Glenn Hegar, Comptroller of Public Accounts of the State of Texas The Office of the Comptroller of Public Accounts of the State of Texas Ken Paxton, Attorney General of the State of Texas And the Office of the Attorney General of the State of Texas v. CSG Forte Payments, Inc. F/K/A Forte Payment Systems, Inc. ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00325-CV
Glen Hegar, Comptroller of Public Accounts of the State of Texas, and Ken Paxton,
Attorney General of the State of Texas, Appellants
v.
CSG Forte Payments, Inc. f/k/a Forte Payment Systems, Inc., Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-003520, THE HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
This is an interlocutory appeal from the district court’s order denying the
Comptroller’s plea to the jurisdiction1 in a sales-tax protest case brought under Chapter 112 of the
Tax Code. See Tex. Tax Code §§ 112.051–.060 (authorizing tax challenges after payment under
protest). For the reasons set forth below, we reverse the district court’s order and render judgment
dismissing the claims challenged in the Comptroller’s plea to the jurisdiction.
1
The Comptroller filed a motion to dismiss for lack of jurisdiction, but for convenience
we refer to the motion as a plea to the jurisdiction. See Texas Nat. Res. Conservation Comm’n v.
White, 46 S.W.3d 864, 866–67 (Tex. 2001) (treating “Motion to Dismiss for Lack of Jurisdiction
Based on Sovereign Immunity” as plea to jurisdiction).
BACKGROUND
CSG Forte Payments, Inc. (Forte) provides electronic-payment services to its
customers and charges fees to move money by electronic transfer. After an audit, the Comptroller
concluded that Forte should have collected sales tax on the services it provides to its customers
because, the Comptroller asserts, those services constitute a taxable “data processing service.” See
id. §§ 151.035 (defining “data processing service”), .0101 (including “data process service” in list
of “taxable services”). Accordingly, it assessed additional sales and use taxes totaling
approximately $445,000 for tax periods 2009–2012 and 2013–2016. Forte sought redetermination
of that assessment through the Comptroller’s administrative redetermination process. See id.
§ 111.009 (authorizing petition for redetermination of Comptroller’s assessment).
While the administrative redetermination proceeding was pending, the Fourteenth
Court of Appeals decided, in a case transferred from this Court under the Texas Supreme Court’s
docket-equalization authority, that electronic-payment services are not taxable. See Hegar v.
Checkfree Servs. Corp., No. 14-15-00027-CV, 2016 WL 1576414, *5–6 (Tex. App.—Houston
[14th Dist.] Apr. 19, 2016, no pet.) (mem. op.); see also Tex. Gov’t Code § 73.001 (authorizing
supreme court to transfer appellate cases). Forte asked the Comptroller to reconsider the
assessment in light of the Checkfree decision, but the Comptroller refused. Forte then asked the
Comptroller to dismiss the pending administrative redetermination proceeding so that Forte could
seek judicial review of the assessment, but the Comptroller refused to do so until Forte paid the
assessed taxes under protest, filed a tax protest suit in district court, and then moved to dismiss the
administrative proceeding. See 34 Tex. Admin. Code § 1.39 (2108) (Comptroller of Public
Accounts, Dismissal of Case), repealed and recodified by 43 Tex. Reg. 8126, 8123 (2018) (current
2
version at 34 Tex. Admin. Code § 1.32) (“former Rule 1.39”). After Forte complied, the
Comptroller dismissed the administrative proceeding.
Forte’s suit against the Comptroller challenges the Comptroller’s assessment
against it under Chapter 112 of the Tax Code; asserts a claim under the Administrative Procedure
Act, see generally Tex. Gov’t Code §§ 2001.001–.903; and seeks declaratory relief under the
Uniform Declaratory Judgments Act (UDJA), see generally Tex. Civ. Prac. & Rem. Code
§§ 37.001–.011. Only Forte’s UDJA claims are at issue in this appeal.
In connection with its UDJA claims, Forte requests the following statutory-
construction declarations on the ground that “it is entitled to know, for future periods, whether its
service is subject to the Texas sales and use tax”:
(a) Electronic-payment services are not taxable under Texas Tax Code § 151.0101
[(defining “taxable services” for purposes of sales and use taxes)].
(b) Texas Tax Code § 151.0035 [(defining “data processing service” for purpose of
sales and use taxes)] does not impose Texas sales and use tax on charges for
services that incidentally use computers to store and process data, such as check
approval or authorization when performed by nonprofessionals.
(c) Texas Tax Code § 151.0035 does not require a showing that the taxpayer is
engaged in the provision of a “professional service” to be excluded from the
definition of data processing.
(d) Texas Tax Code § 111.009 [(authorizing taxpayer to seek administrative
redetermination)], and Chapter 112 [(setting forth rules and procedures governing
taxpayer suits)], do not require a taxpayer seeking to terminate an administrative
redetermination hearing to pursue a protest suit in district court to obtain . . . the
Comptroller’s agreement. The taxpayer may unilaterally dismiss its
administrative redetermination hearing by filing a notice of dismissal.
(Collectively, “UDJA statutory-construction claims.”) Forte maintains that it is entitled to these
declarations because the UDJA authorizes a person “whose rights, status, or other legal relations
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are affected by a statute [to] have determined any question of construction or validity arising under
the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.”
Tex. Civ. Prac. & Rem. Code § 37.004.
Also under the UDJA,2 Forte alleges that the Comptroller acted ultra vires by
assessing the additional tax and by not allowing it to unilaterally dismiss the administrative
redetermination proceeding (collectively, “ultra vires claims”). As relief for these claims, Forte
seeks declarations (a) through (d) listed above plus the following additional declarations:
(e) In endeavoring to compel Forte to pay Texas sales and use tax on its
electronic payment service in violation of Texas Tax Code Chapter 151,
Comptroller Hegar acted wrongfully and without legal authority.
(f) Forte is not liable for the Texas sales and use tax, penalty, or interest
assessed by the Comptroller.
(g) [Former Rule] 1.39 allows a taxpayer to file a unilateral Motion to Dismiss
a pending administrative redetermination hearing to change venues.
The Comptroller filed a plea to the jurisdiction challenging Forte’s UDJA statutory-
construction claims and ultra vires claims. The Comptroller argued that sovereign immunity bars
the UDJA statutory-construction claims because the relief sought is redundant to that Forte could
obtain in its Chapter 112 suit and because the UDJA does not waive immunity for claims seeking
a declaration of rights under a statute. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–
22 (Tex. 2011) (per curiam) (observing that “the UDJA does not waive the state’s sovereign
immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law”);
2
Private parties may seek declaratory relief under the UDJA in connection with alleged
ultra vires acts. See, e.g., Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—
Austin 2009, no pet.).
4
Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011) (observing that
“there is no general right to sue a state agency for a declaration of rights” in light of limited scope
of UDJA’s immunity waiver). The Comptroller argued that sovereign immunity bars Forte’s
UDJA ultra vires claims because the relief sought is retrospective and because the issues related
to the administrative proceedings are moot. See City of Dallas v. Albert, 354 S.W.3d 368, 378–79
(Tex. 2011) (“Heinrich clarified that only prospective, not retrospective, relief is available in an
ultra vires claim.” (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009)); Texas
Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 119–20 (Tex. App.—Austin 2007, no pet.)
(holding that sovereign immunity barred ultra vires claim seeking to invalidate previously
executed state contract because that remedy was retrospective in nature). Finally, the Comptroller
argued that Forte’s UDJA ultra vires claims relating to a taxpayer’s ability to dismiss a pending
administrative redetermination hearing—i.e., declarations (d) and (g)—were moot because Forte’s
redetermination hearing had already been dismissed. After a hearing, the district court denied the
Comptroller’s motion, and this interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(8) (authorizing interlocutory appeal from order granting or denying plea to the
jurisdiction by a governmental unit).
Analysis
The Comptroller raises six challenges to the district court’s order denying its plea
to the jurisdiction: (1) the redundant-remedies doctrine bars Forte’s UDJA statutory-construction
claims; (2) sovereign immunity bars Forte’s UDJA statutory-construction claims because the
UDJA does not waive sovereign immunity for statutory-construction claims; (3) Forte’s UDJA
statutory-construction claims regarding its future taxability are not ripe; (4) Forte’s request for
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attorney fees under the UDJA is barred by sovereign immunity; (5) Forte’s UDJA ultra vires claims
are barred by sovereign immunity because they seek retrospective relief; (6) Forte’s UDJA ultra
vires claims related to the administrative process are moot because the hearing has been dismissed.
Standard of review
“A plea to the jurisdiction challenges the court’s authority to decide a case.”
Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012). We review a plea challenging
the trial court’s subject-matter jurisdiction de novo, affording no deference to the trial court’s
ruling. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).
Analysis of whether this authority exists begins with the plaintiff’s live pleadings and continues
with evidence the parties presented below that is relevant to the jurisdictional issues. Id. “When,
as here, the facts relevant to jurisdiction are undisputed, the court should make the jurisdictional
determination as a matter of law based solely on those undisputed facts.” Machete’s Chop Shop,
Inc. v. Texas Film Comm’n, 483 S.W.3d 272, 278 (Tex. App.—Austin 2016, no pet.). If the
pleadings lack facts sufficient to affirmatively demonstrate jurisdiction, but also do not
demonstrate incurable defects in jurisdiction, then the issue is one of pleading sufficiency and the
plaintiff must be allowed the opportunity to amend. Miranda, 133 S.W.3d at 226–27. If the
pleadings or undisputed facts affirmatively negate jurisdiction, then a plea to the jurisdiction may
be granted without allowing the plaintiff an opportunity to amend. Id. at 227; Gattis v. Duty, 349
S.W.3d 193, 209 (Tex. App.—Austin 2011, no pet.) (reversing and rendering judgment dismissing
claims for want of jurisdiction because defects are “a function of pled or undisputed facts that
affirmatively negate jurisdiction”).
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Forte’s UDJA statutory-construction claims
The Comptroller asserts on appeal that the district court erred in denying its plea to
the jurisdiction as to Forte’s UDJA statutory-construction claims because the UDJA does not
waive sovereign immunity for declaratory relief requesting construction of a statute. We agree.
Sovereign immunity is the “well-established doctrine ‘that no state can be sued in
her own courts without her consent, and then only in the manner indicated by that consent.’”
Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015) (quoting Tooke v. City of
Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). The Legislature may waive immunity by statute, but
it must do so by clear and unambiguous language. Tex. Gov’t Code § 311.034; Tooke, 197 S.W.3d
at 332–33.
As Forte asserts, the UDJA generally authorizes claimants “whose rights, status, or
other legal relations are affected by a statute” to “have determined any question of construction or
validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal
relations thereunder.” Tex. Civ. Prac. & Rem. Code § 37.004(a). But this authorization is not a
waiver of sovereign immunity to entertain such a claim—the UDJA generally “does not enlarge
the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a
court’s jurisdiction.’” Sefzik, 355 S.W.3d at 621–22 (adding that “we have consistently stated”
that principle (quoting Sawyer Tr., 354 S.W.3d at 388)). As the Texas Supreme Court has clarified,
the UDJA’s sole feature that can affect a trial court’s jurisdiction to entertain a substantive claim
is the statute’s implied limited waiver of sovereign immunity for claims challenging the validity
of ordinances or statutes. See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d
628, 634–35 (Tex. 2010) (citing Tex. Civ. Prac. & Rem. Code § 37.006(b); Texas Educ. Agency
v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)). It has squarely repudiated the once widespread
7
notion that the UDJA confers some broader right to sue the government to obtain “statutory
construction” or a “declaration of rights.” See Sefzik, 355 S.W.3d at 621–22 (“The UDJA does
not waive the state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights
under a statute or other law.”); Sawyer Tr., 354 S.W.3d at 388 (“there is no general right to sue a
state agency for a declaration of rights” in light of limited scope of UDJA’s immunity waiver).
Forte has not asserted a challenge to the validity of a statute. Consequently, the
UDJA itself ultimately has no bearing on whether Forte’s claims invoke the district court’s
jurisdiction. We must look instead to the claims’ underlying substance in order to determine
whether the district court has jurisdiction to entertain them. See, e.g., Sawyer Tr., 354 S.W.3d at
389 (“[t]he central test for determining jurisdiction” looks to whether “the ‘real substance’ of the
plaintiffs’ claims” is within court’s jurisdiction (citing Dallas Cnty. Mental Health & Retardation
v. Bossley, 968 S.W.2d 339, 343–44 (Tex. 1998))).
By suing for declarations that its form of business is not subject to Texas sales and
use taxes, Forte is, in substance, asserting a taxpayer challenge to the Comptroller’s tax
assessment. More specifically, given that Forte explicitly limits its UDJA statutory-construction
claims to possible future tax assessments—Forte’s petition states, with respect to these claims, that
it “is entitled to declaratory relief under the UDJA for future periods” (emphasis added)—Forte is
asserting a taxpayer challenge to possible future tax assessments.3 Assuming that these claims are
ripe, the Legislature has not waived immunity for such a suit.
3
The Comptroller asserts in his first issue that because the relief sought under Forte’s
UDJA statutory-construction claims is identical to the relief it seeks under its Chapter 112 protest
claim, the UDJA statutory-construction claims are barred under the redundant-remedies doctrine.
See Patel v. Texas Dep’t of Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015) (explaining that
redundant-remedies doctrine prohibits courts from entertaining UDJA action when same claim
could be pursued through different channels) (citing Texas Mun. Power Agency v. Public Util.
8
The Legislature has waived the State’s sovereign immunity for only three types of
tax challenges—protests, injunctions, and refunds. EBS Sols., Inc. v. Hegar, 601 S.W.3d 744,
749–50 (Tex. 2020) (citing Tex. Tax Code §§ 112.001, .051, .101, .108); In re Nestle USA, Inc.,
359 S.W.3d 207, 209 (Tex. 2012) (orig. proceeding) (“Chapter 112 allows no other actions to
challenge or seek refunds of the taxes to which it applies.”). None of these waivers contemplates
the challenge to possible future assessments that Forte asserts here. To the contrary, each waiver
is predicated on the existence of an assessment or pending assessment. For example, protest suits
are authorized to recover a tax “required to be paid to the state,” Tex. Tax Code §§ 151.051(a),
.052(a), and the taxpayer in a protest suit must produce records relating to “the amount of the tax,
penalty, or interest that has been assessed or collected or will be refunded,” id. § 151.052(d).
Refund suits are authorized “to recover an amount of tax, penalty, or interest” that has already
been collected, id. § 112.151(a), and a taxpayer bringing a refund suit must also produce records
relating to the amounts “assessed or collected or [that] will be refunded,” id. § 112.151(f).
Relatedly, for each of these kinds of tax suits, the taxpayer normally must meet
some prepayment requirement before bringing the suit. EBS, 601 S.W.3d at 750; see Tex. Tax
Code §§ 112.051 (requiring taxpayer in protest suit to first pay the amount allegedly owed in tax
and fees), .101. (same for refund suit), .101(a) (requiring taxpayer in injunction suit to either pay
amount allegedly owed or file bond covering the amount allegedly owed). These prerequisites are
Comm’n, 253 S.W.3d 184, 200 (Tex. 2007)). We agree that the relief requested would be
redundant to that sought in the Chapter 112 claims if it were directed to the existing assessment,
but Forte’s UDJA statutory-construction claims are explicitly limited to the possibility of future
assessments. For that reason, these claims go beyond resolution of its pending Chapter 112 claims
and, accordingly, the Chapter 112 claim would not provide a redundant remedy. See Patel, 469
S.W.3d at 79 (holding that redundant-remedies doctrine did not apply because the declaration
sought went beyond reversal of an agency order under APA).
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jurisdictional requirements to challenging a tax assessment. EBS, 601 S.W.3d at 750 (citing In re
Nestle USA, Inc., 387 S.W.3d 610, 616 (Tex. 2012) (orig. proceeding); In re Nestle, 359 S.W.3d
at 208)). Forte could not meet these jurisdictional prerequisites because there is no existing amount
allegedly owed for possible future assessments. Nor could Forte use the Tax Code’s exception to
the prepayment requirement to avoid these jurisdictional prerequisites because the exception
likewise assumes the existence of an assessment or alleged amount owed. See Tex. Tax Code
§ 112.108 (carving out exception to prepayment requirement where taxpayer “file[s] an oath of
inability to pay the tax, penalties, and interest due” (emphasis added)).
For these reasons, we conclude that the Tax Code’s waiver of sovereign immunity
for taxpayer challenges does not provide the district court with jurisdiction over Forte’s UDJA
statutory-construction claims. See Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex. 1980)
(holding that statutory predecessor providing for protest-payment suit “created a right not existing
at common law and prescribed a remedy to enforce the right”; “[t]hus, the courts may act only in
the manner provided by the statute which created the right”); see also In re Nestle, 359 S.W.3d at
212 (“Because these taxpayer rights of action are created by statute, waiving the State’s immunity
from suit, ‘the courts may act only in the manner provided by the statutes which created the right.’”
(quoting Dan Ingle, Inc. v. Bullock, 578 S.W.2d 193, 194 (Tex. App.—Austin 1979, writ ref’d))).
Accordingly, the district court erred in denying the Comptroller’s plea to the jurisdiction as to
Forte’s UDJA statutory-construction claims. Having so concluded, we need not consider the
Comptroller’s remaining jurisdictional challenges to those claims. See Tex. R. App. P. 47.1.
Instead, we turn to the Comptroller’s challenges to Forte’s ultra vires claims.
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Forte’s UDJA ultra vires claims
The Texas Supreme Court “has long recognized that [sovereign] immunity does not
bar claims alleging that a government officer acted ultra vires, or without legal authority, in
carrying out his duties.” Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,
157–58 (Tex. 2016). “‘To fall within this ultra vires exception,’ however, ‘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.’”
Id. at 161 (quoting Heinrich, 284 S.W.3d at 372). In its live petition, Forte alleges that the
Comptroller acted ultra vires:
• by assessing Texas sales and use tax on Forte’s electronic payment service when it
is not taxable under Texas Tax Code Chapter 151, as construed by the Fourteenth
Court of Appeals in CheckFree;
• in enforcing an illegal data-processing rule that imposes tax in excess of the
governing statute, as well as in denying Forte’s unilateral Motion to Dismiss under
[former] Rule 1.39; and
• by misinterpreting the limitations on his taxing authority and/or acting without
reference to or in conflict with the law enabling him to act.
Forte brings its ultra vires claims under the UDJA and, as relief, seeks the seven declarations
described above that would, stated generally, establish that its form of business is not subject to
Texas sales and use taxes, that it is not liable for the sales-tax assessment imposed on it by the
Comptroller, and that, under the Tax Code and former Rule 1.39, a taxpayer may unilaterally
dismiss a redetermination hearing by filing a notice of dismissal. See Texas Dep’t of Pub. Safety
v. Salazar, 304 S.W.3d 896, 906 (Tex. App.—Austin 2009, no pet.). (noting that private parties
11
may seek declaratory relief under UDJA in connection with alleged ultra vires act). On appeal,
the Comptroller challenges the district court’s jurisdiction over Forte’s ultra vires claims.
Comptroller’s authority related to dismissal of the redetermination hearing
As noted above, Forte asked the Comptroller to dismiss the pending administrative
redetermination hearing so that Forte could seek judicial review of the assessment under
subsections 112.051 and 112.052 of the Tax Code. See Tex. Tax Code §§ 112.051–.052 (waiving
sovereign immunity for tax protest suit if taxpayer submits a written protest and pays the amount
due under protest before filing suit). The Comptroller refused to dismiss the proceeding until Forte
paid the assessed taxes under protest, filed a tax protest suit in district court, and then moved again
to dismiss the administrative proceeding. See id.; 34 Tex. Admin. Code § 1.39 (2018) (requiring
motion to dismiss administrative proceeding and including as ground for dismissal of
redetermination that “a taxpayer’s claims for the same tax and the same period are pending in a
court”). After Forte complied, the Comptroller dismissed the administrative proceeding.
In its suit for judicial review, Forte alleges that the Comptroller acted ultra vires
when it refused to allow Forte to unilaterally dismiss the administrative proceeding and, as relief,
asks for declarations—(d) and (g) listed above—that the Tax Code does not require the
Comptroller’s agreement to dismiss a case and, relatedly, that former Rule 1.39 allows a taxpayer
to unilaterally dismiss a pending administrative redetermination. On appeal, the Comptroller
asserts that these ultra vires claims are moot because the administrative redetermination
proceeding has been dismissed. We agree.
A court lacks jurisdiction to decide a case that becomes moot during the pendency
of the litigation. Heckman, 369 S.W.3d at 161 (citing National Collegiate Athletic Ass’n v. Jones,
1 S.W.3d 83, 86 (Tex. 1999)). A case becomes moot if, since the time of filing, there has ceased
12
to exist a justiciable controversy between the parties—that is, if the issues presented are no longer
“live” or if the parties lack a legally cognizable interest in the outcome. Id. (citing VE Corp. v.
Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam)). “Put simply, a case is moot when
the court’s action on the merits cannot affect the parties’ rights or interests.” Id.
Forte does not dispute that its requested declarations are moot—the Comptroller
dismissed the administrative redetermination proceeding after Forte met the Comptroller’s
requirements, including the requirement that Forte file the underlying suit. Instead, Forte asks us
to apply the “capable of repetition yet evading review” exception to the mootness doctrine because
“a taxpayer would never be able to challenge the Comptroller’s improper dismissal conduct in
district court because it must first dismiss its administrative claims before it can proceed with its
protest suit.” We decline to do so in this case.
The “capable of repetition yet evading review” exception to mootness “applies only
in rare circumstances.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). To invoke the
exception, a plaintiff must show: (1) the challenged action was too short in duration to be litigated
fully before the action ceased or expired; and (2) a reasonable expectation exists that the same
complaining party will be subjected to the same action again. Id. Forte has not met its burden to
show the exception applies. First, it has not shown, or even alleged, that it has a reasonable
expectation that it will be subjected to the same action again. See Heckman, 369 S.W.3d at 165
(noting that plaintiff must show that “the claim is capable of repetition as to him”). Moreover, it
has not shown how the challenged action—i.e., the Comptroller’s refusal to allow Forte to
unilaterally dismiss its administrative hearing—is of such a short duration that it could not be
litigated fully before the action ceased or expired. We also note that, to the extent that it is
complaining about the Comptroller’s construction and application of former Rule 1.39, Forte has
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not explained why it could not challenge that rule under the Administrative Procedure Act, see
Tex. Gov’t Code § 2001.038 (waiving sovereign immunity for declaratory action challenging the
“validity or applicability of a rule . . . if it is alleged that the rule or its threatened application
interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the
plaintiff”). Accordingly, we hold that Forte’s ultra vires claims related to the administrative
proceeding are moot and, thus, the district court lacks jurisdiction over them.
Comptroller’s assessment of taxes
The Comptroller asserts that the district court also lacks jurisdiction over Forte’s
remaining ultra vires claims, which challenge the Comptroller’s authority to assess sales and use
tax on Forte’s electronic-payment service. These claims are brought under the UDJA and seek
declarations (a), (b), (c), (e), and (f) described above.
Assuming without deciding that Forte has properly pleaded these ultra vires claims
against the Comptroller, we nevertheless conclude that the district court lacks jurisdiction to hear
them because of the redundant-remedies doctrine. “Under the redundant remedies doctrine, courts
will not entertain an action brought under the UDJA when the same claim could be pursued through
different channels.” See Patel v. Texas Dep’t of Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015)
(citing Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 200 (Tex. 2007)).
“The focus of the doctrine is on the initiation of the case, that is, whether the Legislature created a
statutory waiver of sovereign immunity that permits the parties to raise their claims through some
avenue other than the UDJA.” Id.
The Legislature has created an explicit waiver of sovereign immunity for challenges
to the Comptroller’s assessment of taxes. See EBS, 601 S.W.3d at 749–50 (noting that Legislature
has waived the State’s sovereign immunity for only three types of tax challenges—protests,
14
injunctions, and refunds (citing Tex. Tax Code §§ 112.001, .051, .101, .108)). If Forte were to
prevail on these ultra vires claims, its relief would be declarations establishing that it is not liable
for the tax assessment imposed by the Comptroller because its form of business is not subject to
Texas sales and use taxes. This is essentially the same relief that Forte will obtain if it prevails in
its tax-protest suit—i.e., a judgment against the Comptroller for recovery of the taxes assessed
against it because Forte’s form of business is not subject to Texas sales and use taxes. Therefore,
Forte already has a statutory channel by which to obtain the relief it seeks, and any remedies it
could obtain through an ultra vires suit against the Comptroller would be redundant. Therefore,
the district court lacks jurisdiction over Forte’s ultra vires claims related to the Comptroller’s
assessment of taxes. See McLane Co. v. Texas Alcoholic Beverage Comm’n, 514 S.W.3d 871, 877
(Tex. App.—Austin 2017, pet. denied) (holding that trial court lacked jurisdiction over ultra vires
claims because of redundant-remedies doctrine).
CONCLUSION
Because the district court lacks subject-matter jurisdiction over Forte’s UDJA
statutory-construction claims and ultra vires claims, we reverse the district court’s order denying
the Comptroller’s plea to the jurisdiction and render judgment dismissing Forte’s UDJA statutory-
construction claims and ultra vires claims.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Triana and Smith
Reversed and Rendered
Filed: December 9, 2020
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