                                     NO. 12-18-00076-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

RAY'S DRIVE INN, INC. D/B/A                          §      APPEAL FROM THE 217TH
RAY'S DRIVE IN,
APPELLANT

V.                                                   §      JUDICIAL DISTRICT COURT

ANGELINA COUNTY & CITIES
HEALTH DISTRICT,
APPELLEE                                             §      ANGELINA COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Ray’s Drive Inn, Inc. d/b/a Ray’s Drive In (Ray’s) brought suit under the Texas Uniform
Declaratory Judgment Act against Angelina County and Cities Health District (the Health
District) seeking a declaration that the Texas Food Establishment Rules do not require it to have
a three compartment sink in its restaurant. The Health District through its supervisor, Sharon
Shaw, had refused to reissue Ray’s permit to operate a food establishment unless Ray’s replaced
its two compartment sink with a three compartment sink. The Health District moved to dismiss
Ray’s suit asserting that governmental immunity barred Ray’s suit and deprived the trial court of
subject matter jurisdiction. The trial court granted the Health District’s motion. In one issue,
Ray’s maintains the trial court erred in granting the Health District’s motion to dismiss for lack
of jurisdiction. We affirm.


                                             BACKGROUND
       Ray’s is a restaurant located in Lufkin, Texas. The Health District is charged with
enforcement of the Texas Food Establishment Rules.1               The Health District inspected the
restaurant on January 17, 2013, July 25, 2013, January 27, 2014, July 29, 2014, and January 14,

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           See TEX. HEALTH & SAFETY CODE ANN. § 437.002(a) (West 2017).
2015. None of these inspections resulted in a complaint regarding Ray’s two compartment sink.
However, after an inspection on January 19, 2016, the Health District told Ray’s it would not
reissue Ray’s permit to operate a food establishment unless Ray’s replaced the two compartment
sink in the restaurant with a three compartment sink.
       In its suit against the Health District, Ray’s maintained that the Health District’s refusal
to issue a permit unless a three compartment sink is installed is an ultra vires act beyond the
discretion granted the Health District by the applicable statutes and rules. The Health District
moved to dismiss Ray’s suit for want of jurisdiction contending it was barred by sovereign
immunity.    The trial court granted the Health District’s motion to dismiss for want of
jurisdiction. This proceeding followed.


                             DISMISSAL FOR WANT OF JURISDICTION
       In its sole issue, Ray’s challenges the trial court’s decision to grant the Health District’s
motion to dismiss for lack of jurisdiction.
Standard of Review and Applicable Law
       We review a trial court’s order granting or denying a plea to the jurisdiction de novo.
Houston Mun. Empl. Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). An appellate
court reviewing such an order considers “the facts alleged by the plaintiff and, to the extent it is
relevant to the jurisdictional issue, the evidence submitted by the parties. Tex. Natural Res.
Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). 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. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
       Without subject matter jurisdiction, a court lacks authority to render judgment and must
dismiss the claim. See City of Houston v. Rhule, 417 S.W.3d 440, 442–43 (Tex. 2013). The
determination of whether the trial court has subject-matter jurisdiction begins with pleadings.
See Miranda, 133 S.W.3d at 226. The pleader has the initial burden of alleging facts that
affirmatively demonstrate the trial court’s jurisdiction. See id. To determine whether a party
asserted a valid ultra-vires claim, the reviewing court must consider and construe the relevant
statutory provisions, apply them to the facts alleged, and determine whether those facts allege
acts beyond the official’s authority or a failure to perform a purely ministerial act. See Houston



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Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 161, 164-68 (Tex. 2016); Sw.
Pharmacy Solutions, Inc. v. Tex. Health & Human Servs. Comm’n, 408 S.W.3d 549, 557
(Tex. App.—Austin 2013, pet. denied). If the pleadings negate jurisdiction, the suit should be
dismissed. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012).
       The Texas Uniform Declaratory Judgment Act is not a general waiver of sovereign
immunity and does not enlarge a trial court’s jurisdiction. City of El Paso v. Heinrich, 284
S.W.3d 366, 370–71 (Tex. 2009).        A request for declaratory relief does not alter a suit’s
underlying nature. Id.
       Governmental immunity deprives Texas courts of subject matter jurisdiction over any
suit against the state, its agencies and agents, and in some instances, governmental subdivisions,
absent the State’s consent. See Miranda, 133 S.W.3d at 224. There is no right to judicial review
of an administrative order unless a statute explicitly provides that right or the order violates a
constitutional right. See Gen. Servs. Comm’n v. Little-Tex. Insulation Co., 39 S.W.3d 592, 599
(Tex. 2001). Therefore, as a general rule, governmental immunity deprives courts of subject
matter jurisdiction to review agency actions absent a legislatively granted right to judicial
review. See Morath v. Sterling City Indep. Sch. Dist., 499 S.W.3d 407, 412 (Tex. 2016). “An
agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the
Legislature intended for the regulatory process to be the exclusive means of remedying the
problem to which the regulation is addressed.” In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619,
624–25 (Tex. 2007). “When the Legislature grants an administrative agency sole authority to
make an initial determination in a matter, the agency has exclusive jurisdiction over the matter. “
Ferrell, 248 S.W.3d at 157.
       However, “an action to determine or protect a private party’s rights against a state official
who has acted without legal or statutory authority is not a suit against the State that sovereign
immunity bars.” Heinrich, 284 S.W.3d at 368 (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d
401, 405 (Tex. 1997)). Governmental immunity does not bar suits complaining of an officer’s
failure to perform a ministerial act or an exercise of judgment or limited discretion without
reference to or in conflict with the law authorizing the official to act. Houston Belt & Terminal
Ry. Co., 487 S.W.3d at 163. Ministerial acts are those for which “the law prescribes and defines
the duties to be performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment.” Sw. Bell Tel. L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015). An



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ultra vires claim based on actions taken “without legal authority” has two components: (1)
authority giving the official some, but not absolute, discretion to act and (2) conduct outside that
authority. Hall v. McRaven, 508 S.W.3d 232, 239 (Tex. 2017). If the plaintiff alleges only facts
within the officer’s legal authority and discretion, the claim is barred by sovereign immunity.
See Heinrich, 284 S.W.3d at 372. An incorrect determination rendered pursuant to the agency’s
authority is not a determination made outside of that authority. See Hall, 508 S.W.3d at 242–43
(erroneous exercise of discretion not ultra vires). Whether a suit attacking an exercise of limited
discretion will be barred depends upon the grant of authority at issue. Houston Belt & Terminal
Ry. Co., 487 S.W.3d at 164.
          Chapter 437 of the Texas Health and Safety Code grants counties and public health
districts the authority to enforce state law and rules adopted under state law concerning food
service establishments. TEX. HEALTH & SAFETY CODE ANN. § 437.002(a) (West 2017). They
may require food service establishments to obtain a permit from the district. Id. § 437.004(a)
(West).      Counties and public health districts may enter the premises of a food service
establishment to determine compliance with state law, rules adopted under state law, and orders
adopted by the department, county or district. Id. §§ 437.009, 437.011 (West 2017). A county or
public health district may suspend or revoke a permit if it finds that the establishment is not in
compliance. Id. § 437.014(a) (West 2017).
          That part of the administrative code dealing with health services provides the regulatory
authority shall apply these rules to promote its underlying purpose of “safeguarding public health
and ensuring that food is safe, unadulterated, and honestly presented when offered to the
consumer.” 25 TEX. ADMIN. CODE §§ 228.241(1), 228.242. Section § 228.107(b) addresses
“[m]anual warewashing, sink compartment requirements” and provides, in pertinent part, as
follows:


          (1) Except as specified in paragraph (3) of this subsection, a sink with at least three compartments
          shall be provided for manually washing, rinsing, and sanitizing equipment and utensils.

                   …

          (3) Alternative manual warewashing equipment may be used when there are special cleaning
          needs or constraints and its use is approved. Alternative manual warewashing equipment may
          include … two compartment sinks as specified in paragraphs (4) and (5) of this subsection….

          (4) Before a two-compartment sink is used:




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                (A) The permit holder shall have its use approved by the regulatory authority; and

                (B) The permit holder shall limit the number of kitchenware items cleaned and sanitized
                in the two compartment sink, and shall limit warewashing to batch operations for
                cleaning kitchenware such as between cutting one type of raw meat and another or
                cleanup at the end of a shift, and shall:

                        (i) make up the cleaning and sanitizing solutions immediately before use and
                        drain them immediately after use; and
                        (ii) use a detergent-sanitizer to sanitize and apply the detergent-sanitizer in
                        accordance with the manufacturer’s label instructions and as specified in
                        §228.111(o) of this title; or
                        (iii) use a hot water sanitization immersion step as specified in § 228.115(f)(3)
                        of this title.

       (5) A two-compartment sink may not be used for warewashing operations where cleaning and
       sanitizing solutions are used for a continuous of intermittent flow of kitchenware or tableware in
       an ongoing warewashing process.


Id. § 228.107. Accordingly, the Administrative Code requires a three compartment sink for
manual ware washing. See id. § 228.107(b)(1). The public health district is given the discretion
to approve the use of a two compartment sink provided the permit holder shall have its use
approved by the regulatory authority (public health district). Id. § 228.107(b)(4)(A). The Texas
Food Establishment Rules define “approved” as “[a]cceptable to the regulatory authority based
on a determination of conformity with principles, practices, and generally recognized standards
that protect public health.” Id. § 228.2(4).
Discussion
       Ray’s relies on the ultra vires doctrine to invoke the trial court’s jurisdiction. Ray’s
contends that the Health District’s refusal to renew its food handlers permit unless and until a
three compartment sink was installed was an action beyond the limited discretion granted the
Health District by the legislature. Ray’s also maintains the application of the Texas Food
Establishment Rules provide an exception to the three compartment sink rule whose application
requires no judgment or discretion. It insists that a correct interpretation of the rules requires the
public health district to approve a two compartment sink if:


           1.   The two compartment sink’s use is approved by the regulatory authority, and

           2.   The permit holder limits the number of kitchenware items sanitized in the two
                compartment sink and limits ware washing to batch operations only.




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In Ray’s view, application of these rules allows for no judgment or discretion by the Health
District and is therefore a purely ministerial act. Ray’s insists that “[t]here is nothing in the
Rules that gives [the Health District] the sole discretion to determine whether a two compartment
sink or a three compartment sink should be required.” It argues that the “guidelines for the
determination of the use of a two compartment sink were set forth specifically in the Rules and
the [Health District] must follow them.”
        We reviewed the allegations in Ray’s petition in comparison with the statutes and rules
that grant and define the Health District’s authority.        In doing so, we conclude that the
determination of whether a three or two compartment sink is used is within the discretion of the
Health District. The rules upon which Ray’s relies are guides for the Health District’s discretion,
not precise mandates excluding discretion. Even Ray’s refers to them as “guidelines.” They
require that a two compartment sink’s use be “approved” by the Health District. See 25 TEX.
ADMIN. CODE § 228.107 (b)(4)(A). Approval means “[a]cceptable to the regulatory authority
based on a determination of conformity with principles, practices, and generally recognized
standards that protect public health.” Id. § 228.2(4). The definition assumes the exercise of
judgment or discretion by the regulatory authority in evaluating whether the installation or
practice conforms to the standards set forth. It is impossible to classify as “ministerial” a
decision which must be based on “principles, practices and generally recognized public health
standards.” The definition implies a considered and reasoned judgment based on the guiding
principles in the definition.
        As previously discussed, Chapter 437 of the Texas Health and Safety Code sets out a
regulatory system that indicates the legislature intended that counties and health districts have
wide latitude to deal with problems that the regulation addresses. We have considered the
statutes and rules that give the Health District authority to act. The Health District has the
authority to conduct inspections of restaurants to determine compliance and the power to
exercise its judgment to enforce compliance when inspection reveals what it considers a
nonconforming condition.        See TEX. HEALTH & SAFETY CODE ANN. §§ 437.002, 437.009,
437.011. Accordingly, the Health District’s requirement of a three compartment sink for Ray’s
restaurant was an action well within the authority granted the Health District.
        Ray’s contends that it invoked the trial court’s inherent jurisdiction by alleging ultra vires
conduct by the Health District. Therefore, Ray’s maintains that the trial court erred in dismissing



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his suit for want of jurisdiction. Ray’s had the initial burden of alleging facts that demonstrate
the court’s jurisdiction. See Miranda, 133 S.W.3d at 226. However, Ray’s allegations consist
chiefly of legal conclusions. Ray’s characterization of the Health District’s refusal to approve its
two compartment sink as “outside [Sharon Shaw’s] authority” or a failure to “perform a purely
ministerial act” does not end our inquiry. We must still construe the statutes and rules implicated
and apply them to the facts Ray’s pleaded to determine if Ray’s alleged ultra vires acts by the
Health District.      In assessing the sufficiency of Ray’s pleadings, we are not bound by its
characterization of the Health District’s acts. We conclude that the actions or failures to act that
Ray’s describes as beyond the Health District’s authority are, in reality, within the Health
District’s authority.
         Ray’s factual allegations of ultra vires conduct plainly complain that the Health District
decided incorrectly when it chose to withhold Ray’s permit until the installation of a three
compartment sink. But even the fact that an agency’s decision is wrong does not invalidate its
authority to make the decision. See North Alamo Water Supply Corp. v. Tex. Dep’t of Health,
839 S.W.2d 455, 459 (Tex. App.—Austin 1992, writ denied). Ray’s petition only alleges acts or
a failure to act that are within the Health District’s legal authority or discretion. None of the
allegations invoked the trial court’s inherent jurisdiction to remedy ultra vires agency actions.
Thus, Ray’s claim seeks to control state action and is barred by sovereign immunity. See
Heinrich, 284 S.W.3d at 372. For all the above reasons, we conclude that the trial court did not
err in dismissing Appellant’s suit for want of jurisdiction.


                                                   DISPOSITION
         The judgment is affirmed.


                                                                               BILL BASS
                                                                                Justice



Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                                   (PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                          NO. 12-18-00076-CV


                   RAY'S DRIVE INN, INC. D/B/A RAY'S DRIVE IN,
                                    Appellant
                                       V.
                  ANGELINA COUNTY & CITIES HEALTH DISTRICT,
                                     Appellee


                                Appeal from the 217th District Court
                     of Angelina County, Texas (Tr.Ct.No. CV-00276-16-05)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, RAY'S DRIVE INN, INC. D/B/A RAY'S DRIVE IN, for which
execution may issue, and that this decision be certified to the court below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
