Reversed and Rendered and Memorandum Opinion filed August 13, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00617-CV

  SANDS L. STIEFER, CHIEF APPRAISER OF THE HARRIS COUNTY
                APPRAISAL DISTRICT, Appellants
                                         V.

            EDWARD MOERS AND DANIEL MOERS, Appellees

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-58215

                  MEMORANDUM OPINION

      Appellees, Edward and Daniel Moers (the “Moerses”), sued Harris County
Appraisal District, Chief Appraiser of Harris County Appraisal District, Sands L.
Stiefer, and the Harris County Appraisal Review Board to protest the denial of the
Moerses’ applications for open-space land appraisal. Appellant, Sands L. Stiefer
(“Stiefer”), filed a plea to the jurisdiction and motion to dismiss, which the trial
court granted in part, and denied in part. In one issue, Stiefer appeals that portion
of the order denying his plea to the jurisdiction and motion to dismiss. We reverse
and render.

                                I. BACKGROUND

      The Moerses own and reside on two non-contiguous tracts of land in
Cypress, Texas. They claim to have begun an agricultural enterprise consisting of
raising organic, grass-fed sheep. The Moerses claim that their land should have
been appraised at special, lower values available only to agricultural land (“open
space” appraisal or valuation) under Article VIII, section 1-d-1 of the Texas
Constitution and Texas Tax Code Section 23.51. See Tex. Const. art. VIII, § 1-d-
1; Tex. Tax Code Ann. § 23.51 (West, Westlaw through 2015 R.S.). Harris
County Appraisal District denied the Moerses’ application to have their land
appraised at the lower values available to “open-space” land.        The Moerses
protested the denial to the Harris County Appraisal Review Board. The Harris
County Appraisal Review Board denied their protest.

      The Moerses sued the Harris County Appraisal District, the Harris County
Appraisal Review Board and Stiefer, appealing the denial of their protest to the
valuation of their properties for tax years 2013 and 2014. They also sought to
compel Stiefer to comply with the procedures set forth in Texas Tax Code Section
42.21 regarding an order issued in a prior lawsuit. See Tex. Tax Code Ann. §
42.21 (West, Westlaw through 2015 R.S.).

      Stiefer filed a plea to the jurisdiction and motion to dismiss asserting
immunity and arguing that the Moerses did not allege a valid waiver of immunity,
the Tax Code does not waive immunity or authorize a suit against him, and the
Declaratory Judgment Act may not be used to avoid the exclusive remedies of the
Tax Code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq. (West,


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Westlaw through 2015 R.S.); Tex. Tax Code Ann. § 42.09(a) (West, Westlaw
through 2015 R.S.).

      The trial court granted Stiefer’s plea to the jurisdiction and motion to
dismiss on the Moerses’ claims relating to judicial review of the valuation set by
the Harris County Appraisal Review Board. The trial court denied the plea to the
jurisdiction and motion to dismiss as to the Moerses’ claims of constitutional
violations, denial of due process, request for declaratory relief, and injunctive relief
based on ultra vires.

                                     II. ANALYSIS

      In his sole issue, Stiefer contends the trial court erred in denying his plea to
the jurisdiction and motion to dismiss.

A.    Standard of Review

      A plea to the jurisdiction challenges the trial court’s subject matter
jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “A
trial court must grant a plea to the jurisdiction . . . when the pleadings do not state a
cause of action upon which the trial court has jurisdiction.” Harris Cnty. v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004). Whether a court has jurisdiction is a question of
law which we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

      In reviewing an order on a plea to the jurisdiction, we consider the pleadings
and factual assertions, as well as evidence in the record that is relevant to the issue
of jurisdiction. Klumb v. Municipal Employees Pension System, 458 S.W.3d 1, 8
(Tex. 2015) (citing City of Elsa v. Gonzalez, 325 S.W.3d 547, 554 (Tex. 2010)).
The plaintiff bears the burden of pleading specific allegations of fact which
affirmatively demonstrate the trial court’s jurisdiction. Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see also Tex. Dept. of Parks

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and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the evidence creates
a fact question on jurisdiction, the trial court must deny the plea and the trier of
fact must resolve the issue. Id. at 227–28. If the evidence is undisputed or if the
plaintiff fails to raise a fact question as to jurisdiction, the trial court rules on the
plea as a matter of law. Id. at 228. In reviewing the plea, we do not consider the
merits of the case. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

B.     Governing Law

       As noted above, the Moerses’ complaints relate to open-space land
appraisal. To qualify for this type of appraisal, the property owner is required to
demonstrate that the land is currently devoted principally to agricultural use to the
“degree of intensity” generally accepted in the area and that it has been devoted
principally to agricultural use or to production of timber or forests for five of the
preceding seven years. See Tex. Tax Code Ann. § 23.51(1). Section 23.57(a), (c)
grants authority to the chief appraiser to determine open-space land appraisal. See
Id. § 23.57 (a), (c) (West, Westlaw through 2015 R.S.). The Legislature delegated
to the Comptroller of Public Accounts the authority to establish eligibility
standards, which are contained in appraisal manuals. See id. § 23.55(d) (West,
Westlaw through 2015 R.S.).             For particular use with agricultural land, the
Comptroller created the Manual for the Appraisal of Agricultural Land (the
“Manual”), which has the force and effect of law. See 34 Tex. Admin. Code §
9.4001 (1990); Pizzitola v. Galveston Cnty. Cent. Appraisal Dist., 808 S.W.2d 244,
248 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (citing General Elec. Credit
Corp. v. Smail, 584 S.W.2d 690, 694 (Tex. 1979)).1



       1
              The        Manual       can      be     found      in   its   entirety   at
http://comptroller.texas.gov/taxinfo/proptax/agland/part1.pdf.

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           The Moerses protested to the appraisal review board the denial of open-
space appraisal. The review board denied their protests. In their suit appealing the
determination of the review board, Moerses sued the appraisal review board and
Stiefer, in his official capacity. The Moerses argued that their claims avoided the
exclusive remedies of the Tax Code; thus, immunity did not attach and their claims
against Stiefer should not be dismissed. The Moerses pled bases for waiver of
immunity existed under the Declaratory Judgment Act, Stiefer committed ultra
vires acts and his actions constituted violations of the Moerses’ constitutional
rights. Stiefer filed a plea to the jurisdiction asserting immunity, claiming that the
Moers did not plead a waiver of immunity.

B.         Declaratory Judgment

           The Moerses alleged several grounds for relief pursuant to the Uniform
Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et
seq. They requested that the trial court declare that Stiefer2 imposed “degree of
intensity guidelines or rules for open-space land eligibility relating to tax years
2013 and 2014, in violation of constitutional and statutory requirements for
agricultural appraisal which are neither valid nor enforceable.” They contended
that Stiefer added other requirements for property owners of open-space land to
achieve an agricultural appraisal which are inconsistent with the requirements of
the Texas Constitution, the Tax Code and the Manual.                      The Moerses further
alleged that Stiefer “improperly set arbitrary minimum conditions that must be met
by a property owner to meet the degree of intensity test required for 1-d-1
agricultural appraisal.” In sum, although phrased as declaratory relief, the relief



           2
               The Moerses made these allegations against both Harris County Appraisal District and
Stiefer.

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the Moerses seek is a change to their assessments—not a declaration that the
controlling provisions are unconstitutional.

      A change to an assessment of taxes on the Moerses’ land is one subject to
the provisions of the Tax Code. See Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d
618, 622 (Tex. 2011) (holding where actions under a statute are challenged, but the
constitutionality of the statute is not, declaratory judgment action does not waive
immunity); see also Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex.
2006) (per curiam) (requiring adherence to Tax Code’s administrative framework
when taxpayer seeks to set aside tax assessments but not when asserting purely
constitutional challenges); Harris Cnty. Appraisal Dist. v. ETC Marketing, Ltd.,
399 S.W.3d 364, 368 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(holding that taxpayer who urges a constitutional challenge and also seeks to set
aside tax assessments is not relieved from exhausting administrative remedies).

      In sum, we conclude that the Moerses’ declaratory judgment action does not
state a waiver of governmental immunity. Further, to the extent that the Moerses
seek retrospective relief, those claims are controlled by the exclusive remedies of
the Tax Code, which does not authorize suit against Stiefer. “Any other petition
for review under this chapter must be brought against the appraisal district. . . .”
See Tex. Tax Code Ann. § 42.21(b); Rourk, 194 S.W.3d at 502.

C.    Ultra Vires

      Because a state official’s illegal or unauthorized acts are not acts of the
State, governmental immunity is waived with respect to those acts. See Fed. Sign
v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997). “A suit asserting that a
government officer acted without legal authority or seeking to compel him to
comply with statutory or constitutional provisions is an ultra vires suit and is not
subject to pleas of governmental immunity.”         Lone Star College System v.
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Immigration Reform Coalition of Tex. (IRCOT), 418 S.W.3d 263, 272 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d) (citing City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009)). The ultra vires suit seeks to enforce existing
policy, not to alter it. Id. The ultra vires exception to governmental immunity
depends upon a plaintiff’s allegation, and ultimately proof, that the officer acted
without legal authority or that he failed to perform a purely ministerial act. Id. A
complaint about how the officer exercised his discretion is not an ultra vires
complaint. Id. Additionally, the exception to immunity allows only prospective
declaratory or injunctive relief, not retroactive relief. Id. (citing Heinrich, 284
S.W.3d at 374–77).

      In support of their ultra vires claim, the Moerses alleged inter alia that
Stiefer violated of the requirements of Tax Code Section 23.52(d) and failed to
determine the “degree of intensity” as required by the Manual for Appraisal of
Agricultural Land (the “Manual”).       Further, they requested he be required to
comply with the statutory framework and determine the degree of intensity as
outlined by the Manual. See Tex. Tax Code Ann. § 23.52(d) (West, Westlaw
through 2015 R.S.) (setting forth procedure for appraisal of qualified agricultural
land). They also requested that Stiefer be precluded from promulgating additional
requirements that are contrary to or inconsistent with the provisions of the Tax
Code relating to agricultural appraisal for tax years 2013 and 2014.

      In his plea to the jurisdiction and motion to dismiss, Stiefer asserted the
allegations in the Moerses’ petition did not plead an ultra vires claim because they
were complaints that Stiefer’s actions violated the Tax Code, or were examples of
Stiefer’s alleged failures to follow the statutory framework.

      We conclude that the substance of the Moerses’ allegations is a series of
complaints concerning Stiefer’s actions—not complaints that he acted illegally or

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without reference to controlling legal authority. The Moerses’ complaint regarding
Stiefer’s failure to set the degree of intensity is analogous to a claim that he “got it
wrong.” See MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal
Dist. Review Bd., 249 S.W.3d 68, 80–81 (Tex. App.—Houston [1st Dist.] 2007,
pet. denied) (holding “an incorrect agency determination rendered pursuant to the
agency’s authority is not a determination made outside that authority.”) Stated
differently, the Moerses complained that Stiefer reached an incorrect result. Such
an allegation is insufficient to state an ultra vires claim. See Moers v. Harris Cnty.
Appraisal Dist., No. 01-13-00549-CV, 2015 WL 3981735, at *7 (Tex. App.—
Houston [1st Dist.] June 30, 2015, no pet. h.)3 (citing Creedmoor-Maha Water
Supply Corp. v. Tex. Comm’n on Env’t Quality, 307 S.W.3d 505, 517–18 (Tex.
App.—Austin 2010, no pet.)).

       The Moerses also contend that Stiefer utilized guidelines which exceeded
those contemplated by statute; specifically, that Stiefer added standards (which
they refer to as eligibility requirements) for “minimum land area” and “minimum
number of animals.” However, Tax Code Section 23.51 provides that the property
owner must demonstrate land is devoted primarily to agricultural use “to the
degree of intensity generally accepted in the area.” See Tex. Tax Code Ann. §
23.51. Thus, Stiefer’s identification and use of criteria for the area do not conflict
with the statutory scheme set forth in Section 23.57(a), (c). See Tex. Tax Code
Ann. § 23.57 (a), (c); Moers, 2015 WL 3981735, at *5 (stating that the standards
do not violate or conflict with the legislative scheme).

       We hold the Moerses’ complaints do not allege ultra vires activity that
would waive governmental immunity.
       3
          In the Moers case analyzed by the First Court of Appeals, the Moerses challenged the
denial of their open-space land applications for 2010-2012. See Moers, 2015 WL 3981735, at
*1.

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D.     Due Process and Constitutional Violations

       In the section of their petition entitled “Denial of Due Process,” the Moerses
contended that the appraisal review board failed to render decisions pursuant to
their protests for tax year 2013 and refused to grant hearings for tax years 2012-
2014. They asserted that immunity was waived under Texas Tax Code Section
41.45(f) which provides:

       A property owner who has been denied a hearing to which the
       property owner is entitled under this chapter may bring suit against
       the appraisal review board by filing a petition or application in district
       court to compel the board to provide the hearing. If the property
       owner is entitled to the hearing, the court shall order the hearing to be
       held and may award court costs and reasonable attorney fees to the
       property owner.
Tex. Tax Code Ann. 41.45(f) (West, Westlaw through 2015 R.S.).

       The relief the Moerses sought relates directly to actions the appraisal review
board failed or refused to take. Section 41.45(f) provides that the Moerses could
file suit to compel the appraisal review board to provide a hearing; however,
Section 41.45(f) does not provide for a waiver of sovereign immunity. See id.
Rather, Section 41.45(f) provides that the Moerses are entitled to file a petition
against the appraisal review board to compel the board to provide a hearing and it
specifically provides that the suit is against the appraisal review board, not the
chief appraiser. See id. The Moerses did not allege any violation of due process
rights against Stiefer.4


       4
          The Moerses argue that Stiefer did not challenge the due process allegation in the trial
court and it is not preserved for appellate review. We disagree. The allegations in the “due
process” section are substantially similar to the allegations in the remainder of the petition which
were addressed in the plea to the jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88,
94–96 (Tex. 2012) (holding that even where immunity is first raised on appeal, the appellate
court has jurisdiction to address the merits to be consistent with the purpose of Section 51.
014(a) and to increase judicial efficiency). See also Tex. Civ. Prac. & Rem. Code Ann.
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       Relying on Article VIII, section 1-d-1 of the Texas Constitution and Section
23.51 of the Tax Code, the Moerses also alleged that Stiefer’s actions amounted to
constitutional violations of their right to have their land appraised at the lower
open-space agricultural land value. See Tex. Const. art. VIII, § 1-d-1; Tex. Tax
Code Ann. § 23.51. While framed as constitutional violations, these are claims
that the Moerses’ land should have been appraised in a certain manner in order to
obtain a lower amount of taxation.             Thus, they are subject to the exclusive
remedies of the Tax Code. See Tex. Tax Code Ann. § 41.41(a)(5), (9) (West,
Westlaw through 2015 R.S.); see also Rourk, 194 S.W.3d at 502; Bauer-Pileco,
Inc. v. Harris Cnty. Appraisal Dist., 443 S.W.3d 304, 315 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied) (stating that constitutional violations are subject to the
exclusive remedies of the Tax Code) (citing Aramco Associated Co. v. Harris
Cnty. Appraisal Dist., 33 S.W.3d 361, 364 (Tex. App.—Texarkana 2000, pet.
denied)).

       We conclude that the Tax Code requires that the Moerses exhaust all
administrative remedies even with regard to their allegations of constitutional
violations made here; thus the trial court lacks subject matter jurisdiction to
consider them. Additionally, we hold that to the extent the Moerses asserted due
process claims against Stiefer, the trial court erred in denying his plea to the
jurisdiction and motion to dismiss.

       Having addressed the merits, we sustain Stiefer’s sole issue, reverse the trial
court’s order denying his plea to the jurisdiction and motion to dismiss, and render



51.014(a) (West, Westlaw through 2015 R.S.); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 845 (Tex. 2007) (approving consideration of jurisdictional plea filed by the governmental
entity and deciding the question of immunity for the state official sued in his official capacity
who did not file a plea).

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judgment dismissing for lack of subject-matter jurisdiction all the claims asserted
by Edward and Daniel Moers against Stiefer.




                                      /s/    John Donovan
                                             Justice


Panel consists of Justices Christopher, Donovan, and Wise.




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