* John T. Boyd, Chi ef Justi ce (Ret.), Seventh Court of Ap peals, sitting by

assignment

. NO. 07-02-0189 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E OCTOBER 11, 2002

______________________________ THE S TATE O F TEXA S, E T AL., APP ELLA NTS V. JIMMY GLEN RIEMER, ET AL., APPELL EES

_________________________________ FROM THE 84 TH DISTRICT COURT OF HUTCHINSON CO UNTY; NO. 30,441; HON ORABLEJOHN T. FORB IS, JUDG E

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. *
The State of Te xa s and David Dew hurst, in his official capacity as the Com missioner

of t he G ene ral Lan d Office (Com m issioner) pre sent th is interlocutory1 SeeTex. Civ. P rac. & Rem . Code Ann. §51.014( a)(8) (Vernon S upp. 200 2).
2 See discussion of

historical facts in State v. B rainard, 96 8 S.W.2d 403 (Tex.A pp.-- Am arillo1998), aff’d in p art and r ev’d i n part , 12 S.W.3d 6 ( Tex. 1999), regarding the controversy between t he State and the landowners adjoining the river following the closing of the Sanford D am on the Canadian River in 1965.

3 Riem er, Jr. died dur ing t he p end enc y of this act ion. Hisson, Jim my Glen Riem er, indiv idua llyand as Ind epe nde nt E xe cutor o f his fat her’sestate , was s ubs tit uted as the party for his deceased father. This interest will be referred to as the Riem er interest. 2 appeal 1 of the trial court’s denial of the State’s and Com missioner’s pleas to the jurisdiction based on sovereign imm unityto claims and causes presented by Jimmy Glen Ri em er, in dividuall y and as Independent Executor of the Estate of Hugo A. Riem er, Jr., Deceased (Riemer), R ichard Coon, Jr., June M eetze Coon Trust, and the Johnson Borger Ranch Partnership s, individuall y and as class representat ives (other landowners). B ased upon therat iona le exp re sse d h er ei n, we affirm and remand in part and reverse and render in part.
W hile Brainard v. State, 12 S.W.3d 6 (Tex. 1999) 2 initiated by Brainard and other landow ners in Roberts County to establish the boundary of the C anadian River pursuant to Senate Concurrent Resolution 165, 71 stLeg., R.S., 1989Tex. Gen. Laws 5909 (SCR 165) was pen ding, on Decem ber 19, 1993, the State filed suit against Hugo A. R ieme r, Jr. 3 seeking to recover possess ion of land, rent for unlawful use of land, and dam ages for the
un l aw fu l us e, oc cu pa ti on an d a dv er se cl ai ms to state-ow ned lands, being the surface of the state-ow ned riverbed of the Canadi an Riv er, South of the South ern gradi

ent boun dary4 In their fact statem ent, theStateand Com m iss ione r as ser t th at t he S tate’sclai m against Riemer, J r. was directed to the surface only of the property. By their brief, appellees concede that the f act statem ent is correct. The State di d n ot as se rt an y c l ai ms to Sections 30 and 31, bu tits claims w ere limited to the “state-ow ned” riverbed south of the southern gradient boundary along Sec tions 30 and 31.
5 The orig inal coun ter

claim w as f iled afte r th e de cis ion in Brai nard , 12 S.W.3d at 6. It did not include Section 29, Block 47, H &TC Ry. C o. Survey, H utchinson County.

6 Huber is not a party to this interlocutory appeal. 3 along Sections 30 and 31, in Block 47, H&TC Ry. Co. Survey i n Hutchinson Cou nty. 4 In response, Riemer filed a plea in abatem entcontending the State’s suit should be abated unt il similar questions presented i n the Brainar d case were finally adjudicated, followed by his first am ended or iginal answer filed in Novem ber 1996. The record reflects that n o action was taken until October 26, 1999, w hen Suggestion of Death of Hug o A. R ieme r, Jr. was f iled and Riemer filed a second am ended answer and a n o rigin al co unterc laim alle ging gene rall y that the State had trespa ssed on the surface an d mineral estates. 5 Following another period of inactivity, on April 24, 2000, Riem er file d his fir st amend ed counterclaim and a third party petition by which he m ade J.M. H uber Corporation a defendant

seeking reco very on six counts agai nstthe State and H uber for trespass on the m iner

al e states of Sec

tions 29, 30, and 31. A fter Huber filed its answer and
co un te rc l ai m, 6 Riemer filed his second am ended counterclaim, amend ed third p arty pet ition and orig inal c lassact ion p etit ion, and on J uly 12, 2000, the State filed its notice7 Coon and Coon Trust claim ed interests in sections 75, 76, 77, 78, 79, 80, 81, 82,

and 83, Block 46, H&TC Ry. Co. Survey, Hutch inson County. 4 of no n- su it of

it s cl ai ms wit ho ut pr eju di ce . T he re afte r, as ma te ri al he re , th e r ec or d sh ows that:

• On October 29, 2001, the State filed its plea to the j urisdiction as to the counterclaims, and subjec t thereto, its special except ions and answer.

• On Dec ember 4, 2001, Riem er, and intervenors Richard Coon, Jr., June Me etz e Coon Trust and Johns on Borger Ranch P artnerships filed the ir Fo urt h A m end ed C oun ter cla im, Se cond A m ended Third Party Pet iti on and First Am ended Class Action Pet ition in which, among other things, for the first tim e, David Dew hurst, in his capacity as Co mmi ssi on er of

th e G en er al La nd Off ic e o f th e St at e o f T exa s was m ade a party.

• On Jan uar

y 15 , 20 02, theCom m is si oner filed his plea to the jurisdiction.

• On Ma rch 6, 2 002 , th e da y th e tr ial c our t he ld the hearing on the two mot ions fo r d i smi ss al , R i eme r f i l ed hi s f i ft h a men de d c ou nt er cl ai m, third am end ed party petition, and second am ended class action petition. Although the State’s origi nal peti tion di d not seek any rel ief as to Sect ion 29, by h is
co un te rc l ai m, Riemer s ought relief as to Sections 29 , 30, and 31; the oth er landow ners Coon and Coon Trust sought relief as to nine sections 7 and the Johnson P artnerships8 Johnson Partnership claimed rights in sections 66, 67, 71, 72, 73, 74, 75, 76, 77,

78, and 79, Block 46, H&TC Ry. Co. Survey, Hutchinson County.

9 In Brai nard , the landowners s urvey, prepared by W.C. W ilson, Jr., was based on accretion caused by the dam and was accepted by th e t ri al co ur t a nd th e T ex as Su pr eme Co urt. According to that s urvey, the riverbed is approxim ately 20 to 50 feet w ide. 1 2 S.W.3d at 12. Accretion is the p rocess of inc reasing real estate by gradual and im percep tibledisposi tion by w aterof solid material, through the operation of nat ural caus es so as to cause that to become dry land th at was once before covered by w ater

. Id . at 17. 5 sought rel ief as to el even sections, 8 all tracts being in Hutchinson County and bordering the Canadian River down stream from the Sanford Dam

. In Brai nard , before the trial court ruled on the State’ s m otion for sum mary judgm ent, itallowed the landowne rs time to secure a gradient boundary survey to “acc ount for the present, i.e. , post-dam , conditions on the Canadian River.” 12 S.W.3d at 10. Unlike the titleclaims of Lain pr esented in State v. Lain, 162 Tex. 549, 349 S. W .2d 579, 581 (196 1), the title claims of Riem er and the other landowners are not based on a survey account ing for “present” post-damconditions or a regular chain of conveyances previously adj udged to be goo d, b ut in ste ad, w itho ut p lead ing s pec ific boundaries by survey or otherwise, or the effective dates of th eir a llege d acquis ition s, t hey clai m titl e toland for m erly loca ted in the Canadian River ri verbed b y accretion. 9 Althoug h Riem er and th e other lan dow ners assert similar but not identical claims to the su rface of the rive rbe d, a s ind icated b y th eir pleadings, their primary focus is directed to t he o il and gas production fromthe riverbed byHuber pursuant to leases from the State, s ome of which m ay have been e xecuted10 Reimer and the other

landowners having filed their fifth am end ed coun ter claim on the dayof

th e h ea ri ng , t he St at e d i d n ot ha ve th e o pp or tu ni ty to ch al l en ge th e c l ai ms as set out in the pleadings as to form or substance. 6 beforeth e c on st ru ct i on of th e S an fo rd Da m. As su mmar i ze d b el ow , t he i r c ou nt er cl ai ms 10 include claim s for:
Reimer Claims Other Land owner Clai ms Conversion Declaratory Relief Action for Accoun ting Conversion Action to Q uiet

Title Accounting Violation of Constitutional Rights Money Had a nd Received Trespass Unjust Enrichm ent Fraud Trespass Violation of Constitutional Rights Fraud After he ar i ng th e S ta te ’s an d C ommi ss i on er ’s mo tions to dismiss base d on sovereign imm unity, the trial court denied them. Presenting five issues, the S tate and Com missioner question:
No. 1. W hether, by filing suit against Hugo A. Riem er, Jr., for trespass to the surface estateof S ect ions30 a nd 3 1, t he S tate an d th e Co m m iss io n er waived sovereign imm unity as to appellees Richard Coon, Jr., June Meetze Coon Trust and the Johnson Borge r Ranch Partnerships’(individually and as class representatives ) intervention cause of act ion r elat in g to the surface and mineral estate s of the Disputed Pro perties?
No. 2. W hether, by fi ling suit agai nstHugo A. Riem er, Jr., for trespass to the surface estate of sections 30 and 31, the Stateand Com missioner w aived sovereign imm unity as to appellee Jimm y Glen Riemer (individually and as Independent

Executor of the E state of Hugo A. Riem er, Jr.), co un te r- cl ai ms relating to the surface and m ineral estates of Section 29?7

No. 3. Whether, by filing suit agains t Hugo A. Riem er, Jr. for trespass to the surface estate of S ections 30 and 31, the State and Com missioner w aived sovereign imm unity as to appellee Jimm y Glen R i eme r’ s c ou nt er -c l ai ms relating to the mineral estates of Sections 30 and 31?
No. 4. Whether appell ees have pleaded a claim for constitutional taking of private property for public use under Article I, Sec tion 17 of th e T exa s Constitution, for w hich they m ay seek

re co very from the State and t he Com missioner? and
No. 5. Whether, absent a waiver of sovereign im m unity, ap pellees Richa rd Coon, Jr., Jun e Me etze Coon Trust, an d the Johnson Borger Ranch Partnerships ma y obtain a declaratory judgm ent binding on the State and the Comm ission er that establ ishes the bou ndary of the di sputed proper ties?
The State and Comm ission er request that we reverse the order of M arch 22, 2002, and render a decision dismissing

• all of intervenors’ causes of action for declaratory relief, conversion, accounting, money ha d and recei ved, unjust enrichment, trespass, violation of class mem bers’ constitutional rights, and fraud;

• Riemer’s

taking claim; and

• Riemer’s causes of action fo r conversi on, act ion for an accounting, action to q uiet

titl e , tre spass, and fraud insofar as they relate to Section 29 or the m ineral estates of Sections 30 and 31 b ecause the Di str ict Court lacks subject jurisdi ction to hear and decide such claims. They further request that:

• we reman d to the District Court Riem er’s non-taking claims insofar as theyrela te to th e su rfa ce e sta te o nly in Sections 30 and 31 for further proceedings in the case; and11 The Court noted that the differen ces in the par ties’ surveys are based on

conflicting legal theories that m ust be resolved by the C ourt. Brai nard , 12 S.W.3d at 14.
8 • theyrecove r th eir costs of this app eal toget her with such ot her and further relief as we m ay find just and proper upon final hearing of the captioned cause. Boundary Dispute

Accretion-Artificial Causation
In Brai nard , 12 S. W.3d at

6, t he S tate’sclai m was ground ed upon a survey that w as premised on the legal position that any change in the boundary of theriver th at was caused by the construct ion of the Sanford Dam did not divest the State of ti tle to the riverbed as it existed before t he construction of the damwhile the landowners claimed that the artificial change theory was w rong. 11 In rejec ting the State’s pos ition, the Court held:
cha nges brought about o r infl uenced by an arti ficia l structure , su ch as a da m, m ust

be cons ider

ed in m ark ing t he g rad ie nt bounda ry of a river , so long as the riparian owner does not cause or cont ribute to the artificial influence. W e therefore con clude that a sur vey of the disput ed area must account for present, i.e. , post- dam conditionson the C anadian R iver.
Id

. at10. Here also, the State’s or igin al clai m w as based on a survey of the riverbed which did not recognize the changes in the course of the river caused by the construction of the da m, howev er after the decision in Brai nard , the State filed a nonsuit. A s noted i n Brai nard , accre tion is “the process of increasing real estate by the gradual and9

im percep tibledisposition by water of solid material through the operation of natural causes
so as to cause that

to becom e dry land that was once before co vered by water.” Id. at 17. The resulti ng boundari es and effecti ve dates for these pur pose s h ave not yet been determ ined. Sovereign Im munity & Standard of Rev iew
In the recent case of

TexasNatural Resource Conserv . v. IT-Davy, 74S.W.3d 849 (T ex. 2002), the Court conf irmed the appropriat e standard for review a nd reaffirmed several general principles of the doctrine of sovereign imm unity. The Court held that because the question of su bject-m atter jurisdiction is a question of law, we review a trial court’s ord er d eny ing aj uris dict iona l ple a base d on soverei gn imm unity de novo. Id . at 855. The Court also restated several general rules, including:

• Sovereign imm uni ty protects the S tate from lawsuits for m oney damag es and encom passes tw o principles: imm unity from suit and imm unity from lia bili ty.

• Imm unity fro m suit bar s a suit against t he Sta te unlessthe Leg islature expressly cons ents to the suit.

• Imm unity from liabil ity protects the S tate from mo ney judgm ents even if the Legislature has expressly given conse nt to sue.

• A p arty sui ng the State m ust establish the State’s consent to suit, otherwise sovereign imm unity from suit defeats a trial court’s subj ectmat ter jurisdiction.10

• A suit aga inst a s tate of

fic i al in his/ her

off icial cap acit

y isa s uit against the State.
Id. 853-55. Restating that only the Legislaturecan waive sover eign im m unity, th e Court concluded that all owing other gover nmental entiti es to waive imm unityby con duc t w ould be inconsistent with the ex isting legisl ative schem e and declined to recognize a waiver by conduct exception in a breach of contract suit against the State. I d at 858 . Sovereign imm unity also applies to the Com missioner in his official capacity because it am ounts to
an action against the State which cannot be prosecuted without consent of theLegislature. Liberty Mu t. I ns. Co. v. Sh arp , 87 4 S .W.2d 7 36, 738(Te x. Ap p.- -Au stin 199 4, writ denied).
Because the m ultiple claim s of th e diversepart ies are not entirely comm on and appell ees’ brie f does n ot addr ess the f ive i ssues ofthe St ate and the Com missioner as required by Rule 38.2(a)(1) & (2) of the Texas Rulesof App el la te Pro ce du re , we review the issues based on legal topics and partie s rather than sequ ential order. W e comm ence our ana lys is by

con side ring thecon stit utio nal “ tak ing” clai m s of Rie m er a nd the other landowners.
Co ns ti tu ti on al “T ak i ng ” C l ai ms Byissue four, the State and Com missioner contend the trial court erred in denying the ir pleas to the j urisdiction against Riem er a nd Intervenors’ taking claim s for alleged violation of const itut iona l ri ghts un der Art icl e I, Se ction 17, Texas C onstitution. W e11

disagree. Conceding that the doct rine of sovereign imm unity does not shield the State from an action for com pensation un de r t he ta ki ng s cl au se , Ge ne ra l S er vi ce s v. Li tt le -T ex. Insulation, 39 S. W .3 d 5 91 , 5 98 (T ex . 2 00 1) , t he St at e a nd Co mm is sioner argue that Riemer and theother land own ers did not plead a claim for const itutional taking of private propertyfor public use. By the f ifth am ended coun tercl aim, third am ended third party p etition, and second am ended class action petition, in addition to the claims m enti one d be lo w, Riemer alleged an improper tak ing of his oil and gas, that he had not consented to the taking of his hydrocarbons, and
t he State’s p urported lease to Huber w as for public use in that the royalty proceeds that the Statereceived theref r om was put in the State’s general fund for public use. By the sam e pleadings, the remaining property ow ners alleged:
Defendants intentionally performed various acts that resulted in an improper taking of Class Members’ oil and gas. Cl ass mem bers have notconsented to the taking of the hydrocarbons, and the S tate’s purported lease to Huber wasfor publi c use in that the r oyalty proce e ds that the State received therefrom was put

in the State’s general fund f or public use.
A pleading asserting an unlawful taking of private property m ust allege that (1) the State intentionally performed certain acts(2) that resulted in a “taking” of property (3) for pub licuse. See General Service s, 39 S.W.3d at 598; State v. Hale, 136 Tex . 29, 146 S.W.2d 731, 73 6 (1941); Kerr v . Texas Dep t. of Tra nsp., 4 5 S.W.3d 248, 2 50 (Tex .App.
-- Houston [1 stDist.] 2001, no pet.); a nd City of Abilene v. Sm ithwick, 721 S. W .2d 949, 95112

(Tex.App.--E astland 1986, writ ref’d n.r.e. ). Fo r p ur po se s o f t hi s a pp ea l , we mus t p re su me that the allegations in pleadings are true and construe them in favor of the pleader. See Kerr , 45 S.W.3d at 250

. Although the landowners ’ pleadings do not describe the property bysurvey or otherwise, do not state whether the la ndowners claimtitle by docum ent, accretion, or both, and the e ffective dates of their acquisitions, even though the allegations ma y be subj ect to special excep tions, questions notpr es en te d f orou r r ev ie w, we con clud e th e alle gat ionsarem inim ally sufficientfor purposes of satisfying the pleading requirements as

discussed in General Servi ces , 39 S.W.3d at 598. Moreover, w here, as here, the nature of the claim affec

ting jurisdiction is obvious to the court, and a ques tion of the sufficiency of the pleading is pres ent ed, bef ore dismissing the clai m, the party should be gi ven an opportun ity to repl ead. Bybee v. Fireman’s Fund Ins. Co, 160Tex. 429, 33 1 S.W.2d 910, 917 (1960); Harris CountyFlood Control Dist. v. Adam , 56 S.W.3d 665, 670 (Tex.App.--Ho uston [1 4 th Dist.] writ dism’d w.o.j . 2001). Accordingly, issue four is overruled.
No n C on st i tu ti on al Cl ai ms State v . Lain and Kenedy Memorial Foundation v. Mauro
W ithoutpresenting any reply points, Riem er and the other landowners citing State
v. L ain, 162 Tex . 549, 349 S.W.2d 579, 581 (1961), com mence their argument by asserting that Texaslaw perm its them to chal len ge asta te offic ial’ s c ond uct w hen it is13

wrongful and a m is appropri ation of pr operty by acti ons for decla ratory bel ief. Because La in is the foundation of Riemer’s and the other l andowners’ non-consti tutional “takings” claims, before wecom mence our analysis of the State’s

issues, we focus on w hether La in and Kenedy

Mem orial Foundation v. Mauro, 921 S.W.2d 278 (Tex.Ap p.--Corpus Christi 1995, writ deni ed), are contr olli ng or appl y to the non-consti tutional claims.
In La in , th e Co urt

qua lif ied it s decision that consent to sue t he State w as not requir ed by holdi ng, “[o]n the reco rd before us, w e ho ld it is not.” 349 S.W.2d at 581. A
com parison of the record in La in and the record here com pels the con clusion that La in does not support the claim s that legislative consent to sue is not essen tia l. In La in , the State off icial s did n ot q ues tion theland ow ner’stitl e, which w as b ase d on “a r egu lar c hain of conveyances” pre viou sly adj udg ed b y th e Co urt

in Ci ty of Ga lv es to n v. Men ar d, 23 Te x. 349. Id . Here however, although Riem er and the other

landowners assert

that this action is a “bound ary dispu te” the y ha ve n ot p led n or a llege d a d esc ript ion o r su rve y of the ir property. Moreover, th e State had been dism issed in La in and was not a party of record
on appeal pr osecuted by the remaini ng defendants. Ri eme r and theother land own ers seek relief and damages ag ainst the State and H uber. Finally, in La in , the Court held that consent to sue theState w as not necessary in an action to recover title or possession of land w here thesuit “is ag ainst individualsonly.” Id

. Kenedy, 921 S.W.2d at 278, is likewise not controlling here. Among ot her reasons, Kenedy was predicated on the decision in La in , w hich as pre viou sly dem ons tra ted is not14

app licab le here. Moreover, becau se the State w as a party to a suit then pending in Tr avis County to determ ine title and right of possession of the subj ect property, t he cou rt ultim ate lyordered the case transferre d to Travi s County for further proceedi ngs. Final ly, in Kenedy, the Foundation argued that (1) its claim s were ba sed on due cou rse of law rules anno unced i n La in , and (2) in verse condemnation pri ncipl es. Even if otherwise applicable, Kenedy

doe s not support the contention that the various tort claim s can be maintained w ithout legislati ve consent.15 State’s S uit v. Riemer Other Landowners & Ri eme r’ s Re mai ni ng Cl ai ms Sec ti ons 29 , 30 , & 31, (sur f ace & m in era ls) By their first issue, the S tate and Com missioner contend the com mencement of the State’s suit

against Riemer f

or trespass to the s urface of Sections 30 and 31 did not waive the State’s s overeign imm unity to al lo w the other landowners to assert their nonconstitutional claims by intervention. Then, b y the i r second issue, the S tate and Com missioner

conten d that com m encem ent of asuit agains t Riem er for t re spass to the surface estate of Sec

tions 30 and 31 did not operate to w aive sovereign imm unity as to Riemer’s counterclaims relating to the su rface and m ineral estate of Section 29. Similarly, by the ir th ir d issue, they contend th at the trespass to try title suit as to the surface o f Sections 30 and 31 did not operate to waive sovereign imm unityas to Riem er’s claims to the m ineral estate of Sections 30 and 31. W e agree. Although the State ack nowledges that its suit for trespass to the surface of Sections 30 and 31 against Riem er operated to subj ect the Sta te to “any defense by answer or cro ss- claim

germa ne to the ma tter in controversy, “ Anderson, Clayton & Co. v. State, 122 Te x. 530 , 62 S. W.2d 10 7, 1 10 ( 193 3), itcontends that sovereign imm unityrem ainsviab le
as to Riemer’s claims t o the m inerals under Sections 30 and 31 and the su rface and minerals of Sec

tion 29. W e agree.16

Based on the S tate’s original petition, Riemer’s claim s to Section 29, su rface and minerals, and claims to the m inerals underSections 30 and 31, an d the other la ndowners’ cl ai ms were not germane to the State’ s claim of tres pass to the surface of Sections 30 and 31. Citing State v. Sledge, 36 S. W .3d 152,156 (Tex.App. --Houston [1 stDist.] 2000, pet. denied), the S tate arg ue s that any w aiver of sovereign imm unity resulting from condem nation suit

would not su pport a counterc laim f or pre-j udgm ent intere st. Fur ther, in Fes al v. Hutchin son Cou nty , 44 3 S .W.2d 9 37, 939(Te x. Civ .A pp. --A m arillo196 9, writ ref’d n.r.e), we held that the county did not w aive sovereign imm unity from tort liabil ity by filing itssuit

on a sworn account for servicesren der ed apat ient

by theCou nty

Hos pita l. Based on the l imited scope ofthe State ’s sui t for tr espass to the su rface of Se c tions 30 and 31 and our concl usi on that La in and Kenedy are not controlling, we sustain issues one, two, an d three. We also con clu de the trial court erred in denying the plea of
sovere ign im m unit

y toall of Riem er’s claims, excluding his con stit utio nal “ tak ings ” cla im and claims of t itle to the surface of Sections 30 and 31.

Declaratory Relief &

Rem aining Claim s of Ot her Land own ers Byissue five, the State and Com missioner contend thatsovereign imm unity is a bar to the declaratory relief soughtby the other landowners. W e agree. In an action betw een private par

tiesto d ete rm ine whet her a c ons tru ctively

severed mineral inte rest is subject to the doctrine of a ccr

etio n, in Ely v. Briley, 959 S.W.2d 723 (Tex.App.--A ustin 1998, no pet.) the co urtheld that because a “trespass to try title action” was the ex clusive remedy17

to resolve confl ictin g claims to property, the declara tory j ud gme nt rules were not applicable. Even if declaratory relief is available in an action between private parties, ITDavy dem onstra tes that legislat ive cons ent is es sential to t he action for dec laratory judgm entw hen theStateis a party. 74 S. W .3d at 855. Although the Court recognized thatparti es ma y seek declaratory relief against state officials who allegedly act w ithout legal or statutory autho rity, i t concl u ded howeve r, that in contrast, declaratory j udgme nt actions against state of ficials seek ing to establish liability are suits agai nstthe State. Id

.
Although the Sch ool Land Board m ay have land surveyed or subdivided into tracts under section 32.064 of the Tex as Natu ral Resources Code (Vernon 2001), instead of seeking ma ndamu s relief to require the Comm issionerto obtain a resurvey of school land based on the decision in Brai nard , the landowners s eek to establish their boundary by declarato ryjudgm ent. As stated in appellees’ brief, the und erly ing a ctio n isa bound ary dispute. As such, it is not supported by the decision in La in . Moreover, determination of the boun dary her

e is not a n action u nder

a deed, will, written contrac t, or other w ritings constituting a contract or whose rights, s t atus or other legal relations are affected by a statute, municipal ordinance, contract . .

. whe re in de cl ar at or y r el ie f may be ava il ab le un de r s ec ti on 37 .0 04 of th e T exa s Civi l Practice and Rem edies Code (Vernon 1997).18

We have not overlooked Rylander v. C al dw ell, 2 3 S .W.3d 1 32 ( Tex .A pp. --A ust in 2000, no pet.), and other sim ilar cases cited by Rei mer and the other lando wners; how ever, Rylande r does not apply because the action was a c hallenge to t h e constitutionality of a statute w hereas the unde rlyi ng act ion is not predicated on any statutoryprovision. Finall y, this Court’s denial of attorney’ s fees in Brai nard , 968 S.W.2d at414, because it w

as not a declaratory j udgme nt action was upheld by the S up re me Court. Issue five is sus tained. Accordingl y, having concluded the trial court err ed in den ying Com m iss ione r Da vid Dew hurst’ s m otion to d ism iss all claim s of th e other lan dow ners and Riem er, that part of the ord er o f th e tr ial c our t si gne d M arc h 22 , 20 02, is reversed in part as toCom missioner Dewhurstand judgm ent is hereby rendered that all non-constitutional claims of Riem er and the other landowners, to wit: (1) conversion, (2) action for accounting, (3) action toquite title, (4) tres pass, (5 ) fraud, (6) declaratory relief and (7) money had and received, (8) unjust enrichment, are di smissed for want of jurisd iction, SAVEAND E XCEP T the constitutional “takings” claims and R iemer’s c laims to the title to the surface of S ections 30 and 31.
As to the State, having concluded the trial court erred in denying the State’s mo tion to dismiss the non-constitutional claims of the other landow ners, to-wit: ( 1) declaratory relief, (2) conversion, (3) accounting, (4) m oney had and received, (5) unj ust enrichm ent,19

(6) trespass, and (7) fraud, judgm enti s h er eb y r en de re d t ha t t he se se ve n c l ai ms asserted against the State be and are hereby dism issed for want of jurisdiction; and
As to Riemer, h aving concluded the trial court erred in denying the State’smo tion to dismiss the non-constitutional claims, to-w it: (1) conversion, (2) action for accounting, (3) action to quiet title, (4) trespass, and (5) fraud, judgm ent is herebyrendered tha t these five claims asserted against the Statebe and a re hereby dism issed for want of jurisdiction, SAVE AND E XCEP T Riemer’sclaims totitl e to the surface of Secti ons 30 and 31, above described; and
Final ly, concluding the trial court did not err in denying the m otions of the State and Com missioner

Dewhurst to dismiss t he constitutional “takings” claims of the other landowners and Riem er, that part of the order is affirm ed, and the cause is remanded to the trial court

to consider (1) the constitutional claims of the other landowners and R iemer
as they m ay apply to the Stateor Com missioner Dew hurst, and (2)Rie m er’ s c laim s totitl e to the surface o f S ect ions30 a nd 3 1 ab ovedes crib ed, and for fur the r pr oce edin gs in accordance w ith this opinion.

Don H. Re avis Justice Publish.