.” Bacon alleges, and THC acknowledges, that the agency did not afford him a formal

evidentiary hearing prior to this “final decision” (which, again, was issued on the same day that he

had submitted Reconsidering the Historical Marker on Mount Bonnell).

               On appeal, THC presents what purport to be copies of agendas and minutes from

several years’ worth of meetings of its commissioners and of a “History Committee” and urges that

these documents are proof of intervening agency proceedings in which Society members advocated

their position regarding the Mount Bonnell marker. Even if we were to consider these documents

from outside the record,21 they would, without more, be competent evidence only that the


       20
         See 34 Tex. Reg. 1514, 1515 (2009), adopted by 34 Tex. Reg. 2949 (2009) (codified at
13 Tex. Admin. Code § 21.7 (THC, Application Requirements), amended by 37 Tex. Reg. 9494,
9495 (2012) (proposed Aug. 31, 2012).
       21
          See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979)
(noting that courts of appeals may not consider evidence outside the record); Carlisle v. Philip
Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied) (“It is elementary that,
with limited exceptions not material here, an appellate court may not consider matters outside
the appellate record.” (citing Sabine, 595 S.W.2d at 841)); but see Rusk State Hosp. v. Black,
392 S.W.3d 88, 94 (Tex. 2012) (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d

                                                 11
“Mount Bonnell Official Texas Historical Marker” was posted as a topic of discussion at a single

meeting of the THC’s History Committee on July 28, 2011, not necessarily that this had anything to

do with Society members or their efforts to get the marker changed. In either event, these documents

presented by THC on appeal are not material to our analysis.


Proceedings in the district court

               On September 20, 2011, Bacon sued THC in the district court. His principal claim

for relief was based on section 2001.171 of the Administrative Procedure Act (APA),22 which

waives sovereign immunity to the extent of permitting a party who has exhausted its administrative

remedies and who is “aggrieved by a final decision in a contested case” to seek judicial review of

that decision in the manner that the APA provides. See Tex. Gov’t Code § 2001.171; Texas Dep’t

of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004)

(holding that APA section 2001.171 “provides a limited waiver of sovereign immunity”). Based on

the premise that the proceedings before THC had been a “contested case” within the meaning of the

APA, Bacon sought reversal and remand of the agency final decision based on multiple asserted

grounds under APA section 2001.176, including that the decision was not reasonably supported by

substantial evidence, that it was arbitrary and capricious, and that THC had not followed the trial-

like procedures applicable to “contested cases.” See Tex. Gov’t Code § 2001.174 (“Review Under

Substantial Evidence Rule”). In addition to his APA judicial-review claim, Bacon pled that THC

had violated his due-process rights under the U.S. Constitution and “curtailed [his] liberty of speech”


440, 445 (Tex. 1993) for proposition that jurisdictional issues, including sovereign immunity, may
be raised for the first time on appeal).
       22
         The APA is codified in chapter 2001 of the Government Code. See Tex. Gov’t Code
§§ 2001.001–.902.

                                                  12
under the Texas Constitution. See U.S. Const. amend. V (due process); Tex. Const. art. I, § 8

(freedom of speech).

               THC interposed a plea to the jurisdiction, arguing that Bacon’s claims were barred

by sovereign immunity and that he had no standing to assert them. As previously noted, Bacon filed,

without objection from THC, certain excerpts from the administrative proceedings and other

evidence of those events. Following a hearing at which no further evidence was presented, the

district court granted THC’s plea and rendered judgment dismissing the case for want of subject-

matter jurisdiction.

               Bacon appeals that judgment.


                                            ANALYSIS

               Bacon brings four issues on appeal, contending that the district court erred in

concluding that it lacked subject-matter jurisdiction because, he urges, sovereign immunity did not

bar his claims and he has standing to assert them. Alternatively, Bacon insists that the district court

erred in dismissing the case without affording him an opportunity to replead.


Standard of review

               A plea to the jurisdiction challenges 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, 225–26 (Tex. 2004). Whether this authority exists turns in the first instance on the content

of the claimant’s live pleadings. Id. at 226. The plaintiff has the initial burden of alleging facts

that would affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Id. (citing

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Mere unsupported

legal conclusions do not suffice. See Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on

                                                  13
Envtl. Quality, 307 S.W.3d 505, 515–16 & nn. 7 & 8 (Tex. App.—Austin 2010, no pet.). We

construe the pleadings liberally, taking them as true, and look to the pleader’s intent. Miranda,

133 S.W.3d at 226. If the pleadings fail to allege sufficient facts to affirmatively demonstrate the

trial court’s jurisdiction but also fail to affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity

to amend. Id. at 226–27. If, on the other hand, the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend. Id. at 227.

                We may also consider evidence that the parties have submitted and must do so

when necessary to resolve the jurisdictional issues. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

555 (Tex. 2000). In fact, in a plea to the jurisdiction, a party may present evidence to negate the

existence of a jurisdictional fact alleged in the pleadings, which we would otherwise presume to be

true. Miranda, 133 S.W.3d at 227; Hendee v. Dewhurst, 228 S.W.3d 354, 367 (Tex. App.—Austin

2007, pet. denied). How we review a trial court’s explicit or implicit determination of such a

challenge depends on whether the jurisdictional fact being challenged overlaps with the merits of

the plaintiff’s claims. If the challenged jurisdictional fact overlaps with the merits of the plaintiff’s

claims, the party asserting the plea to the jurisdiction must overcome a traditional-summary-

judgment-like burden and conclusively negate that fact. See Miranda, 133 S.W.3d at 228; Hendee,

228 S.W.3d at 367. But if the challenged jurisdictional fact does not overlap the merits, the fact

issue may be resolved by the trial court when resolving the jurisdictional issue, and its explicit or

implicit fact finding (or failure-to-find) may be challenged in the same manner as fact findings

generally. Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 719 (Tex. App.—Austin 2009,

no pet.).

                                                   14
               Our ultimate inquiry is whether the particular facts presented, as determined by the

foregoing review of the pleadings and any evidence, affirmatively demonstrate a claim within

the trial court’s subject-matter jurisdiction. See Miranda, 133 S.W.3d at 226; Creedmoor–Maha,

307 S.W.3d at 513, 516 & n.8. That is a question of law that we review de novo. See Miranda,

133 S.W.3d at 226.

               Resolution of this ultimate question frequently entails construction of statutes,

which in itself presents a question of law. See Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d

171, 177 (Tex. 2012). When construing a statute, our primary objective is to ascertain and give

effect to the Legislature’s intent. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439

(Tex. 2011). To discern that intent, we begin with the statute’s words. Id. “Where text is clear,

text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437

(Tex. 2009) (op. on reh’g). The words cannot be examined in isolation, but must be informed by

the context in which they are used. TGS-NOPEC, 340 S.W.3d at 441. We rely on the plain meaning

of the words, unless a different meaning is supplied by legislative definition or is apparent from

context, or unless such a construction leads to “absurd results.” See City of Rockwall v. Hughes,

246 S.W.3d 621, 625–26 (Tex. 2008); see also Tex. Gov’t Code § 311.011 (“Words and phrases

shall be read in context and construed according to the rules of grammar and common usage,” but

“[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative

definition or otherwise, shall be construed accordingly.”). We further presume that the Legislature

chooses a statute’s language with care, including each word chosen for a purpose, while purposefully

omitting words not chosen. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). We likewise attempt to

give effect to all of a statute’s words and avoid treating any language as surplusage if reasonable

and possible. See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010); see also

                                                15
Tex. Gov’t Code § 311.021(2) (presumption that entire statute is intended to be effective); Texas

Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010) (“Courts ‘do not

lightly presume that the Legislature may have done a useless act.’” (quoting Liberty Mut. Ins. Co.

v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex. 1998))). Our analysis of the statutory text

may also be informed by such matters as “the object sought to be attained,” “circumstances under

which the statute was enacted,” legislative history, and “common law or former statutory provisions,

including laws on the same or similar subjects,” and the title of the provision. See Tex. Gov’t Code

§ 311.023(1)–(4), (7). Similarly, we assume that when enacting a statute, the Legislature was

aware of the background law and acted with reference to it. See In re Allen, 366 S.W.3d 696, 706

(Tex. 2012) (quoting Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)). However,

only when the statutory text is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’”

Entergy, 282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)).


Jurisdictional limitations on suits challenging governmental action

               As THC emphasizes, Bacon’s claims against THC could have invoked the

district court’s subject-matter jurisdiction only if he somehow overcame or avoided two fundamental

limitations on the subject-matter jurisdiction of Texas state courts to entertain suits challenging

governmental action: (1) sovereign immunity; and (2) constitutional standing requirements.


       Sovereign immunity

               Absent Legislative waiver, sovereign immunity deprives Texas courts of subject-

matter jurisdiction over any suit against the State or its agencies or subdivisions. See, e.g., Texas

Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620–21 (Tex. 2011) (per curiam). That same immunity

generally extends to Texas state officials who are sued in their official capacities because that “is

                                                 16
merely ‘another way of pleading an action against the entity of which [the official] is an agent.’”

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009) (quoting Texas A&M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham, 473 U.S. 159,

165 (1985))). Simply described, sovereign immunity generally shields our state government’s

“improvident acts”—however improvident, harsh, unjust, or infuriatingly boneheaded these acts may

seem—against the litigation and judicial remedies that would be available if the same acts were

committed by private persons. See Tooke v. City of Mexia, 197 S.W.3d 325, 331–32 (Tex. 2006).

                Perhaps somewhat ironically here, the doctrine of sovereign immunity has its

roots in the English common-law notion that no wrong could be done by royalty from whom the

American military long ago liberated our People. See id. at 331 (noting that sovereign immunity

has evolved over the centuries from the fiction that “the king can do no wrong” (citing

William Blackstone, 3 Commentaries on the Laws of England 254 (1768)). Nonetheless, it was not

long after the Texas Revolution that the Texas Supreme Court recognized the doctrine of sovereign

immunity to be part of Texas’s common law,23 and the high court has continued to adhere to the

doctrine to this day. However, its contemporary rationale derives not from the prerogative of royalty

but from the tripartite form our democratic self-government has taken—namely, a view that the

Legislature, not the Judiciary, is best suited to make the policy-laden judgments as to if and

how state government resources should be expended. See, e.g., Sefzik, 355 S.W.3d at 621 (citing

Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002)); Tooke,

197 S.W.3d at 331–32.24 This principle of judicial deference embodied in sovereign immunity


       23
            See Hosner v. DeYoung, 1 Tex. 764, 769 (1847).
       24
           See also Tex. Const. art. II, § 1 (“The powers of the Government of the State of Texas
shall be divided into three distinct departments, each of which shall be confided to a separate body

                                                 17
extends not only to the Legislature’s choices as to whether state funds should be spent on litigation

and court judgments versus other priorities, but equally to the policy judgments embodied in the

constitutional or statutory delegations that define the parameters of an officer’s discretionary

authority and the decisions the officer makes within the scope of that authority. See, e.g., Sefzik,

355 S.W.3d at 621 (citing W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 839 (Tex. 1958)); Heinrich,

284 S.W.3d at 372; Director of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d

264, 265 (Tex. 1980).

                Consequently, sovereign immunity compels Texas courts to defer to the Legislature

as the gatekeeper controlling when and how citizens can sue their state government or its officers

for their official acts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003)

(noting that “the Legislature is better suited to balance the conflicting policy issues associated with

waiving immunity”) (citing, among other cases, IT-Davy, 74 S.W.3d at 854). The Legislature may

consent to suits against the State by statute or resolution. IT-Davy, 74 S.W.3d at 853–54 (citing

General Servs. Comm’n v. Little-Tex. Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001)). “Legislative

consent to sue the State must be expressed in ‘clear and unambiguous language.’” Id. at 854

(quoting Tex. Gov’t Code § 311.034; University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177

(Tex. 1994)).

                However, under what is termed the “ultra-vires exception” to sovereign immunity,

such immunity is not considered to be implicated by a suit against a state officer in his official

capacity (thereby binding the State through its agent) for prospective injunctive or declaratory


of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and
those which are Judicial to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others, except in the
instances herein expressly permitted.”).

                                                  18
relief to compel compliance with statutory or constitutional provisions. See Heinrich, 284 S.W.3d

at 372–80. Sovereign immunity is held not to bar such claims because, in concept, acts of state

officials that are not lawfully authorized are not considered to be acts of the State, and the remedy

of compelling such officials to comply with the law, while binding on the State, “do[es] not attempt

to exert control over the state [but] attempt[s] to reassert the control of the state.” Id. at 372. “Stated

another way, these suits do not seek to alter government policy but rather to enforce existing policy.”

Id. But to come within the ultra-vires exception, the plaintiff “must not complain of a government

officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer

acted without legal authority or failed to perform a purely ministerial act.” Id. Otherwise, the suit

implicates sovereign immunity because it seeks to “control state action,” to dictate the manner in

which officers exercise their delegated authority. See id.; Creedmoor–Maha, 307 S.W.3d at 515–16.

                One implication of these principles is that there is no general right to challenge or

seek review of a state agency order or decision in Texas state court; to the contrary, state agency

decisions generally cannot be challenged in court unless the Legislature has enacted a statute

expressly authorizing such review. See Mega Child Care, Inc., 145 S.W.3d at 198; Creedmoor-

Maha, 307 S.W.3d at 514.25 However, sovereign immunity does not bar a suit to challenge or

restrain an agency order or action that is beyond the agency’s statutory or constitutional authority.

See Creedmoor-Maha, 307 S.W.3d at 514–15 (citing Texas Highway Comm’n v. Texas Ass’n of

Steel Imps., 372 S.W.2d 525, 530 (Tex. 1963)); see also Chemical Bank & Trust Co. v. Falkner,

369 S.W.2d 427, 433 (Tex. 1963) (“When a vested property right . . . has been affected by the action



        25
           Even then, there are constitutional constraints on the scope of that review. See Gerst
v. Nixon, 411 S.W.2d 350, 353–54 (Tex. 1966); Southern Canal Co. v. State Bd. of Water Eng’rs,
318 S.W.2d 619, 622–24 (Tex. 1958).

                                                    19
of an administrative agency, thereby invoking the protection of due process of law, there is an

inherent right of appeal.”) (citing Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n,

342 S.W.2d 747, 750 (Tex. 1961); City of Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex. 1951)).


        Standing

                Even if sovereign immunity has been waived or would otherwise not be a bar to

a suit to challenge governmental action, additional limitations on the subject-matter jurisdiction

of courts are imposed by the Texas Constitution. These include the constitutional requirement of

standing, which imposes certain threshold standards regarding the stake a plaintiff must possess in

a dispute before a court can exercise subject-matter jurisdiction to resolve it. See Texas Ass’n of

Bus., 852 S.W.2d at 443–45. The general test for constitutional standing in Texas courts is whether

there is a “real” (i.e., justiciable) controversy between the parties that will actually be determined by

the judicial declaration sought. See id. at 446. Constitutional standing is thus concerned not only

with whether a justiciable controversy exists, but whether the particular plaintiff has a sufficient

personal stake in the controversy to assure the presence of an actual controversy that the judicial

declaration sought would resolve. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442

(Tex. 1998); Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).

The requirement thereby serves to safeguard the separation of powers by ensuring that the judiciary

does not encroach upon the executive branch by rendering advisory opinions, decisions on abstract

questions of law that do not bind the parties. See Texas Ass’n of Bus., 852 S.W.2d at 444.

                Further, with regard to complaints about governmental action in particular, standing

doctrines serve to prevent judicial incursions into abstract or generalized public policy disputes that

are properly resolved in the other branches. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,


                                                   20
576–78 (1992) (discussing role of standing requirements in preventing judicial incursions into

legislative and executive spheres); Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“[W]e may look

to the similar federal standing requirements for guidance.”). They also “reflect in many ways the

rule that neither citizens nor taxpayers can appear in court simply to insist that the government

and its officials adhere to the requirements of law.” Andrade v. Venable, 372 S.W.3d 134,

136–37 (Tex. 2012) (quoting Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011) (quoting

Charles Alan Wright et. al., Federal Practice and Procedure § 3531.10 (3d ed. 2008))). “Generally,

‘a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts.’” Id.

at 136 (quoting NAACP, 345 S.W.3d at 6). “This is because ‘[g]overnments cannot operate if

every citizen who concludes that a public official has abused his discretion is granted the right

to come into court and bring such official’s public acts under judicial review.’” Id. (quoting Bland,

34 S.W.3d at 555).

                “Unless standing is conferred by statute, a plaintiff must show that he has suffered

a particularized injury distinct from the general public.” Id. (citing Bland, 34 S.W.3d at 555–56);

see Brown, 53 S.W.3d at 302 (“Our decisions have always required a plaintiff to allege some

injury distinct from that sustained by the public at large.”); Tri County Citizens Rights Org.

v. Johnson, 498 S.W.2d 227, 228–29 (Tex. Civ. App.—Austin 1973, writ ref’d n.r.e.) (“It is an

established rule . . . that ‘. . . sufficiency of a plaintiff’s interest (to maintain a lawsuit) comes into

question when he intervenes in public affairs. When the plaintiff, as a private citizen, asserts a

public, as distinguished from a private, right, and his complaint fails to show that the matters in

dispute affect him differently from other citizens, he does not establish a justiciable interest.’”)

(quoting 1 Roy W. McDonald, Texas Civil Practice § 3.03, at 229 (rev. vol. 1965)). That is, “a

plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized,

                                                    21
actual or imminent, not hypothetical.” DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05

(Tex. 2008). More specifically, the “irreducible constitutional minimum” of standing consists of

three elements:


       (1)     “the plaintiff must have suffered an ‘injury in fact’—an invasion of a ‘legally
               protected’ [or cognizable] 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 must be “fairly traceable” to the challenged
               action of the defendant and not the independent action of a third party not
               before the court; and

       (3)     it must be likely, and not merely speculative, that the injury will be redressed
               by a favorable decision.


Lujan, 504 U.S. at 560–61; see Brown, 53 S.W.3d at 305; Save Our Springs Alliance, Inc. v. City

of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, pet. denied).


Jurisdiction over Bacon’s claims

               With these limitations in mind, we now turn to Bacon’s specific arguments as to

why or how he invoked the district court’s subject-matter jurisdiction nonetheless. In his first issue,

Bacon argues that he invoked the district court’s jurisdiction by asserting claims under a “private

attorney general” provision of THC’s enabling statute, section 442.012(a) of the Government Code.

In his second issue, Bacon urges that he asserted claims within the ultra-vires exception to sovereign

immunity by alleging conduct by THC that exceeded its authority. In his third issue, somewhat

related to his second, Bacon maintains that THC violated his rights and exceeded its authority in

various ways through the procedures it followed in denying his request or requests to change




                                                  22
the Mount Bonnell historical marker. In his fourth and final issue, Bacon insists that he invoked the

district court’s jurisdiction through his constitutional claims.

               Before further exploring each of Bacon’s contentions, we should make three

threshold observations suggested by THC. First, Bacon—who is aided by new additional counsel

on appeal—purports to have asserted several claims that he did not actually plead in his live petition

before the district court. Bacon’s live petition, as noted, asserted only an APA section 2001.171

judicial-review claim and his constitutional claims. Nonetheless, we will proceed to consider all of

Bacon’s current jurisdictional theories inasmuch as they would be relevant to, at a minimum,

whether his claims would be susceptible to being repleaded in a manner that invoked the

district court’s jurisdiction. See Miranda, 133 S.W.3d at 226–27; see also Sefzik, 355 S.W.3d at 623

(noting that when upholding plea to jurisdiction on sovereign immunity grounds, court must allow

plaintiff opportunity to replead if the defect can be cured); Koseoglu, 233 S.W.3d at 840 (same).

               Second, we observe that Bacon purports to have asserted claims solely against THC.

Sovereign immunity would categorically bar those claims unless and only to the extent that the

Legislature has waived THC’s sovereign immunity against them. See Sefzik, 355 S.W.3d at 620–21.

Likewise, so long as Bacon sues only THC, he has not and cannot invoke the district court’s

jurisdiction through the ultra-vires exception to sovereign immunity, which requires that he instead

name an agency officer, in his or her official capacity, as the defendant. See id. at 621–22; Heinrich,

284 S.W.3d at 372–73. This is true not only of Bacon’s current or potential claims predicated on

THC actions that allegedly exceed its statutory authority, but also Bacon’s constitutional claims,

which are merely a species of ultra-vires claims. See Heinrich, 284 S.W.3d at 371–72; Creedmoor-

Maha, 307 S.W.3d at 514–15. However, to the extent that any such jurisdictional defect in an ultra-

vires claim is considered to be curable by repleading, see Sefzik, 355 S.W.3d at 623, we will proceed

                                                  23
to address whether Bacon has otherwise invoked (or could invoke) the district court’s jurisdiction

over these claims.

               Our third and final threshold observation is that Bacon cannot claim any legally

protected interest in the content of the Mount Bonnell historical marker, per se, that would be

considered distinct from that of the general public. THC approves Official Texas Historical Markers

on behalf of all the people of Texas, who share a common stake in the accuracy and professionalism

with which the agency (or any agency) performs its delegated duties on their behalf, and even a

complaint that THC was somehow acting illegally or abusing its discretion in regard to the

Mount Bonnell marker would not, in itself, confer standing upon Bacon to challenge the agency’s

actions in court. See Venable, 372 S.W.3d at 136–37. Nor can Bacon make any claim of a property

right in the marker itself. Likewise, the content of the marker does not refer to Bacon, but to

third parties and events occurring almost two centuries ago. And while Bacon, like other Society

members, emphasizes a deep commitment and sense of duty to defend what he views as the

recognition and honor properly owed to a fellow soldier, West Point graduate, and military hero,

such subjective interests or concerns, however admirable, are not in themselves considered to rise

to the level of a justiciable interest that can support standing in court. See Save Our Springs, 304

S.W.3d at 894 (holding that members of advocacy group who claimed “environmental,” “scientific,”

and “recreational” interests in preventing alleged pollution of a public spring-feed pool, without

more, had not established interest distinct from that of general public); see also Lujan, 504 U.S. at

575–77. To the contrary, they merely signal an impetus for the democratic political participation in

which Society members, like other members of the public, are free to engage through the Legislative

and Executive branches. See Lujan, 504 U.S. at 576 (“Vindicating the public interest (including the



                                                 24
public interest in Government observance of the Constitution and laws) is the function of Congress

and the Chief Executive.”).

                Within his four issues, however, Bacon insists that he has asserted (or could assert)

four sets of claims that are not barred by sovereign immunity and in which he has an interest going

beyond his subjective concerns with the content of the Mount Bonnell historical marker.


        Section 442.012(a)

                In his first issue, Bacon argues that he asserted (or could assert) a claim under

Government Code section 442.012(a), a “private attorney general” provision of THC’s enabling

statute that permits “any resident of this state [to] file suit in district court to restrain and enjoin a

violation or threatened violation of this chapter . . . , to recover on behalf of the state a civil penalty

provided by this chapter, . . . or for both injunctive relief and a civil penalty.” See Tex. Gov’t Code

§ 442.012(a).26 Bacon reasons that section 442.012(a) confers standing on him to sue as a “resident

of this state” to “restrain and enjoin” violations of chapter 442, and that he has alleged conduct by

THC that would constitute violations. However, even if section 442.012(a) otherwise authorized

Bacon to bring his suit, it would not, as THC emphasizes, waive the sovereign immunity that shields

the agency against this or any other claim Bacon brings against it.

                In order for a statute to be construed by the courts as allowing a claim against

the government, it must clearly and unambiguously waive sovereign immunity. See id. § 311.034

(Code Construction Act provision regarding waiver of sovereign immunity); IT-Davy, 74 S.W.3d

at 854 (quoting Tex. Gov’t Code § 311.034, citing York, 871 S.W.2d at 177). It is established that


        26
          Venue of such a suit is in Travis County or “the county in which the activity sought to be
restrained or penalized is alleged to have occurred, be occurring, or be about to occur.” Tex. Gov’t
Code § 442.012(b). As indicated above, Bacon filed his suit in Travis County district court.

                                                    25
a statute that merely permits the state to “sue or be sued” or to “plead or [be] impleaded” is not

sufficient to waive sovereign or governmental immunity. See Tooke, 197 S.W.3d at 342 (concluding

that phrase “sue and be sued,” standing alone, is ambiguous as to waiver of immunity and, therefore,

did not suffice to waive it). The cause of action authorized by section 442.012 is of the same nature:

it allows a resident to file suit to restrain or enjoin a violation of chapter 442, but mentions nothing

about immunity or governmental defendants. See Tex. Gov’t Code § 442.012(a). As such, it is not a

clear and unambiguous waiver of sovereign immunity. See Tooke, 197 S.W.3d at 342. Accordingly,

we overrule Bacon’s first issue on appeal.


        Applicant status

                Bacon’s second and third issues are premised on an assertion that he acquired

standing to assert several of his claims (or potential claims) by virtue of his status as an applicant

for THC approval of a new Mount Bonnell historical marker.27 In his second issue, Bacon urges that

his rights or interests as an applicant were violated by THC’s rejection of his application and by

its reliance on substantive disagreements with Bacon’s historical views in doing so. These actions

exceeded THC’s statutory authority regarding Official Texas Historical Markers, Bacon insists,

because the Legislature confined the agency’s authority chiefly to non-substantive editorial control

over the final wording and shape of markers that have been substantively approved by local county

historical commissions (which he insists occurred here, at least initially), and that it had no power


       27
           Because the distinction is ultimately immaterial to our analysis, we will assume without
deciding that, as the parties seem to presume, Bacon would be considered an applicant not only with
respect to the 2011 filing he submitted under his name, but also to the 2004 application that was
submitted on the Society’s behalf. We will similarly assume that, as Bacon insists, his 2011 filing
was in the nature of a motion for rehearing of THC’s actions in 2005 rather than a separate
application. Consequently, we need not reach several procedural and waiver arguments that THC
advances in reliance on a contrary view. See Tex. R. App. P. 47.1.

                                                  26
to reject such an application outright. Based on this premise, Bacon further argues that his claims

(or potential claims) invoke the district court’s subject-matter jurisdiction via the ultra-vires

exception to sovereign immunity.

               Relatedly, Bacon urges that THC exceeded its authority by requiring him to

present “conclusive evidence” that Mount Bonnell was named for Joseph Bonnell in order to

obtain THC approval of a replacement marker. This assertion is based on his interpretation of the

October 2005 letter from THC’s executive director advising that the agency staff had declined to

approve a replacement marker and that “should we uncover any conclusive evidence in the

future that the Austin landmark was named for him, we will certainly let you know.” Further, in

his third issue, Bacon argues that this purported “conclusive evidence” standard amounted to

a “rule” under the APA. He emphasizes that the Legislature explicitly made THC “subject to . . .

the administrative procedures act,” see Tex. Gov’t Code § 442.002(j), which would include

compliance with the APA’s notice-and-comment rulemaking requirements, see Tex. Gov’t Code

§§ 2001.021–.041 (APA rulemaking provisions). Because THC undisputedly did not comply with

the APA’s rulemaking procedures when creating this “rule,” Bacon adds, he can challenge it through

section 2001.038 of the APA, which authorizes suits for declaratory judgment against an agency

to determine the “validity or applicability of a rule.” See id. § 2001.038; Sefzik, 355 S.W.3d at 622

(noting that section 2001.038 allows a plaintiff to challenge the validity or applicability of a rule);

Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 499 (Tex. 1997) (same).

               Also within his third issue, Bacon advances what amounts to a more nuanced

version of his trial-level argument that THC’s proceedings had constituted a “contested case,” such




                                                  27
that he could seek judicial review from the agency’s “final decision” under APA 2001.171.28 Again

emphasizing THC’s reference to “conclusive evidence” in its 2005 letter, Bacon insists that the

agency required him to prove conclusively that Mount Bonnell was named for Joseph Bonnell, and

that this imposition of a standard contemplating proof and evidence entitled him to a contested-case

hearing (and, in turn, to seek judicial review via APA section 2001.171).

                None of these claims (or potential claims) invoke the district court’s subject-matter

jurisdiction. The reasons why begin with the fundamental distinction between “standing” before an

administrative agency (i.e., the right to participate in some fashion, formally or informally, in an

administrative proceeding) and the constitutional standing required to invoke a court’s subject-matter

jurisdiction. “Standing” to participate in an agency proceeding does not in itself confer, and

is not the same as, the constitutional standing required to litigate in court. See Stone v. Texas Liquor

Control Bd., 417 S.W.2d 385, 386 (Tex. 1967) (citing Brazosport, 342 S.W.2d at 747); see also

Fort Bend Cnty. v. Texas Parks & Wildlife Comm’n, 818 S.W.2d 898, 899–900 (Tex. App.—Austin

1991, no writ) (discussing prior version of APA and noting that standing to participate in an agency

proceeding does not necessarily confer standing to appeal agency’s decision); City of Houston

v. Public Util. Comm’n, 599 S.W.2d 687, 690 (Tex. Civ. App.—Austin 1980, no writ) (noting that

fact that party is allowed to participate in administrative hearing is not conclusive of the issue of a

“justiciable interest” for purposes of judicial review of agency action). Rather, Bacon must meet

the constitutional standing requirements to seek judicial relief regarding the THC proceedings—and


       28
            Based on the filings in the appellate record, it seems that Bacon’s theory before the
district court was that the proceedings before THC had constituted a “contested case” because the
agency had “contested” (i.e., disagreed with) his application seeking to change the Mount Bonnell
marker. Cf. Tex. Gov’t Code § 2001.003(1) (defining “contested case” as “a proceeding, including
a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are
to be determined by a state agency after an opportunity for adjudicative hearing”).

                                                  28
the bare fact that he could be said to have “standing” before the agency is not enough. See, e.g.,

Texas Rivers Prot. Ass’n v. Texas Natural Res. Conservation Comm’n, 910 S.W.2d 147, 151

(Tex. App.—Austin 1995, writ denied); Fort Bend Cnty., 818 S.W.2d at 899. In short, Bacon’s

status as an applicant for a new Mount Bonnell historical marker does not in itself resolve his

standing problems that we noted at the beginning of this section.

                In any event, even if Bacon could be said to possess some sort of legally protected

interest by virtue of his applicant status, analysis of the statutory scheme defining THC authority

over Official Texas Historical Markers demonstrates that sovereign immunity would bar the

claims addressed in his second and third issues. Contrary to Bacon’s view, the Legislature has

delegated THC broad authority to control the context of historical markers. See Tex. Gov’t Code

§ 442.006(b)–(c) (directing THC “to install markers” and in so doing “assure a degree of uniformity

and quality of historical markers” by “review[ing] and approv[ing] or reject[ing] the . . . text . . . on

any marker”), (h) (directing THC to establish rules for application and review of applications for

historical markers). In fact, the Legislature has delegated expansive powers to THC over everything

from “themes” for the markers, to the number of markers to “award,” to the final approval of the

text and form of the monuments. See id. § 442.006. Furthermore, THC’s delegated authority to

“award” markers and “approve” or “reject” text is not qualified or limited so as to exclude control

over substantive or historical content in particular, as Bacon suggests. See id. To the contrary,

consideration of historical content would be inherent in THC’s performance of its delegated

powers to approve or reject the text of what is, after all, an Official Texas Historical Marker. See

Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192–93 (Tex. 2008)

(recognizing that agency has “implied powers that are reasonably necessary to carry out the express

responsibilities given to it by the Legislature”).

                                                     29
               Likewise, while delegating this broad authority to THC to control historical content

and other features of Official Texas Historical Markers, the Legislature did not prescribe or

require any particular fact-finding procedure that the agency must follow in regard to historical

content. The Legislature required only that THC establish guidelines for marker applications and

THC’s review of such applications, but left the material features of these processes to the agency’s

discretion. See Tex. Gov’t Code § 442.006. Similarly, the rules that THC has adopted regarding

marker applications, while permitting applications to be made and setting forth a process by which

the agency may evaluate them, do not explicitly address or contemplate participation by the applicant

beyond submitting the application itself, nor do they address any determination of historical merits

by the agency or prescribe any process for doing so. See 13 Tex. Admin. Code §§ 21.07, .09 (2012)

(THC, Application Evaluation Procedures). In short, the Legislature and THC’s rules have left the

agency broad discretion regarding the manner in which it determines to approve or reject the text of

an Official Texas Historical Marker, and neither require or prohibit any particular process for

addressing historical content—let alone mandate the trial-type hearings that Bacon advocates. And

as for Bacon’s view that THC has somehow invoked a right to a contested-case hearing that arises

independently from the APA, the Texas Supreme Court has squarely rejected that notion in its recent

City of Waco decision. See Texas Comm’n on Envtl. Quality v. City of Waco, No. 11-0729, slip op.

at 24 (Tex. Aug. 23, 2013), available at http://www.supreme.courts.state.tx.us/historical/082313.asp

(holding that the APA “does not independently provide a right to a contested case hearing”).

               Finally, the Legislature did not authorize any form of judicial review of a THC

decision to “award” or not “award” a marker, approve or reject text or historical content, or any of

the incidental decisions the agency makes during that process. It did not create any such right in

THC’s enabling statute. See Tex. Gov’t Code § 442.006. Nor did it do so indirectly through the

                                                 30
APA because the right of judicial review provided therein applies only to final decisions in contested

cases, see Tex. Gov’t Code § 2001.171, and the THC proceedings here were not a contested case,29

nor were they required to be per City of Waco.

               The absence of judicial review, together with the other features of the statutory

scheme governing THC approval of Official Texas Historical Markers, confirms the Legislature’s

intent to delegate broad discretion to THC to decide the content of such markers and how it

decides it. See Creedmoor-Maha, 307 S.W.3d at 514–15; Merritt v. Cannon, No. 03-10-00125-CV,

2010 WL 3377778, at *2 (Tex. App.—Austin Aug. 27, 2010, pet. denied) (mem. op.) (citing id.).

These statutory features also demonstrate that Bacon can avail himself of neither the waiver of

sovereign immunity in APA section 2001.171 (again, no contested case), nor the ultra-vires

exception—he has not complained of any THC conduct that would exceed its statutory authority,

see Heinrich, 284 S.W.3d at 372 (to come within ultra-vires exception, plaintiff “must allege, and

ultimately prove, that the officer acted without legal authority or failed to perform a purely

ministerial act”). They likewise demonstrate that the “right” or “interest” that a marker applicant

possesses is ultimately little more than the opportunity to petition THC to exercise its broad

discretion so as to agree with the applicant. And while an applicant might reasonably expect that

THC will take certain historical information into account when deciding whether to grant the

application, a “mere expectation” does not rise to a level sufficient to confer standing to contest



       29
           Bacon seems to concede this point on appeal, and wisely so. See Tex. Gov’t Code
§ 2001.003(1) (defining “contested case”); Ramirez v. State Bd. of Med. Exam’rs, 927 S.W.2d 770,
772 (Tex. App.—Austin 1996, writ denied) (holding that “adjudicative hearing” in APA definition
of “contested case” means “a hearing at which the decision-making agency hears evidence and, based
on that evidence and acting in a judicial or quasi-judicial capacity, determines the rights, duties,
or privileges of parties before it”) (citing Best & Co. v. Texas State Bd. of Plumbing Exam’rs,
927 S.W.2d 306, 309 n.1 (Tex. App.—Austin 1996, writ denied)).

                                                 31
THC’s decision in the absence of a legislatively conferred right of judicial review. See National

Carloading Corp. v. Phoenix-El Paso Express, 176 S.W.2d 564, 570 (Tex. 1944) (vested right is

something more than “a mere expectation”); see also Hancock, 239 S.W.2d at 790 (discussing

“inherent right of judicial review” that can arise from adverse effect on vested property right).

Further, absent a right of judicial review from the THC proceedings or other claim to challenge them

that is within the district court’s jurisdiction, Bacon’s section 2001.038 claim for declaratory relief

is moot. See Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 114 (Tex. App.—Austin

2007, no pet.) (noting that declaratory action under section 2001.038 requires existence of underlying

justiciable controversy) (citing Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex. 2004)).

Accordingly, we overrule Bacon’s second and third issues.


       Property interest

               Bacon’s remaining jurisdictional theories, asserted in his fourth and final issue,

relate to his constitutional claims. In an attempt to bring this case under the “inherent right of

judicial review” rubric, Bacon insists that he has complained of conduct by THC that deprived him

of “vested rights,” i.e., property, in a manner violating the due-process guarantees of the Texas and

U.S. constitutions. See Chemical Bank, 369 S.W.2d at 433 (“When a vested property right . . . has

been affected by the action of an administrative agency, thereby invoking the protection of

due process of law, there is an inherent right of appeal.”) (citing Brazosport, 342 S.W.2d at 750;

Hancock, 239 S.W.2d at 790). As the source of the property right on which such a claim must be

based, see id., Bacon points to “valuable copyrighted intellectual property”—the paper that he

filed with THC in 2011, Reconsidering the Historical Marker on Mount Bonnell. As an initial

observation, this paper was not authored by Bacon, but by another Society member, Bothwell, and


                                                  32
it is Bacon, not the Society or its other members, who is the plaintiff here and must possess the

property right and, in turn, standing. But more fundamentally, even if Bacon could claim some sort

of ownership interest in Bothwell’s paper, he has not alleged or presented evidence of facts that

would constitute a deprivation of such rights in a manner violating due-process protections.

                In contending otherwise on appeal, Bacon seems to presume that it is enough for

him to plead legal conclusions to the effect that THC “violated due process” by “depriving”

him of property rights in the paper. To the contrary, Bacon’s burden is to present facts that would

constitute due-process violations. See Creedmoor-Maha, 307 S.W.3d at 517. The only due-process

“deprivations” of which Bacon seems to complain, even implicitly, is that THC disagreed with or

simply ignored the historical content of the paper without holding a trial-like hearing to determine

its historical merits. We have already rejected the notion that the Legislature required THC to

conduct any such procedure before rejecting Bacon’s request, and Bacon refers us to no authority

suggesting that the state or federal constitutions do. Nor does Bacon explain why or how his asserted

“property right” in the paper was somehow infringed by THC’s exercise of its discretion not to

change the Mount Bonnell marker to conform to those views. Bacon’s due-process theory, in short,

is without merit.


       Speech guarantees

                Bacon’s remaining constitutional claims purport to be rooted in the free-speech

guarantees contained in the First Amendment to the U.S. Constitution30 and article I, section 8 of the




       30
            “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const.
amend. I.

                                                 33
Texas Constitution. He places particular emphasis on the portion of the Texas protection that is

emphasized below:


        Every person shall be at liberty to speak, write or publish his opinions on any subject,
        being responsible for the abuse of that privilege; and no law shall ever be passed
        curtailing the liberty of speech or of the press. In prosecutions for the publication of
        papers, investigating the conduct of officers, or men in public capacity, or when the
        matter published is proper for public information, the truth thereof may be
        given in evidence. And in all indictments for libels, the jury shall have the right to
        determine the law and the facts, under the direction of the court, as in other cases.


Tex. Const. art. I, § 8 (emphasis added). Bacon construes the emphasized language to be a

constitutional entitlement to present the “truth” about the origins of the Mount Bonnell name, a

“matter . . . proper for public information,” “in evidence” before THC. Based on this premise, he

insists that THC deprived him of that right by rejecting or ignoring the “truth.” Bacon fundamentally

misconstrues the nature, purpose, and effect of this language. Considered in its proper textual and

historical context, this “truth . . . in evidence” language refers instead to a right to present truth as a

defense to certain libel claims. See Ex parte Tucci, 859 S.W.2d 1, 23–24 (Tex. 1993) (Phillips, C.J.,

concurring) (exhaustively analyzing the nature and history of article I, section 8). This language

simply has no application here. Nor has Bacon otherwise presented any facts that would constitute

violations of the Texas or federal free-speech protections.

                We overrule Bacon’s fourth issue.


“Fact issues” and right to replead

                In addition to advocating the foregoing jurisdictional theories, Bacon complains that

the district court committed two types of procedural errors in rendering its judgment of dismissal.

First, Bacon insists that the district court pretermitted numerous “fact issues,” citing Miranda. The


                                                    34
principle that Bacon attempts to invoke, as previously explained, holds that where a plea to the

jurisdiction challenging the existence of a jurisdictional fact that overlaps the merits of a claim, the

plea cannot be sustained unless the challenger overcomes a summary-judgment-like burden of

conclusively negating the fact’s existence as a matter of law; otherwise, the fact’s existence must

be determined at trial. See Miranda, 133 S.W.3d at 228. In contrast, to the extent Bacon complains

of “fact issues” regarding jurisdictional facts that do not overlap the merits of his claims—e.g.,

facts that went solely to his standing31—we would presume that the district court implicitly found (or

failed to find) them in a manner that supported its judgment. See University of Tex. v. Poindexter,

306 S.W.3d 798, 806–07 (Tex. App.—Austin 2009, no pet.); Combs, 292 S.W.3d at 719. But

even leaving this distinction aside, the district court would not have erred in proceeding to grant

THC’s plea.

                 Bacon’s asserted “fact issues” chiefly concern the copies of meeting agendas and

minutes that THC attempts to present for the first time on appeal. As previously explained, these

documents would have no impact on our analysis even if we were to consider them. The other “fact

issues” Bacon identifies concern the import or effect of the THC letters that are in the record,

including whether the 2005 events should be considered to represent an administrative proceeding

separate from Bacon’s request in 2011 and whether THC’s 2005 letter referencing “conclusive

evidence” signaled the imposition of an evidentiary burden. Even assuming these issues should

properly be considered questions of “fact” as opposed to legal effect, our analysis has assumed

Bacon’s position, and any dispute regarding these questions proved to be immaterial in any event.




        31
             See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

                                                  35
See Gattis v. Duty, 349 S.W.3d 193, 207–08 (Tex. App.—Austin 2011, no pet.); Creedmoor-Maha,

307 S.W.3d at 526. In short, no “fact issues” precluded the district court from granting THC’s plea.

               Bacon’s second asserted procedural error is that the district court did not afford

him an opportunity to replead before dismissing his suit. As previously noted, a claimant is entitled

to an opportunity to replead if the jurisdictional defects in his pleadings are not considered to be

incurable. See Sefzik, 355 S.W.3d at 623; Koseoglu, 233 S.W.3d at 840; Miranda, 133 S.W.3d

at 226–27. Because Bacon has relied on numerous jurisdictional theories that he raises for the first

time on appeal, our analysis rejecting those theories has, in essence, also confirmed that those

jurisdictional defects are incapable of being cured. Accordingly, the district court was not required

to afford him an additional opportunity to invoke its subject-matter jurisdiction.


                                          CONCLUSION

               Were we called upon to decide, at least on this record, whether the current Official

Texas Historical Marker at Mount Bonnell is entirely accurate, or if the factual assertions within it

are supported by legally or factually sufficient evidence of the sort that a fact-finder could

properly rely upon in court, we might well conclude that these are close and difficult questions. For

that matter, we might well conclude the same thing about Bacon’s competing version of history,

which rests upon a succession of inferences derived from circumstantial evidence that is now almost

two centuries old. But this is not a dispute into which the Texas Judiciary has the subject-matter

jurisdiction to intervene, and that is what controls our disposition of this appeal.

               In this respect, at least, the outcome of this appeal would be the same even if the

Mount Bonnell historical marker had stated that Bigfoot Wallace had encountered not only the

“Indian” he killed nearby, but also Christopher Columbus and dinosaurs. The prospect that THC


                                                 36
would actually approve such text in an Official Texas Historical Marker is presumably unlikely

(one hopes), but if the agency were ever so inclined, the checks and balances found elsewhere

in the Executive Branch and in the Legislature might well give it some pause. Likewise, it would

remain the Legislature’s prerogative, within constitutional constraints, to alter these checks

and balances, including and not limited to providing the additional check of a judicial remedy. It is

in such mechanisms of the Legislative and Executive Branches, not in the Judicial Branch, where

Bacon’s remedy, if any, would currently lie.

               Accordingly, we affirm the district court’s judgment of dismissal.



                                               __________________________________________
                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: September 12, 2013




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