Affirmed and Opinion Filed July 22, 2016.




                                                            In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas
                                                  No. 05-15-01104-CV

  RANDY L. WINEINGER, IN HIS CAPACITY AS HUNT COUNTY TAX ASSESSOR-
                         COLLECTOR, Appellant
                                  V.
         Z BAR A RANCH, LP AND JAMES ALLEN WALKER, Appellees

                             On Appeal from the 196th Judicial District Court
                                          Hunt County, Texas
                                     Trial Court Cause No. 80,762

                                      MEMORANDUM OPINION
                               Before Justices Lang-Miers, Brown, and Schenck
                                         Opinion by Justice Schenck
         Randy L. Wineinger, in his capacity as Hunt County Tax Assessor-Collector, (“Mr.

Wineinger”) appeals the trial court’s order denying his motion to dismiss the petition filed by Z

Bar A Ranch, LP (“Z Bar”) for lack of jurisdiction. Mr. Wineinger argues the trial court erred in

denying his motion because Mr. Wineinger has immunity from suit as a government official, Z

Bar’s declaratory-judgment claim does not invoke a waiver of immunity, and Z Bar failed to

establish jurisdiction or prove Mr. Wineinger waived immunity from suit. We affirm the trial

court’s order denying Mr. Wineinger’s motion to dismiss for lack of jurisdiction.1 Because all

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.


    1
      Mr. Wineinger’s motion also sought to dismiss cross-claims filed against him by James Allen Walker (“Mr. Walker”). Since Mr.
Wineinger filed his notice of appeal, Mr. Walker dismissed his cross-claims against Mr. Wineinger. We therefore do not address Mr.
                                        FACTUAL & PROCEDURAL BACKGROUND

          The underlying case arises from two separate purchases of real property, although the

parties dispute whether the same piece of real property was sold twice or whether the two

purchasers bought two different pieces of real property. On December 9, 2013, Z Bar purchased

real property from the Hunt County Tax Assessor-Collector’s Office (“TAC”) pursuant to

section 34.05 of the Texas Tax Code. TEX. TAX CODE ANN. § 34.05 (West 2015). Z Bar paid by

check, noting it was for the purchase of “200 N Fifth St/Acct#52487,” but the purchase

document issued by the TAC stated Z Bar purchased real property described as “N. Fifth St. . . .

Property Acct # 52487.” Then, on January 17, 2014, James Allen Walker (“Mr. Walker)

purchased real property from the TAC at a tax auction pursuant to section 34.01 of the tax code.

Id. § 34.01. Mr. Walker’s receipt described the real property as 200 N. Fifth Street and included

the property-account number 74149.2

          Believing it was the owner of the real property located at 200 N. Fifth Street, Z Bar made

improvements on the property, beginning the day after purchase and continuing through the end

of May 2014. At the end of January 2014, Z Bar received a deed from the TAC containing a

legal description without a street address. At the end of February 2014, the TAC issued a deed to

Mr. Walker. On May 23, 2014, Mr. Walker contacted the principal of Z Bar to inform her that

he was the owner of the real property located at 200 N. Fifth Street, to which she responded by

asserting Z Bar’s ownership and her intention to seek recovery for the substantial improvements

Z Bar had made on the property if necessary.




Wineinger’s arguments and issue raised against Mr. Walker and leave the portion of the trial court’s order concerning Mr. Walker’s cross-claims
undisturbed.
     2
       These undisputed facts were obtained from Mr. Walker’s pleadings since the record contains no other documents to support these facts,
such as a copy of the check he paid to the TAC, the receipt he references in his pleadings, or the property deed.



                                                                    –2–
       On May 30, 2014, Z Bar filed its petition against Mr. Wineinger in his official capacity as

Hunt County Tax Assessor-Collector and against Mr. Walker, asserting declaratory-judgment

claims against both defendants, as well as claims for trespass to try title and, alternatively,

seeking equitable recovery from Mr. Walker for the improvements Z Bar had made to the

property. Mr. Walker filed cross-claims against Mr. Wineinger in his official capacity as Hunt

County Tax Assessor-Collector.       Mr. Wineinger filed his Motion to Dismiss for Lack of

Jurisdiction, and Special Exceptions to Plaintiff’s Petition and Defendant Mr. Walker’s Cross-

Claim, in which Mr. Wineinger asserted he had governmental immunity and that both Z Bar’s

and Mr. Walker’s pleadings had affirmatively negated the existence of jurisdiction. In addition,

Mr. Wineinger requested the trial court dismiss all claims against him without allowing either

party an opportunity to amend, and with prejudice to refiling. The trial court conducted a

hearing on Mr. Wineinger’s motion to dismiss and special exceptions and later entered an order

denying the motion to dismiss for lack of jurisdiction, without ruling on the special exceptions.

Mr. Wineinger timely filed this interlocutory appeal of the trial court’s order.

                                            DISCUSSION

I.     STANDARD OF REVIEW

       A motion to dismiss based upon a lack of jurisdiction is the functional equivalent of a

plea to the jurisdiction; both challenge the trial court’s power to determine the subject matter of a

claim. Novick v. Shervin, 412 S.W.3d 825, 827 (Tex. App.—Dallas 2013, no pet.); see also Tex.

Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 866–67 (Tex. 2001) (treating a party’s

“motion to dismiss for lack of jurisdiction based on sovereign immunity” as a plea to the

jurisdiction for the purpose of review on interlocutory appeal). The existence of subject-matter

jurisdiction is a question of law, and we review an order denying a plea to the jurisdiction de

novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).


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        A plea to the jurisdiction can challenge the sufficiency of the claimant’s pleadings or the

existence of necessary jurisdictional facts. See id. At 226–28. Mr. Wineinger did not adduce

any evidence to support his pleas to the jurisdiction, so the instant case involves a challenge to

the sufficiency of Z Bar’s pleadings. As the claimant, Z Bar bears the burden of pleading facts

that affirmatively demonstrate that governmental immunity has been waived and that the court

has subject-matter jurisdiction. See City of Dallas v. Turley, 316 S.W.3d 762, 767 (Tex. App.—

Dallas 2010, pet. denied). We construe the pleadings in the claimant’s favor and look to the

pleader’s intent. Miranda, 133 S.W.3d at 226. If the pleadings do not contain enough facts to

demonstrate the propriety of jurisdiction but do not affirmatively demonstrate incurable defects

in jurisdiction, the claimant should be afforded the opportunity to amend. Id. at 226–27. This

opportunity shall be given after a court determines that the pleadings are insufficient. Lazarides

v. Farris, 367 S.W.3d 788, 803–04 (Tex. App.—Houston [14th Dist.] 2012, no pet.). But if the

pleadings affirmatively negate the existence of jurisdiction, the plea may be granted without

giving the claimant an opportunity to amend. Miranda, 133 S.W.3d at 227.

II.    APPLICABLE LAW

       Sovereign immunity protects the State from lawsuits for money damages. City of El

Paso v. Heinrich, 284 S.W.3d 366, 369 (Tex. 2009). Political subdivisions of the State are

entitled to such immunity—referred to as governmental immunity—unless it has been waived.

Id. at 369–70. 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. Id. at 370.

       Z Bar sought relief against Mr. Wineinger under the Texas Declaratory Judgments Act,

which is a remedial statute designed to settle and to afford relief from uncertainty and insecurity

with respect to rights, status, and other legal relations. TEX. CIV. PRAC. & REM. CODE ANN.


                                               –4–
§ 37.002(b) (West 2016). The Act provides that a person “whose rights . . . are affected by a

statute, ordinance, contract, or franchise may . . . obtain a declaration of rights . . . thereunder.”

Id. § 37.004(a). It is well settled that private parties cannot circumvent the State’s sovereign

immunity from suit by characterizing a suit for money damages as a declaratory-judgment claim.

Heinrich, 284 S.W.3d at 371. However, the Texas Supreme Court has distinguished permissible

declaratory-judgment suits against state officials.     Id. at 371–72.     Suits for declaratory or

injunctive relief against a state official to compel compliance with statutory or constitutional

provisions are not suits against the State, even if a declaration to that effect compels the payment

of money. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011);

Heinrich, 284 S.W.3d at 372. Such a suit 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. Heinrich, 284 S.W.3d at 372. Ministerial

acts are those where 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

Telephone, L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015). Discretionary acts, on the other

hand, require the exercise of judgment and personal deliberation. Id.

III.   APPLICATION OF LAW TO FACTS

       On appeal, Mr. Wineinger argues the trial court erred in denying his plea to the

jurisdiction because Mr. Wineinger has governmental immunity, Z Bar’s declaratory-judgment

claim does not waive that immunity, and Z Bar failed to establish jurisdiction or prove that Mr.

Wineinger waived his immunity from suit. Z Bar counters that Mr. Wineinger does not have

immunity from suit because its claims pertain to Mr. Wineinger’s performance of a ministerial

duty, namely whether he presented Z Bar with the correct deed to memorialize the transaction. Z

Bar further avers its declaratory-judgment claim does not invoke sovereign or governmental


                                                 –5–
immunity because its petition asked for declarations and a determination of rights relating to the

deeds issued to Z Bar and to Mr. Walker, not money damages.

           In its petition, Z Bar states it sues Mr. Wineinger in his official capacity and seeks a

declaration that Mr. Wineinger failed to perform the ministerial act of issuing a deed for the

property located at 200 N. Fifth Street and that Mr. Wineinger is required to provide the correct

deed to Z Bar.3            The failure to issue a correct deed qualifies as a ministerial act, for which a

governmental employee is not entitled to official immunity. See City of Dallas v. Brooks, 349

S.W.3d 219, 225 (Tex. App.—Dallas 2011, no pet.). Mr. Wineinger argues he is being sued for

actions arising from the performance of an important government function, i.e., the seizure and

selling of property to ensure Hunt County has resources to meet its financial obligations.

However, what Z Bar’s petition alleges is that Mr. Wineinger had a ministerial duty to issue a

deed for the property Z Bar intended to purchase, which Mr. Wineinger failed to perform.

Section 34.05 of the tax code provides that “[t]he presiding officer of a taxing unit selling real

property . . . at a private sale . . . shall execute a deed to the property conveying to the purchaser

the right, title, and interest acquired or held by each taxing unit that was a party to the judgment

foreclosing tax liens on the property.” TEX. TAX CODE ANN. § 34.05. The use of the word

“shall” evidences the mandatory nature of the duty imposed, and the statute provides under what

circumstances Mr. Wineinger was to issue a deed. See Emmett, 459 S.W.3d at 587 (discussing

ministerial duty imposed by section 49.223 of the Texas Water Code). The statute also contains

no indication of whether Mr. Wineinger is to conduct any form of review, deliberation, or

judgment in deciding what information to include on the deed.                                              See id.        Thus, after the




     3
       Z Bar’s petition also sought declarations that Mr. Wineinger’s title to the property at 200 N. Fifth Street passed to Z Bar on the date of Z
Bar’s purchase on December 9, 2013, and that the deed issued by Mr. Wineinger to Z Bar was null and void because it did not affect the property
at 200 N. Fifth Street.



                                                                      –6–
completion of a private sale under section 34.05, Mr. Wineinger had a ministerial duty to execute

a deed conveying the purchased property to Z Bar.

       Finally, we address Mr. Wineinger’s argument that governmental immunity bars Z Bar’s

claims because Z Bar sought what it describes as “money damages.” To support his argument,

Mr. Wineinger points to Z Bar’s counsel’s statements at the hearing that, in the event the court

finds Mr. Walker is the record owner of the property at issue, Z Bar seeks, as alternative relief, a

declaration that Mr. Wineinger is required to disgorge the payment made by Z Bar. In support of

this request for alternative relief, Z Bar’s petition asserts Mr. Wineinger has taken ultra vires

actions, such that Z Bar was not required to plead governmental immunity had been waived

because no immunity applied from the outset. Houston Belt & Terminal Ry. Co. v. City of

Houston, 487 S.W.3d 154, 158 n.1 (Tex. 2016).

       The Supreme Court has indicated that even if an ultra vires claim may be brought, the

remedy may implicate immunity. Heinrich, 284 S.W.3d at 372. A claimant who successfully

proves an ultra vires claim is entitled to prospective injunctive relief, as measured from the date

of injunction. Id. at 376. Generally, retrospective monetary claims are barred by immunity. Id.

At 372.    However, a judgment that involves the payment of money does not necessarily

implicate immunity. Id. It is clear that suits to require state officials to comply with statutory or

constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that

effect compels the payment of money. Id. at 372. To fall within this ultra vires exception, a suit

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. Patel v. Tex. Dep’t Licensing and Regulation, 469 S.W.3d 69, 76 (Tex. 2015)

(citing Heinrich, 284 S.W.2d at 372)).




                                                –7–
       Here, Z Bar seeks a declaration that Mr. Wineinger failed to perform the ministerial act

of issuing a deed for the property located at 200 N. Fifth Street and that Mr. Wineinger was

required to provide the correct deed to Z Bar. In the event the court finds Mr. Walker to be the

record owner of the property located at 200 N. Fifth Street, Z Bar seeks as alternative relief a

declaration that it is entitled to a refund of its purchase price and a judgment ordering Mr.

Wineinger to refund the purchase price to Z Bar. We have little problem concluding Z Bar’s

alternative monetary claim is not barred. That relief would only be implicated in the event that Z

Bar shows that Mr. Wineinger sold the same property twice, a prospect wholly unauthorized by

any discretion grounded in the statutes under which he operates.      We, of course, express no

opinion on the merits of that claim at this stage. Instead, we merely conclude that a claim stated

in the alternative, to return the purchase price to the aggrieved buyer under such circumstances,

would not be barred by official immunity. Id.

       In his reply brief and at oral argument, Mr. Wineinger also argued Z Bar had asserted

claims for money damages in its petition by seeking attorney’s and expert’s fees and costs of

court as part of its declaratory-judgment claim and in its prayer of relief. Mr. Wineinger cited

this Court’s opinion in City of McKinney v. Hank’s Restaurant Group, L.P., 412 S.W.3d 102

(Tex. App.—Dallas 2013, no pet.). In City of McKinney, we concluded a governmental entity’s

request for attorney’s fees constituted an affirmative claim for monetary recovery, thus waiving

immunity from suit for monetary claims to the extent the claims made against the governmental

entity offset its claims. Id. at 119. However, the case here is that a governmental agent is

arguing a private entity’s claim for attorney’s fees somehow is a claim for monetary damages

that invokes governmental immunity. Accordingly, the authority cited by Mr. Wineinger is

inapposite. Further, we have not found any authority to support his position that attorney’s fees

are money damages.

                                                –8–
       Because we conclude Z Bar properly asserted ultra vires claims against Mr. Wineinger

such that no immunity applied to bar the trial court’s jurisdiction and that Z Bar’s petition did not

otherwise implicate immunity, we overrule Mr. Wineinger’s issue on appeal.

                                           CONCLUSION

       The trial court’s order denying Mr. Wineinger’s motion to dismiss for lack of jurisdiction

is affirmed.




                                                      /David J. Schenck/
                                                      DAVID J. SCHENCK
                                                      JUSTICE




151104F.P05




                                                –9–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

RANDY L. WINEINGER, IN HIS                             On Appeal from the 196th Judicial District
CAPACITY AS HUNT COUNTY TAX                            Court, Hunt County, Texas
ASSESSOR-COLLECTOR, Appellant                          Trial Court Cause No. 80,762.
                                                       Opinion delivered by Justice Schenck.
No. 05-15-01104-CV          V.                         Justices Lang-Miers and Brown
                                                       participating.
Z BAR A RANCH, LP AND JAMES
ALLEN WALKER, Appellees

      In accordance with this Court’s opinion of this date, the order of the trial court denying
Mr. Wineinger’s motion to dismiss for lack of jurisdiction is AFFIRMED.

       It is ORDERED that appellee Z BAR A RANCH, LP recover its costs of this appeal
from appellant RANDY L. WINEINGER, IN HIS CAPACITY AS HUNT COUNTY TAX
ASSESSOR-COLLECTOR.


Judgment entered this 22nd day of July, 2016.




                                                –10–
