### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00348
- CV

Appellant, Glenn Hegar, Texas Comptroller of Public Accounts // Cross
- Appellants, Arnulfo P. Alcorta; Jose Abram Alcorta; Reyes Alcorta; Armando Alvarado, Jr.; David A. Arizmendi; Te resa Arizmendi
- Gordon; Adela A. Bautista; Guadalupe Cantu, Jr.; Jose Angel Gomez Cantu; Jul ian Jesus Torres Cantu; Olga Cantu; Olivia T. Cantu; Hortencia Cantu Castillo; Carmelo Cordero; Guadalupe Torres Corona; Margarita Diaz; Maria Torres Galvan; Frances A. Garcia; Guadalupe S. Gonzales; Julia C. Gonzalez; Maria Christina Gonzales; Pedro T. Gu ajardo; Juanita T. Hernandez; Margarita T. Hernandez; Brandon R. Hugonnett; Christopher Hugonnett; Jose Luis Hugonnett; Manuel Hugonnett; Maria Guadalupe Hugonnett; Ricardo Guillermo Hugonnett; Shawn Hugonnett; Cleofas Torres Juarez; Dora Alicia Medina; Au rora Diana Cantu Mejia; Rosalinda Cantu Pena; Edwardo Ramos, Jr.; Eloyd D. Ramos; Linda A. Rios; Carmen Rodriguez; Maria Del Rosario Rodriguez; Carlos Salazar; Velma Thies; Beatris Torres; Cosme Torres, Jr.; James Torres; Jose Angel Torres; Jose Luis Torre s; Marcelina Torres; Raul Torres; Alfredo R. Torrez; Miguel Torrez; Isabel C. Vasquez; Mary T. Venable, and Irma Salazar Villanueva

v. Appellees, Arnulfo P. Alcort a, Jose Abram Alcorta; Reyes Alcorta; Armando Alvarado, Jr.; David A. Arizmendi; Teresa Ar izmendi
- Gordon; Adela A. Bautista; Guadalupe Cantu, Jr.; Jose Angel Gomez Cantu; Julian Jesus Torres Cantu; Olga Cantu; Olivia T. Cantu; Hortencia Cantu Castillo; Car melo Cordero; Guadalupe Torres Corona; Margarita Diaz; Maria Torres Galvan; Frances A. Gar cia; Guadalupe S. Gonzales; Julia C. Gonzalez; Maria Christina Gonzales;

Pedro T. Guajardo; Juanita T. Hernandez; Margarita T. Hernandez; Brandon R. Hugonnett; Christ opher Hugonnett; Jose Luis Hugonnett; Manuel Hugonnett; Maria Guadalupe Hugonnett; Ricardo Guillermo Hugonnett; Shawn Hugonnett; Cleofas Torres Juarez; Dora Alicia Medina; Aurora Diana Cantu Mejia; Rosalinda Cantu Pena; Edwardo Ramos, Jr.; Eloyd D. Ramos; Linda A. Rios; Carmen Rodriguez; Maria Del Rosario Rodriguez; Carlos Salazar; Velma Thies; Beatris Torres; Cosme Torres, Jr.; James Torres; Jose Angel Torres; Jose Luis Torres; Marcelina Torres; Raul Torres; Alfredo R. Torrez; Miguel Torrez; Isabel C. Vasq uez; Mary T. Venable, and Irma Salazar Villanueva, // Cross
- Appellee, Glenn Hegar,

Texas C omptroller of Public Accounts2 FROM THE 53RD DISTRI CT COURT OF TRAVIS C OUNTY NO. D
- 1
- GN
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- 006831 , THE HONORABLE TIM SULAK, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N These cross appeals arise from a dispute ov er unclaimed mineral royalties held by the Texas Comptroller of Public Accounts. See generally Tex. Prop. Code §§ 71.001

– .308 (“ Unclaimed Property Act ” ). Arnulfo Alcorta and 53 others ( collect ive l y, the Alcortas) sued the Comptroller alleging that he failed to decide their claim to the royalties within the statutory time period. See id. § 74.506(b) (waiving sovereign immunity if Comptroller fails to decide claim within ninet y days). The Compt rol l er filed a plea to the jurisdiction which t he district court sustained in part and denied it in part. We will affirm.

S TATUTORY FRAMEWORK “The Unclaimed Property Act defines property that is presumed abandoned and prescribes a pro cess for reporting and d elivering it to the Comptroller to be held perpetually for the owner.” Highland Homes Ltd. v. State , 448 S.W.3d 403, 408 (Tex. 2014 ). Under the Act, the holder of abandoned property

— including mineral royalties and other unclaimed sums

— must deliver t he pr operty to the Comptroller with a report including, if known, the name and address of the owner or “any person who is entitled to the property.” See Tex. Prop. Code § § 74.301(a),
.101

. The Comp troller must keep records for each item or sum of money d eli ve red, see id. §§ 74.307 , .601(a), and is responsible to the owner for it , see id. § 7 4 .304.

S ubchapter F of the Act creates a procedure to recover such property by filing a claim with the Comptro ller. See generally id. §§ 74.501

– .509. The claim “must be f iled in accordance with procedures, contain the information, and be on forms prescribed by the3

[C]omptroller.” Id. § 74.501(c). The Comptroller “shall review the validity of each claim” and, if the Comptroller “determines that a claim is valid, the [C] om ptroller . . . may approve the claim.” See id. § 74.501(d)(1)

– (4). Section 74.506 waives sovereign immunity and allows a claimant to sue if “aggrieved by the decision of a claim filed under this subchapter” or if “a claim
has not been decided b efore th e 91st day after the day on which it was filed[.]” See id. § 74.506(a)

– ( c )

. The district court shall try the action de novo and apply the rules of practice of the court

. Id. § 74.506(d).

F ACTUAL BACKGROUND

The Alcortas’ claim s date to 1852, when the Sta te of Texas confirmed the Padre Island, La Feria, San Juan de Carricitos, Llano Grande, and Ojo de Agua land grants , among others

. See Act approved Feb. 10, 1852, 4 th Leg., R.S., 1852 Tex. Gen. Laws 6 3, 63

– 71, reprinted in 3 H.P.N. Gammel, The Laws of Tex as , 1822

- 1897 , at 941

– 48 (Austin, Gammel Book Co., 1898). Each of t he Alcortas claim to be the “lawful heir” of an original grantee and, therefore, the true owner of a portion of the lands within the grants

. 1 However, bec ause none of the Alcortas poss ess a reco r ded property interest in those lands , none of them would have been listed as the owner of any unclaimed royalties reported to the Comptroller.

T his reality prevented the Alcortas from filing a claim through the Compt roller’s online claims system, ww w . claimittexas.org . Th at website creates a multi

- step process for filing a claim . The first step in the process is to search the Comptroller’s records of unclaimed

1 The grants collective ly encompass approximately a million acres of land in south Texas. Persons claiming to be h eirs of the original grantees have litigated their claims for decades. See, e

. g. , De Lourett v. Kerlin , 182 F.2d 750 (5th Cir. 1950); Kerlin v. Sauceda , 263 S.W.3d 92 0 (Tex. 2008); State v. Balli , 190 S.W.2d 71 (Tex. [Comm’n Op.] 1944).4

property. At all relevant times, searching the website r equire d entering the name of a pe r s on who would have been reported to the Comptroller as the owner of abandoned property

. 2 T he Alcortas alleged that they filed a claim to the royalties in September 2017 and sued the Comptroller after the claim was not decided. 3 T he Comptroller filed a p l e a to the jurisdiction arguing that the Alcortas had not filed or attempted to file a claim

.

O n March 12, 2018, two of the Alcorta s appeared at the Comptroller’s office to file a new claim ( March Claim )

. They met wit h an employee of the Comptroller’ s U ncl a imed Property Division and presented him with “claim forms” and supporting documentation. The forms consist ed of printed screenshots from claimittexas.org with handwritten entries. Instead of providing an owner’s n ame, they attached a list of clai man ts. On the fields that would display information concerning the property to be claimed, they wrote “unclaimed mineral proceeds ” and the names of the five land grants. After unsuccessfully searching claimittexas.org for the first five claimants , the em plo yee allegedly then “threw the claim forms down onto the floor,” instructed another employee to shred them, and told the plaintiffs th at th ey had “filed nothing.”

A fter more than ninety days had passed, the Alcorta s amended their pleadings to seek review of th e Mar ch Claim. Their amended petition added claims for declaratory relief under the Uniform Declaratory Judgment Act (UDJA). See Tex. Civ. Prac. & Rem. Code § 37.004(a)

. The Comptroller filed an amended plea t o the jurisdiction asserting sovereign
imm un i ty a nd, with respect to the UDJA claims, the redundant remedies doctrine. The district

2 The parties repr esented at oral argument that claimittexas.org now enables searches for proper ties reported without an owner .

3 We take the following summary from the Alcortas’ pl ead ings and attached aff idavits, and evidence admitted by the district court at the hearing on the plea to the jurisdiction

.5

court denied the plea with respect to the “claims under Property Code Section 74.506” and sustained it with respect to the UDJA claims

. Both sides appealed.

L EGAL S TA N DARD S Sovereign immunity prohibits suits against the State without its consent. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc. , 571 S.W.3d 738, 746 (Tex. 2019). Immunity from suit is properly asserted in a plea to the jurisdiction because it “ im p lica tes the courts’ subject

- matter jurisdiction to resolve a dispute against the state.” Id. When the government challenges jurisdiction on immunity grounds, “the plaintiff must affirmatively
demonstrate the c ourt’s jurisdiction by alleging a valid wa iv e r of immunity.” See Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 927 (Tex. 2015) (per curiam) (quoting Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003)).

W e review a trial court’s disposition of a plea to t he j urisd iction de novo. City of Houston v. Houston Mun. Emps. Pension Sys. , 549 S.W.3d 566, 575 (Tex. 2018). “In doing so, we consider the pleadings, factual assertions, and all relevant evidence in the record.” Id. We construe the plaintiff ’ s pleadin gs l ibera lly to “determine whether the facts alleged affirmatively demonstrate the court’s jurisdiction to hear the matter.” Id. When the jurisdictional challenge implicates the merits, as here, the trial court r eviews evidence submitted by the parties t o d e termi ne whether a fact issue exists. See Chambers

- Liberty Ctys. Navigation Dist. v. State , 575 S.W.3d 339, 345 (Tex. 2019). The trial court’s review “generally mirrors the summary judgment standard.” Id. “I f the evidence creates a fact question reg ard i ng th e jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id. (quoting Texas Dep’t of Parks & Wildlife v. Miranda ,6

13 3 S.W.3d 217, 227 (Tex. 2004)). But if th e e v idenc e is undisputed or fails to raise a fact issue, the trial court rules on the plea as a matter of law. Id. (citing Miranda , 133 S.W.3d at 228).

C OMPTROLLER’S APPEAL The Comptroller argues that the district court erred by concluding it possessed jurisd iction over the Alcortas ’ suit. Specifically, t he Comptroller assert s that the March Claim is
not a “c laim ” for purposes of subchap ter F

. 4 The Alcortas respond that a fact question exists on whether the March Claim consti tutes a claim.

T hese arguments ra ise questions of statutory construction, which we review de

novo. Aleman v. Texas Med. Bd. , 573 S.W .3d 796, 802 (Tex. 2019). Our objective in construing a statute is to ascertain and give effect to the Legislature’s inten t. Id. We generally rely on the plain meaning of the statutory text as expressing that intent, but “we cannot construe the Legislat ure ’s chosen words and phrases in isolation.” Worsdale v. City of Killeen , 578 S.W.3d 57 , 69 (Tex. 2019). Instead, we ana lyze statutes “as a cohesive, con textual whole, accepting that lawmaker

- authors chose their words carefully, both in what they includ ed and in wh at they excluded.” Texas Workforce Comm ’ n v. Wichita County , 548 S.W.3d 489, 492 (Tex. 2018) (quoting Sommers for Alabama & Dunlavy, Ltd. v. Sa ndcastle Homes, Inc. , 521 S.W.3d 749, 754 (Tex. 2017)). “In that vein, we take statutes as we find the m and ref rain from rewriting the Legislature’s text.” Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm ’ n , 51 8 S.W.3d 318, 326 (Tex. 2017)

.

T h e Act does not define “claim,” so we begin with the term’s dictionary definition. See Texas State B d. of Exam ’ r s of Marriage & Family Therapists v. Texas Med.

4 The Alcortas state that they “focus solel y” on the March Claim on appeal

.7

Ass ’ n , 511 S.W.3d 28, 35 (Tex. 2017) (“To determine a statutory term ’ s common, ordinary meaning, we typically look first to their dictionary definitions and then consider the term’s usage
in other st atutes, c ourt decisions, and similar authorities. ” ). The dictionary defines a claim in relevant part as “[a] d emand for money, property, or a legal reme dy to which one asserts a right.”
See Claim , Black’s Law Dictionary ( 11th ed. 20 1 9). The Comptroll er invites u s to further define “claim” as referring to a specific subset of demands. Citing various other provi sions of the Act,
see, e.g. , Tex. Prop. Co de §§ 74. 301(b) ( addressing Comptroller ’s authority to approve claims ),

. 307 & .601(a) (requiring Co mpt roller to keep records for each item or sum of money delivered); .304(d) (providing Comptroller is responsible to owner “to the extent of the property de livered”), the Comptroller argues that we should define the term as a demand “for specific property
ide ntified b y the claimant that is in the possession of the Comptroller.”

H owever, the Legislature specifically waived immunity for suits complaining of the Comptroller’s decision (or failure to decide) “a claim filed under this subchapter, ” that is,

s ubc hap ter F. Te x. Prop. Code § 74.506(a). By employing this language, the Legislatur e incorporated subchapter F’s other provisions to define the scope of the waiver. Cf. Zachry Const. Corp. v. Port of Hou

. Auth. of Harris Cty , 449 S.W.3d 98, 108 (Tex. 2014 ) ( holding
st atutory waiver of immunity “subject to the terms and conditions of thi s subchapter” “incorporates the other provisions of the Act to define the scope of its waiver of immunity” (citing Tex. Loc. Gov’t Code § 271.152)). Only one part of subcha pte r F addres ses the characteristics of a claim: “All claims to which this section applies must be filed in accordance with procedures, contain the informat ion, and be on forms prescribed by the [C]omptroller.” See Tex. Prop. Code § 74.501(c). Under the pla in meanin g of this provision, section 74.501 does not apply to a claim that fail s to meet subsection 74.501(c)’s requirements. T he Comptroller has no8

du ty to review such a claim, see id. § 74.501(a) (directing Comptroller to “review the validity of

ea ch claim file d under this section”), and there is no waiver of immunity for suits c omplaining of the Comptroller’s failure to decide the claim , see id. § 74. 506(b) (waiving immunity if claim not decided certain number of days after “it was filed ”). Subcha pte r F’s text and structure support that complying with subsection 74.501(c) is the only prerequisite to qualify as a claim.

T he provisions cited by the Comp troller do not compel a different conclusion

. Each pertain s to a different part of the process cre ate d by the A ct and do es not expressly address what constitutes a claim

. Even though the Comptroller is correct as a general matter that we must construe th e Act “as a cohesive, contextual whole,” see Texas Workforce Comm ’ n , 548 S.W.3d at 492, we must not re write the statute’s text when doing so, see Cadena Comercial , 518 S.W .3d at 326 (“[W]e take statutes as we find them and refrain from rewriting the Legisl ature’s text.”). The Legislature specifically addressed what constitutes “a claim filed under” sub cha pter F, an d we may not add to its language. See R ailroad Comm ’ n v. G ulf Energy Expl. Corp. , 482 S.W.3d 559, 567 (Tex. 2016) (rejecting interpretation of statute that “impermissibly adds language and alters the statute ’ s plain meaning” (quoting Kia Moto rs Corp.
v. R uiz , 432 S.W.3d 865, 872 (Tex. 2014 ) )). Taking subchapter F as we find it, we conclude that

a claim for unclaimed money or property constitutes “a claim filed under” subchapter F if it meets the requirements of subsection 74.501(c).

H aving so concluded, w e conclude that t he March Claim constitutes “a claim filed under” subchapter F if it was “filed in accordance with procedures, contain [s] the in formation, and [is] on forms prescribed by the [C]omptroller.” See Tex. Prop. Code § 74.501(c). Th e Alcorta s a ssert that a fact issue exists concerning whether the March Claim met those requirements, but the Comptroller responds th at th e evidence is undi sputed that it did not

. A fact9

issue exists when the evidence “rises to a level that would enabl e r easonable an d fair

- minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997). In determining whet her a fact issue exists, we “take as true all evidence favorable to the plaintiff, indulging ever y r easonable in ference and resolving any doubts in the plaintiff ’ s f

avor.” Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 771 (Tex. 2018) (citing M iranda , 133 S.W.3d at 228).

T he Comptroller argues that no fact issue exists because the March C lai m was not fil ed through the website, the sole procedure prescribed by the Comptroller for filing claims. But the Comptroller does not explain how it prescri bed the website as the sole procedure for fi ling a claim, and there was evidence before the cour t t hat the Compt roller accepted the March Claim even though it was not filed through the website. S hortly after the March 12, 2018 meeting at the Comptroller’s office ended , the Alcortas ’ counsel emailed one of the assistant attorneys general representing th e Comptroller , stating that he considered the March Claim to have been rejected

. The assistant attorney general responded:

T he papers your clients brought [ into ] the unclaimed property division on Mar ch 12, 2018, were gathered and submitted as a claim

— the y were not de stroyed. I have attached these documents so you may inspect for yourself. [Comptroller Special Counsel for General Litigation] Murl Miller lef t you a voice message last week advising you of this, and he asked me to let you know

— in his wor ds

— that “the unc laimed property division has accepted the Alcortas documentation and is reviewing the claims made.” The claim filed by your clients on March 12, 2018 has not been rejected.
(emphasis add ed). Additionally , the a ssistant d irector of the Co mpt roller’s Uncl aimed Property Division testified in a deposition that division employees searched the Comptroller’s record s “for any property in the names that are listed here in the [March Claim].” Viewing this evidence in10

the light most favorable to th e A lcortas and i ndulging all reasonabl e inferences in their favor, see Alamo Heights , 544 S.W.3d at 771 , we conclude that a fact issue exists on whether the Mar ch Claim was filed in compliance with subsection 74.501(c). The district court correctly denied th e Comptroller ’s plea to the jurisdiction with respect to the Alcortas ’ statutory claim. See Chambers

- Liberty Ctys. Navig ation Dist ., 575 S.W.3d at 345 ( expl aining that if “evidence creates a fact question regarding the jurisdictional issue,

. . . the f act issue will b e resolved by the fact finder.” (quoting Miranda , 133 S.W.3d at 227

– 28) ).

W e overrule the Comptroller’s issues on appeal.

T HE ALCORTAS’ CROSS
- AP PEAL
The Alcorta s argue in a cross - appeal that the district court erred by concluding it lacked jur isdiction ove r the UDJA claims . The Comptroller argued that sovereign immunity and the redundant remedies doctrine defeated the district court ’s subject

- mat ter jurisdiction. We address the redundant remedies doctrine first because it is dispositive.

“ Un der the redun dant remedies doctrine, courts will not entertain an action brought under the UDJA wh en the same claim could be pursued through different channel s.” Patel v. Texas Dep ’ t of Licensing & Regulation , 469 S.W.3d 69, 79 (Tex. 2015)

. “ The focus of the doctrine is on the initiation of the case, that is, whether the Legislature created a statuto ry waiver of sovereign immunity that permits the parties to raise their claims through some avenue other than the UDJA. ” Id. ; see Texas Mun. Power Agency v. Pub lic Util. Comm’n of Tex. , 253 S.W.3d 184, 200 (Tex. 2007) (“An action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and11

in which may be adjudicated th e issues invo lved in the declaratory judgment action.” (quoting Texas Liquor Control Bd. v. Canyon Creek Land Corp. , 456 S.W.2d 891, 895 (Tex. 1970))).

T he Al corta s asked the district court to declare that:

• E ach of the Alcorta Plaintiffs is a lawful he ir of an origina l grantee of the Padre Island, L a Feria, San Juan de Carricitos, Llano Grande, and Ojo de Agua grants ;

• T hey are therefore “entitled to receive un claimed property [derived from the five land grants] under Texas law or [C]omptroller policy ”;

• T he Comptroller possesses unclaimed mineral r oyalties and other monies derived from those lands;

• T he Alcorta Plaintiffs “filed, or attempted to file” claim s fo r those sums with the Comptroller;

• T he Comptroller “did not decide” and “did not pay [the Alc orta] Plaintiffs’ claims” ;

• T he Alcorta Plaintiffs “are entitled to receive payment of their proportionate share of the [royalties] ” held by the Comptroller ;

• “ The amount of [royalties] held by [the Comptroller] which should be paid to [the Alcorta] Pla int iffs.”

T he Alcortas argue th at these claims a re not redundant of their statutory claim because a court trying an action under section 74.506 could not make findings on the “identi t y of the specific property made the basis” of a claim or the amount. T hey apparently assume th at a suit under section 74.506 is limited to the record before the Comptroller, but section 74.506 instead directs the court to try the action de novo. See Tex. Prop. Code § 74.506 (d) (“A court shall try an action filed under this sec tion de novo and shal l a pply the rules of practice of the court.”). In a trial de novo, the court “is not confined to the same evidence that was presented” to the ag ency , see Willacy County Appraisal Dist rict v. Sebastian Cotton & Grain , 555 S.W.3d 29 ,12

50 (Tex. 2018) , but “sh all try each issue of fact and law in the manner that applies to other civil suits in this state as though there had not been an intervening agen cy action or decision , ” id. (quoting PR Investments & Specialty Retailers, Inc. v. Stat e , 251 S.W.3d 472, 476 ( Tex. 2008)). Thus, trial of any suit under section 74.506 would necessarily involve findings on the same issues covered by the Alcortas’ request ed declarations. See id. Because the UDJA claims would determine the same issues as t h e Alcortas ’ statutory r emedy, the district court correctly decided that it lacked jurisdiction to adjudicate the UDJA claims under the redundant remedies doctrine.
See Patel , 469 S.W.3d at 79 ; Texas Mun. Power Agency , 253 S.W.3d at 200

.

W e overrule the A l co rtas’ appellate issue s.

C ONCLUSION We affirm the district court’s order sustaining the plea to the jurisdiction in part and denying it in part.

____________________ ______________________ Edward Smith, Justice Before Chief Justice Rose , Justices Triana and Smith Affirmed Filed: April 29, 2020