### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00023- CV

The Texas Departm ent of Transp ortat ion, an d Am adeo Saenz, Jr., in his Of fi cial Capacity as Direc tor of Texas Depart m ent of Transp ortat ion, App ellants

v. Sun set Transportation, Inc.; MEL Transport, Inc. d/b /a Magnum Transportat ion; and Sun set P rosper, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0187 4, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

O P I N I O N

The Texas Depa

rtment of Trans p o rt ation (TxDOT) and its executive direc tor, in his officia l capa city , appea l a district court order denying, in its entirety , their plea to the jurisdiction

over claims asser

ted by appellee s Sunset Tr ansportation, I nc.; MEL Transpor t, I nc. d/b/a Mag num Transpor tation, I nc.; and S u n s et P rosper , I nc. I n a single issue, appellants asser t that appellee s’ 1 claims—which wer e assert ed under the Uniform Dec lara tory J udg ments Act (UDJA) and section 2001.038 of the Administrative Procedur e Ac t (A P A)—are eac h barr ed by sovere ign immunit y . We agr ee t h at appellee s did not plead fac ts sufficie nt to invoke the district court’s jurisdiction under APA section 2001.038. Howeve r, we conclude that appellee s are entitled to the opportunity to reple ad those claims. I n light of this holding, moreove r, we further conclude that the

See Tex. Ci v. Prac. & Rem. Code Ann. § 51.014(a )(8) (West 2008). 1district court rea ched the corr ect result in denying appellants’ plea as to appellee s’ UDJA claims at

this juncture. For

these re asons, we a ffirm the district c ourt’s orde r.

STANDARD OF REVIEW A plea to the jurisdiction challeng es a trial court’s authority to decide the subject matter of a

specific cause or action. See Texas Dep’ t of Parks & W ildlif e v. M iranda , 133 S.W .3d 217, 225-26 (Tex. 2004). Analy sis of whether this authority exis ts beg ins with the plaintiff’s l i ve pleading s. Id

. at 226. The plaintiff has the initial burden of alleg ing fac ts that aff ir m at i v el y demonstrate the trial court’s jurisdiction to hear the cause . Id. (citing Texas Ass’n of B us. v. Texas Air Contro l Bd. , 852 S.W .2d 440, 446 (Tex. 1993)). Mere unsupported leg al conclusions do not suffice

. See Creedmoor-M aha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 515-16 & n.7 & 8 (Tex. App.—Austin 2010, no pet.). We must also consider evidenc e the parties prese nted below that is rele vant to the jurisdictional issues, Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 20 00), including evidenc e that a party has prese nted to neg ate the exis tence of fac ts alleg ed in the plaintiff’s pleading

. See Miranda , 13 3 S .W.3d at 227; see also Combs v. E n t ertainment Publ’ns, Inc. , 292 S.W .3d 712, 719 (Tex. App.—Austin 2009, no pet.) (summarizing differ ent standards g overning evidentiar y challenges t o t h e exis tence of pled jurisdictional fac ts wher e such fac ts implicate b o th jurisdiction and the merits versus wher e they implicate only jurisdiction). Our ultimate inquiry is whether the plaintiff’s pled and u n -negated fac ts, taken as true, and liberally construed with an ey e to the pleade r’s intent, w ould a ffirma tively demonstrate a claim or claims wit h i n the trial court’s subject-matter jurisdiction. See Miranda , 133 S.W .3d at 226; Creedmoor-M aha W ater Supply Corp. , 307 S.W .3d at 513, 516 n.8. This is a
2question of law that we revie w de novo. See Miranda , 133 S.W .3d at 22; Creedmoor-M aha W ater Supply Corp. , 307 S.W .3d at 513, 516 n.8.

REGU LATORY CONTEXT I t is undisputed that eac h appellee i s a motor car rier that eng ag es i n both interstate

commerc e and intrastate co m merc e within Texas. These fac ts implicate interre lated state and fede ral reg

ulatory reg imes that provide the context for appellee s’ claims and, ultimately , the jurisdictional issues on appea l. I t is thus helpful to beg in with a brief review of these laws befor e beg inning our

analy sis of the pleading s and jurisdictional evidenc e. I n 2005, the United S t ates Congr ess enac ted a law known as the Unified Carrie r Reg istration Act of 2005 (the UCR Act) cre ating a “Unifie d C ar ri er R eg istration” (UCR) sy stem throug h which a motor car rier operating in interstate or international commerc e sub m i t s a s i ng le
reg istration fee and pay s, throug h a desig nated “base state,” a “UCR fee ” in an amount deter mined based on the siz e of its vehicle flee t. See 49 U.S.C.A. §§ 14504a(a )(2) (West 2007), (f) (West 2007 & Supp. 2011). The sy stem is implemented throug h an interstate ag ree ment under which individual
states so desiring can opt to participa te in collecting UCR fee s and in sharing fee reve nues. See id. §§ 14504a(a )(2) , (e) , (f) (4), (g )-( h) (West 2007). Of chief rele vance to this case , howeve r, are provisions of the UCR Act that prohibit states—re g ardle ss of whether they h av e o p t ed into fee

collection and sharing under the UCR sy stem—from imposing cer tain additional reg ulatory burdens

on the interstate motor car riers that would reg ister under the UCR sy stem. Congr ess deter mined that it was an “unre asonable burden upon interstate commerc e” for a s t at e or its ag encie s “to enac t, impose, or enforce any require ment or standards with respe ct to, or levy any fee or char g e on,”
3interstate motor car riers in connec tion with reg is t er i n g their interstate operations with the state, the filing of information co n ce rni ng their fede rally require d financ ial responsibility , or the filing with the state of the name of their fede rally require d ag ent for service of proce ss. See id. § 14504a(c )(1) (A)- (C) (W est 2007 & Supp. 2011). States wer e further prohibited from re q u i ri n g any interstate m o t o r ca rr ier that also had intrastate operations to pay any tax or fee from which a purely intrastate c arr ier would be exempt. See id. § 14504a(c )(2) (West Supp. 2011). Finally , and most importantly for this case , Congr es s p rohibited states from “e n act[ing], impos[ ing], or enfor c[ing] any require ment or standards with respe ct to, or l ev y an d fee or char g e on” motor car riers that conduct both inter state and intrastate business “in connec tion with

. . . the annual rene wal of the intrastate authority , or the insurance filings

. . . or other intrastate filing require ment nece ssary to operate within the State,” if cer tain conditions ar e met. See id. § 14504a(c )(1) (D) (West 2007). For this prohibition to apply , the motor car rier (1) must have
sat isfied cer

tain fede ral reg istration require ments and (2) be “in compliance with the laws and
reg ulations of the State authorizing the car rier to opera

te in the State in acc ordanc e with [49 U.S.C.]

s ec t i o n 14501(c) (2)( A).” See id. Section 14501(c) (2)( A), in turn, provides that g ener al fede ra l
pree mption of state reg ulations “re lated to a price , route, or service of any [i nterstate] motor car rier . . . with respec t to the transportation of pr operty ” does not:

restric t the safe ty

reg ulatory

authority of a State w ith respec t to motor ve hicles, the authority of a State to impose highw ay route controls or limit ations based on the siz e or weig ht of the motor vehicle or the hazardous nature of the car g o, or the authority of the State to reg ulate motor car riers with reg ard to minimum amounts of financ ial responsibility

rela ted to insurance require ments and self- insurance authorization.

4Id. § 14501(c) (2)( A) (West 2007). Additionally , section 14504a(c )(1) (D) exempts from p ree mption

rene wals of a

motor car

rier’ s intrastate operating authority to transport waste or household g oods, conduct c erta in bus service s, or provide non- consensua l towing. See id. § 14504a(c )(1)

.

The UCR Act took eff

ect i n J an u ar y 2007, and Texas opted into the UCR sy stem
t hroug h leg islation eff

ective on September 1 of that y ear . See generally Tex. Transp. C o d e An n . §§ 645.001-.004 (West 2011) (dele g ating authority to, among other things, participa te, “to the fullest
extent prac ticable

. . . i n a fede ral motor car rier reg istration prog ram under the unified car rier
reg istration sy stem

. . . .”). At the same time, the L eg islature amende d the transporta tion code in an evident attempt to conf

orm Texas law to the UCR Act’s pre emption provisions. At all rele vant times, chapte r 643 of the transporta tion code has g ener ally prohibited

a motor car

rier from operating a co m m er ci al m o t or vehicle on a road or highw ay of this state unless the car

rier reg isters with the State (spec ifically , at the dispute’s inception, Tx DOT’s
motor vehicle division ) and obtains a reg istration cer tificate and, for eac h vehicle, a “ca b ca rd .” 2 See T ex . Transp. Code Ann. §§ 643.051, .054, .059 (West 2011). Such reg istrations must also be rene wed periodica lly , g ener ally on an annual basis. S ee i d. § 643.058, .061 (West 2011). Addi t i o n al l y , motor car

riers require d to reg ister under chapte r 643 must, with respe ct to eac h vehicle requiring reg istration, maintain liabilit y insurance or financial responsibil ity in an amount specifie d by the ag ency , which must not ex ce ed the amounts require d under fede ral law. See id. §§ 643.10 1 (a ), (b), .102 (West 2011). Proof of such i nsuranc e or financ ial responsibility must be filed at the time of initial re g istration, “at the time of a subsequent reg istration if the motor ca rrier

See infra note 5. 2 5was require d to be continuously regis t er ed

. . . and the car rier failed to maintain continuous
reg istration,” when the car rier chang es insurers, and when the car rier chang es owner ship. Id. § 643.103(a) (West 2011); see also id. §§ 643.053(2) (West 2011) (application for initial reg istration
must be acc ompanied by proof of insurance or financ ial re sponsibili ty as require d by section 643.1 0 3 ), .058(c) (3) (motor car rier rene wing reg istration must “provid[e]

. . . evidenc e of continuing insurance or financ ial responsibility ” i n required amount). Fe es may be assessed in connec tion with initial reg istration, rene wal o f re gi s tration, and insurance filings. See id. §§ 643.053(1), (3), .057, .058(c) (2), .061(b), .103(c)

. Al l of these g ener al require ments have been implemented throug h rules, codified at re l ev ant times in title 43, chapte r 18 of the Texas Administrative Code. See generally 43 Tex. Admin. Code §§ 18.2-.76 (2010) (Tex. Dep’ t of Transp., Motor Carrie rs), amende d by 34 Tex. Reg

. 8286 (2009), adopted 35 Tex. Reg

. 664 (2010) (codifie d as amende d at 43 Tex. Admin. C o d e § § 2 1 8.1-.77 (Tex. Dep’ t of Motor Vehicle s, Motor Carrie rs)).

I n response to the UCR Act, the L eg islature amende d section 643.002 of th e transporta tion code to provide simply that “[t] his chapter d o es n o t apply ” to “motor car rier operations exempt from reg istration by the Unified Carrie r Reg istration Act of 2005 (49 U.S.C. Section 14504a).” See id. § 6 4 3

. 0 0 2(1) (West 2011). A few months later, Tx DOT likewise promulg ated proposed rule ame n d m en t s t o implement the UCR sy stem and confor m to the Act’s
pree mption provisions

. See 32 Tex. Reg. 9923- 34 (2007) ( to be codifie d at 43 Tex . Admin. Code §§ 18.1-.76) (propose d Dec

. 28, 2007). T h e amendments as proposed ultimately took eff ect on April 17, 2009. See 32 Tex. Reg

. 9923-34 (2007), adopted 33 Tex. Reg

. 2978-81 (2008) (codifie d

6at 43 Tex. Admin. Code §§ 18.1-.76). New or amende d provisions that are ma terial to this a ppeal included a require ment th at i n t er s tate car riers operating in Texas “re g ister and comply with provisions of the [UCR ] Sy stem as require d by 49 U.S.C. 14504(a) [si c],” 43 T ex . Ad min. Code § 18.18(b), an exclusion of “motor vehicle[s] exempt from reg istration by the Unified Carrie r Reg istration Ac t o f 2005” from the “commer cial motor vehicle[s]” require d to be reg istered with
Tx DOT, s ee i d

. § § 18.2(6)( B) (viii), .11(a) , and a new subsection titled “I nterstate motor car rier
operating in intra state commerc e” that was added to the rule g overning expiration a nd rene wals of
state motor ca

rrier reg istrations:
(1) An interstate motor car rier reg istered under § 18.18 of this chapte r [i .e., UCR] is not require d to rene w a cer tificate of reg istration issue d u n der § 18.11 of t his chapte r [ the gene ral requireme nt that motor car riers reg ister with Tx DOT] except when the motor car rier is operating commerc ial motor vehicles a s a (A) char

ter bus ca rrier ; (B ) for- hire household g oods car rier; or (C) rec y clable ma terials or w aste c arr ier. (2) I f a motor car

rier that reg istered under § 18.18 of this chapte r [UCR ] does not maintain continuous motor car rier reg istration under § 18.11 of this chapte r, the m otor car

rier must file an application under § 18.13 of t his chapte r [ the g ener al require ments and proce dures for orig inal reg istration as a motor car rier with Tx DOT, including fee s and proof of insurance require ments] to operate on public stree ts and hig hway s in this s tate.

7Id. § 18.14(c) ; see id. §§ 18.1 1 , 18.13, 18.15-.16. The rule amendments did not alter preexisti ng 3 require ments that motor car riers “file and maintain proof of automobile liability insurance for all vehicles require d to be re g istered . . . a t all times.” Id. § 18.16(e) (1)( A); see also id. § 18.16(e) (2) (re quiring proof- of-insura nce filing at time of orig inal reg ist ra t i o n application, on or befor e

canc ellation date of insurance cover ag e, whene ver the motor car rier chang es insurers, whene ver the
motor car rier c hang es its name, whe never the motor car

rier chang es the classification of the ca rg o being transporte d, and whe n “re placing another active insura

nce f iling”)

.

THE RE CORD The rec ord in this case consists of appellee s’ live pl ea d i n g at the time of the hear ing on appellants’ plea to the jurisdiction and evidenc e prese nted by appellee s both during the 4 hear ing a nd as exhibit s to their response in opposition to appellants’ ple a. This evidenc e includes documentar

y evidenc e and b o t h aff

idavit and live testimony from Erick Smit h, an office r with a company that handles appellees’ reg ulatory filings. Appellants challeng ed only the suffic iency of appellee s’ pleading s; they d i d n o t attempt to neg ate the exis tence of any pled fac ts with evidenc e

nor prese nted evidenc e to controve rt that prese nted by appellee s. C o n s eq u ently , we must take as
true appellee s’ fac tual alleg ations and evidenc e. See Mira n d a , 1 3 3 S. W. 3 d a

t 226; Creedmoor-M

aha W ater Supply Corp. , 307 S.W .3d at 513, 516 n.8.

Tx DOT also added a statement to the prea mble of its re gi stration rules rec og nizi ng that 3 transporta tion code chapte r 643 prohibits motor car riers from operating commerc ial motor vehicles on a Texas road or highw ay “unless the car rier reg isters with the depar tment or is exe mpt from registration under Transport ation Code §643.002 .” 32 Tex. Reg

. 9923, 9927 (codifie d at 43 Tex. Admin. Code § 18.10) (e mphasis added)

. Their third amended or igina l petition. 4 8Appellee s’ pleading s and evidenc e ref lect that eac h entity is a Texas corpor ation, with a principal place of business in this state, and the rec ord further indicates that the corpor ations

are aff iliated or rela

ted. Eac h company , moreove r, is a motor car rier that operates in Texas in b o t h i n t erstate and intrastate commerc e, and none has operated intrastate within the cate g ories o f intrastate operations that are excluded from the UCR Act’s pree mption of state reg istration rene wal require ments, see 49 U.S.C.A. § 14504a(c) (1).

Be fore the UCR Act took eff ect in 2008, acc ording to Smit h, appellee s had reg istered with Tx DOT as motor car riers. After UCR went into eff ect, app el l ee s ’ p leading s and evidenc e indicate, appellee s had eac h reg istered under the UCR sy stem. The documentar y evidenc e ref

lects, and appellee s acknow ledg e, that Tx DO T re v o k ed the state reg istration of Sunset Transpor tation d uring the summer of 2008. Howeve r, it is not this revoc ation that is the immediate fo cu s o f appellee s’ claims for

relief

. I n their pleading s, appellee s complain that Tx DOT is requiring “UC R register ed interstate motor car

riers who also operate[] in intrastate commerc e . . . to maintain active insurance filings with TXDOT at all times, to re- reg ister with TXDOT and to pay applicable fee s to the State, all in contra diction to the UCR Act and the T ex as T ra n s p o rtation Code.” I n appellee s’ view, 5

After appellee s filed suit but befor e the hear ing on appellants’ plea to the jurisdiction, the 5 state functions implicated by appellee s’ allegat i o n s wer e transfe rre d from Tx DOT to the newly cre ated Texas Depa

rtment of Motor Vehicl es (DMV)

. See Act of May 23, 2009, 81st L eg ., R.S., ch. 933, §§1.01-11.01, 2009 Tex. Gen. L aws 2485-522; see also 34 Tex. Reg

. 8286 (2009), adopted 35 Tex. Reg

. 664 (2010) (codifie d at 43 Tex. Admin. Code §§ 218.1-.77) (DMV rules that g ener ally trac k the Tx DOT motor car rier reg istration rules disc u ssed here in). The L eg islature provided that, eff ective November 1, 2009, “all power s , duties, obliga tions, and rig hts of action of the Motor Vehic l e Di v i s i o n . . . of the Texas Depa rtment of Transpor

tation are transfe rre d to the Texas Depa

rtment of Motor Vehicle s” and that “the Texas Depa rt m en t of Motor Vehicle s shall 9section 643.002 of the transporta tion code and the UCR cre ate an exemption for and/or pree mpt

t hese state reg istration, insurance , and fee require ments with respe ct to interstate motor car rier s within UCR’s scope . Ap p ellees alleg e that their business operations are being impeded by being require d to “re -re g ister” with Tx DOT, maintain active insurance filings, and pay rela ted fee s as a condition of o p er at i n g i ntrastate in Texas, and that Tx DOT has been “thre atening administrative penalties and fines” and “har ass[ing] the plaintiffs with bog us rec ords reque sts” in connec tion with “re g istrat i on violations” that are premised on Tx DOT’s err oneous view of those require ments. Appellee s seek the f

ollowing de clar ations:

• “that the [Tx DOT] policy of requiring UCR reg istered interstate motor car riers who may also operate in intrastate Texas commerc e to maintain active insurance filings with [Tx DOT] at all times and/or re-re g iste r an d submit applicable fee s to re- activ[ate] a revoked [ Tx DOT] motor car rier cer tificate of reg istration, is invalid beca use it seeks to amend the law as made and provided by the L eg islature throug h a n administrative proce ss,” is “an excessive exercise

cont i n u e i n any proce eding involving the Motor Vehicle Division, the Vehicle Titles and Reg istration Division, or the portion of the Motor Carrie r Division .

. . that was broug ht be fore the eff ective date of this act in acc ordanc e with the law in eff ect on the date the proce eding was broug ht, and t h e fo rm er law is continued in eff ect for t hat purpose.” Act of May 23, 2009, 81st L eg ., R.S., ch. 933, §§ 6.01(a ), (d) , 2009 Tex. Gen. L aws 2519-20. Although t h e DMV and its executive direc tor would appea r, as a formal matter, to have succe eded to the interests of Tx DOT and its executive direc tor in this litigation, the Attorney Gene ral continued to prosec ute the plea to the jurisdiction in the names of Tx DOT and its executive direc tor, the district court’s or der r efe rs only to these defenda

nts, and the Attorney Gene ral has pursued this appea l solely in their names. I n an appar ent abundanc e of caution, appellee s joined the DMV as an additional defe ndant, alleg ing that the new age n cy has continued to interpre t and enfor ce the state reg istration and filing require ments in the same manner Tx DOT had. Neither side contends that the distinction betwee n the p rede cessor s and succe ssors has any substantive implications for this appea l. For this rea son, and beca use the events g iving rise to the underly ing dispute involved actions by Tx DOT, we have, for clar ity , conti n u ed t o i d en t ify the rele vant state actor s as Tx DOT and its executive direc tor, as the par t i es h av e, and simil arly cite to the versions of rele vant rules that ref ere nced T x DOT ra

ther than the DMV. 10of the power vested in [Tx DOT],” and “g oes bey o n d the statutory authority to reg ulate

interstate c arr iers and insure rs.”

• “that [Tx DOT] [i s] acting bey ond [i ts] statutory authority in requirin g i nsuranc e filings, reg istrations, a

nd fee s, for interstate c arr iers re g istered under the UCR who may operate in intrastate c ommerce .”

• that “[Tx DOT] [i s] p re empted by fede ral law from requiring interstate car riers reg istered under the UCR from making insurance filings or rene wing intrastate a

uthority .”
Appellee s additionally seek temporar y and perma

nent injunctive relief restra ining appellants “fr om requiring insurance filings from interstate motor car riers reg istered under the UCR, from conducting investigations o f i n t rastate movements of interstate motor car riers reg istered under the UCR, and from issuing violation repor ts or assessing fines to interstate motor car riers proper ly reg istered under the UCR conce rning intrastate moveme nt.”

Appellee s purport to asser t their claims under the limit ed waiver of sovere ign immunit y provided in the Uniform Dec lara tory J udg ments Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.009 (West 2009); see Texas Lottery Comm’n v. First State Bank of DeQue en , 325 S.W .3d 628, 633-34 (Tex. 2010) (re cog nizi ng that s ection 37.006(b) of the UDJA waives the State’s

sovere ign immunit y to the extent of permitting suits for decla rations as to the construction or validity of a state statute), but ultimately must rely upon the “ultra vires” exception to sovere ign immunit y . See City of El Paso v. Heinrich , 284 S.W .3d 366, 369-77 (Tex. 2009) (explaining that sovere ign or g overnme ntal immunit y does not bar suits ag ainst g overnme ntal office rs in their officia l capa city for
p r o s p e c ti v e r e li e f to r e s tr a in a c ts outside their discretionar y leg al authority

); Creedmoor-M

aha W a te r Supply C orp. , 307 S.W .3d at 514-16 (re cog nizi ng “that an otherwise p ro p er UDJA claim s eeking
to construe or invalidate a statute is nonetheless barr ed by sovere ign immunit y if the reme dy would
11have the eff ect of establishing a rig ht to relief ag ainst the State that implicates sovere ign immunit y and for wh i ch immunit y has not been waived,” including an ostensible “ultra vires” claim that
actua lly seeks to control state action). I n this reg ard, appellee s alleg e that Tx DOT’s executive direc tor “ha s acte d ultra vires of the applica

ble laws reg arding reg istration a nd insurance filings[,] for which no immunit y exis ts.” Appellee s also reque st attorney ’s fees as the UDJ A pe rm i t s . S ee Tex. Ci v. Prac. & Rem. Code Ann. § 37.009.

Appellee s additionally invoke section 2001.038 of the APA. APA section 2001.038 waives sovere ign immunit y to the extent of cre ating a cause of action for decla ratory relief reg arding the “validity ” or “applica

bility ” of a “rule ” if “it is alleg ed that the rule or its threa tened application interfe res with or impairs, or threa tens to interfe re with or impai r, a l eg al rig ht or privileg e of the plaintiff.” Tex. Gov’t Code Ann. § 2001.038(a) (West 2008); see Texas Logos, L.P. v. Texas Dep’ t of Transp. , 241 S.W .3d 105, 123 (Tex. App.—Austin 2007, no pet.) (“ section 2001.038 is a g rant of orig inal jurisdiction and, moreove r, waives sovere ign immunit y ”). As for the Tx DOT “rule ” that is under challeng e, appellee s alleg e that “in J une 2008 Tx DOT revised its policy or rules conce rning UCR reg istered interstate motor car riers who also operated in interstate commerc e to require those

car riers to maintain active insurance filings with TXDOT at all times, to re- reg ister wit h TXDOT and to pa y applicable fee s to the State.” This a lleg ation ref ers to a Tx DOT document, purportedly published on the ag ency ’s website and in evidenc e, titled, “ Im portant Notice for UCR Registe red Interstat e Motor Carr ier s Also Operating in Intrastate Texas Com m erc e ,” and indicating

“ REVISED—JUNE 25, 2008 ” and “ EFF ECTIVE IMMEDIATELY .”

12This document (her einaf ter, the “2008 Revised Notice” ) states that its “purpose is

. . . to provide instructions to I nterstate Motor C ar riers who are curr ently reg istered under the Unified Carrie r Reg istration (UCR) Ag ree ment and that also operate in I ntrastate Texas Commerce
to conver t exi s ting Tx DOT Reg istration to a non-expiring cer tificate,” and that it applied to “I nterstate Motor Carrie rs also operating in I nter s tate Texas Commerce” that had a curr ent U.S. Depa

rtment o f T ranspor

tation number, are curr ently reg istered under UCR, and whose intrastate operations did not consist of household g oods, char ter bus, or waste transporta tion. (Those
cate g ories of car

riers, the document indicated, “must continue to rene w Tx DOT reg istration.”) The 2008 Rev i s ed Notice then provided instructions for “conve rting ,” via a website or hard copy and mail, an exis ting Tx DOT motor car r ie r c e r ti f ic a te o f r e g istration to a “UCR/I ntrastate cer tificate” that “will not expire” as long as the motor car rier rema ins reg istered with UCR and its in t rastate
operations do not include household g oods, char ter bus, or waste transporta tion. Upon conver sion, the document further advised, Tx DOT would prov i de a “new cer tificate and insurance cab car d” i n d i ca ting UCR reg istration. The 2008 Revised Notice additionally indicated that “No fee s are require d for activating an expired Tx DOT Certifica te and the exis ting T x DO T Number will be
reta ined.” How ever , at the bottom of the pag e wa s printed, in bold:

All m otor c arrie rs m ust m aintain active insu rance filin g wi th TxDOT at all time s. Motor Carr iers ar e re qui red to r e-r egister and s ubmit applicable f ees t o re- activate a revoked TxDOT Motor Carr ier Ce rtificate of Registr ation

.
A p p e ll e e s c o n tr ast the 2008 Revised Notice with an ear lier Tx DO T d o c u me n t, s im il a

r in form, dated September 10, 2007, and titled, “ Im portant Notice for Motor Carr iers ” (her einaf ter
13the “2007 Notice” ). The 2007 Notice stated that its “purpose

. . . is to inform motor car riers of the latest require ments associate d with the Unified C ar ri er Reg istration Act of 2005” and provided a char t explaining reg istration and filing require ments applicabl e to various cate g ories of motor car rier

o p erations. The char

t, in rele vant part, instructed that: (1) motor car riers that operated i n t er s t at e

wer e require d to reg ister with UCR and to comply with the Fe dera l Motor Carrie r Safety Administration (F MCSA) require ments, (2) motor car riers that operated exclusively intrastate wer e require d to reg ister wit h Tx DOT, (3 ) i n t er state carrie rs t hat also opera ted i ntrastate as char

ter bus

car riers, non-conse nt tow-truck car riers, for- hire household g oods car riers, or waste carri ers

wer e re quired to re g ister with both UCR and Tx DOT a nd comply

with the FMCSA require ments, and (4) other interstate car riers that also operated intrastate (e.g ., appellee s) wer e require d to do the following :

• Comply

with FMCSA require ments (http://www.fmcsa.dot.g ov/); AND

• Reg ister with UCR ( http:// www.uc r.in.g ov/).
IMP ORTANT NOTE : All fi rs t t i m e re gi s t rants in this cate g ory must also reg ister with Tx DOT a s a motor ca rrier

. Appellee s int er p re t t he 2007 Notice as advising them that, having previously
reg istered with Tx DOT in y ear s past, they wer e no longe r require d to comply with any
state reg istration or insurance require ments or pay rela ted fee s, but neede d mere ly to reg ister under UCR and comply with FMCSA require ments. They asser t that this i nterpre tation was “c onsistent with the statutory lang uag e of the UCR and Chapter 643 of the Texas Transpor tation Cod e.” Additionally , Smit h testified that as late as the summe r o f 2008, but sometime befor e the
142 0 0 8 Re v is e d N o tice, Tx DOT had conducte d an investigation of Sunset Transpor tation’s re g is tr a

ti o n

an d that the i ndividual investigator had concluded that the company was properly reg istered. By 6 subsequently chang ing “its policy and rules” to require “ac tive insurance filings

. . . at all times” and

re- reg istration and fee s when state reg istration cer tificates are revoke d, as ref lecte d i n t he 2008 Revised Notice, app el l ees complain that Tx DOT acte d contra ry to section 643.002 of the transporta tion code and the UCR Act. 7

ANALYSIS

I n their plea to the j urisdiction, appellants asserted that sovere ign immuni ty barr ed appellee s’ suit, that APA section 2001.038 did n o t wa i ve such immunit y beca use appellee s had failed to identify any “r u l e” that they wer e challeng ing, that appellee s had not alleg ed fac ts that would invoke the district court’s jurisdiction via the “ultra- vires” exception to sovere ign immunit y , and that appellee s’ UDJA claims would be a redunda nt reme dy and m er e v eh i cle for rec overing attorney ’s fee s if it turned out that appellee s had invoked the court’s jurisdictio n t h roug h their APA claim. The district court’s order denying the plea did not elabor ate on its rea soning, nor wer e finding s of fac t and co n cl usions of law reque sted or made. On appea l, appellants bring forwa rd essentially

the same g rounds for dismissal on which they relied be low.

Smit h also claimed that the Tx DOT investigator furnished the company with a copy of the 6 2007 Notice a t the time. Appellee s also sug g est that Tx DOT was targ eting them specific ally when it issued the 7 2008 Revised Notice, and there d oes appea r to be some corr elation betwee n the dates of the investigation and when the notice issued. 15To deter mine whether appellee s have asser ted a valid ultra vires claim that invokes the district court’s sub j ec t-matter jurisdiction, we would construe the provisions of the transporta tion c ode and U CR Act that define the scope of Tx DOT’s le g al authority , apply them to the fac ts that appellee s have alleg ed, and asce rtain whether th o s e fa ct s constitute acts bey ond
Tx DOT’s leg al authority

. See Heinrich , 284 S.W .3d at 372-73 (ultra vires suit “must not complain of a g overnme nt office r’s exercise of discretion, but rathe r m ust alleg e, and ultimately prove, that the office r acte d without leg al authority or failed to perf orm a purely minist eria l act” ); CreedmoorMaha W ater Supply Corp. , 307 S.W .3d at 516 n.8 (quoting Hende e v. Dewhurst , 228 S.W .3d 354, 368-69 (Tex. App.—Austin 2007, pet. denie d ) (w h en analy zing whether plaintiff has alleg ed ultra vires acts, we construe the rele vant statutory or constitutional provisions that define the
g overnme ntal actor ’s discretionar y authority , apply the provisions to the pled and un-neg ated fac ts, and deter mine whether those fac ts f all within or outside tha t a uthority ). Appellee s emphasize that they expli citly pled that Tx DOT or its executive direc tor acte d “ultra vires” or contra ry to their leg al au t h o ri t y . Howeve r, mere ly asser ting leg al conclusions or labeling a defe ndant’s actions as “u ltra vires,” “illeg al,” or “unconstitutional” does not suffice to plead an ultra vires claim—wh at
matters is whether the facts alleg ed co n s t i t u t e actions bey ond the g overnme ntal actor ’s statutory

a uth ority , proper ly construed. Creedmoor-M aha W ater Supply Corp. , 307 S.W .3d at 515-16 & nn . 7

- 8. To this extent, the j urisdictional inquiry with re s pect to appellee s’ purported ultra vi res claims would substantially

overla p with the claims’ mer its. Id. at 516 n.8. I n contra st to appellee s’ UDJA claims, which are ultimately predic ated upon the ultra vires exception, appellee s’ claims under APA section 2001.038 invoke the distri ct court’s

16subject-matter jurisdiction if appellee s have challeng ed the “validity ” or “applica bility ” of a “rule ” under t h e AP A an d they alleg e that “the rule or its threa tened application interfe res with or impairs, or threa tens to interfe re with or impair, a leg al rig ht or privileg e of the plaintiff.” Tex. Gov’t Code Ann. § 2001.038(a) ; see Texas Logos, L.P. , 241 S.W .3d at 123

. De t er m ining whether appellee s have done so, unlike with our analy sis of appellee s’ ultra vires claims, does not require us
to delve into the m erits of the claims, see Texas Dep’ t of Pub. Safety v

. Salazar , 304 S.W .3d 896, 903 (Tex. App.—Austin 2009, no pet.)—nor wo u l d such an inquiry be proper . See Bland Indep. Sch. Dist. , 34 S.W .3d 547; Hende e , 228 S.W .3d at 366. Consequently , we s h o u l d b egi n with section 2001.038’s na

rrowe r jurisdictional inquiry

. Appellee s have alleg ed that the 2008 Revised Notice is invalid beca use it violates the limit ations on Tx DOT’s reg ulatory power s imposed by transporta tion code section 643.002 and the UCR Act. These fac tual alleg ations suffice to invoke the district court’s subject-matter jurisdiction if the 2008 Revised Notice is a “rule ” within the meaning of the APA. See, e .g. , Combs v. C ity of W ebster , 311 S.W .3d 85, 100-01 (Tex. App.—Austin 2009, pet. denied) (re cog nizi ng that “[t] o the
extent that no rule as define d by the AP A i s at issue, section 2001.038 does not provide any basis for the district court’s jurisdiction over appellee s’ decla ratory judgme nt action”)

. Appellants arg ue that the 2008 Revised Notice is not a “rule ” beca use it mere ly restates require ments alre ady
presc ribed in TxDOT’s forma lly promulg ated r

ules. A “r ule” unde r the APA:
(A) means a

state ag ency

statement of g ener al applica bility that: (i) implements, interprets, or pr escr ibes law or policy ; or
17(ii) descr ibes the proc edure or pra ctice r equire ments of a state ag ency ;

(B ) includes the amendment or re peal of a prior r ule; and (C) does not include a statement reg arding only the i n t er n al m an age m ent or org anization of a state ag ency and not aff ecting private rig hts or proce dures.

Tex. Gov’t Code Ann. § 2001.003(6) (West 2008). This definition ob v i o u s l y encompa sses
state ag ency statements formally promulg ated in compliance with the APA’s notice-a nd-comment rulemaking proce dures, see id. §§ 2001.021-.036 (West 2008), but it extends bey ond these. See, e.g. , El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n , 247 S.W .3d 709, 714-15 (Tex. 2008) (holding t h at agency rate -ca lculation proce dure, ostensibly an “interpr etation” of its formally promulg ate d rules, was itself a “rule ” that was invalid beca use adopted without comply ing with APA’s notice-a

nd-comment proce dures)

. Under cer tain circ umstances, this Court has held that ag enc y p ro n o u nceme nts that advise third parties reg arding applicable leg al require ments, as did the 2008 Revised Notice, may be “interpr etations” of law that constitute “rule s” under the APA. See Entertainment Publ’ns, Inc. , 292 S.W

. 3d at 720-22; Texas Alcoholic Bev erage Comm’n

v. Amuseme nt & Musi c Operators of Tex. , 997 S.W .2d 651, 657-58 (Tex. App.—Austin 1999, pet. d i s m’d w.o.j.); see also First Fed. Sav. & Loan Ass’n v. Vandygriff , 639 S.W .2d 492, 498- 99 (Tex. App.— Au s t i n 1982, writ dism’d w.o.j.). Precisely when those circ umstances exis t has sometimes been difficult to discern under the rele vant cas e l aw. One thing that can be said with 8

See, e.g. , Ron Be al, Substantive and Interpreti ve R u l es: The Judiciary Continues to 8 Struggle t o Define Them and to Determ ine T heir Legal Validity and Effect , 12 Tex. Tec h Admin. L .J . 55, 59-66 (2010)

. 18rela tive cer tainty , howeve r, is that an informal ag ency statement t hat does no more than re state its own forma lly

promulg ated r

ules would not in itself be a “ rule.” That a “rule ” must be m o re than a restate ment of a formally promulg ated rule is implicit in the AP A’ s re q u i reme nt that a “rule” have some leg al effec t on private persons and not

mere ly impact the “interna l manag ement or org anization of a state ag ency .” Tex. Gov’t Code Ann. § 2001.003(6)( C). Recog nizi ng this, we have consistently held that an ag ency statement interpre ting law must bind the ag ency or otherwise repr esent i t s au t h o ritative position in matters that impact
persona l rig hts. See Salazar , 304 S.W .3d at 905 (“[a]ge ncy statements that ‘have no eff ect on private persons’ are not considere d rules”) (quotin g B r i n kl ey v. T exas Lot tery Comm’n , 986 S.W .2d 764, 770 (Tex. App.—Austin 1999, no pet.)); Entertainment Publ’ns, Inc. , 292 S.W .3d at 722 (empha s i z ing that leg al interpre tation in Comptroller’s letters would bind ag ency employ ees and “unambig uously express[ed] an intent to apply this interpre tation

. . . in all future case s” involving simil ar fac ts); Amuseme nt & Music Operators of Tex. , 997 S.W .2d at 658 (ag ency memoranda to its law enfor ceme nt ag ents held to constitute “rule s” on that rec ord wher e there was evidenc e that ag ents “not only intend t o en force, but have enfor ced administrative sanctions” in acc ordanc e with memoranda ); see Brinkley , 986 S.W .2d at 770 (obser ving that ag ency advisory opinion reg arding applicable law would have no leg al eff ect “abse nt a statute that so provides or some attempt by the
ag ency to enfor ce its statement ag ainst a private person” ). An ag ency statement that mere ly restate d

a formally promulg ated rule would not meet this test beca use it would be the underly ing rule, not the
ag ency ’s restate ment of it, that had leg al eff ect. This Court has previously conclude d as much. See Texas Mut. Ins. Co. v. Vista Cmty. Med. Ctr., L.L.P. , 275 S.W .3d 538 , 556 (Tex. App.—Austin

192008, no pet.) (“The 2005 Staff Report did not aff ect private rig hts beca

use it did not ch an ge o r amend” a for

mally promulg ated r

ule).
T h i s co n clusion is also consistent with the second element of the APA’s “rule ” def inition, which provides that a “r ule” “ includes t he amendment or repeal of a prior rule.” Tex. Gov’t Code Ann. § 2001.003(6)( B)

. Although “includes” is a term of enlar g ement rathe r than exclusion or limit ation, such that not all “rule s” amend or repe al other rules, this indicia of a “rule ” 9 is nonetheless illu s t rative of the ty pes of ag ency actions that would have leg al eff ect on private
persons, as contemplated by the third element. Ag ency statements that mere ly restate d rules would have no suc h eff

ect, a nd would not themselves be “ rules.” Although disti ng uishing a mere restate ment of a fo rm ally promulg ated rule from a
statement that is itself a “rule ” might prove more elusive in other circ umstances, see Vista Cmty. Med. Ctr., L.L.P. , 275 S.W .3d at 555-56, its a pplication is straig htforwa rd in this case. A

ppellees complain of the portion of the 2008 Revised Notice stating that motor car riers whose state reg istrations have been revoked “ are required to re- registe r an d sub m it appl icable fees .” This statement trac ks Tx DOT’s rule providing that “[i] f a motor car rier that reg istered under § 18.18 of this ch ap ter [UCR ] does not maintain continuous motor car rier reg istration under § 18.11 of this chapte r, the motor car rier must file an application under § 18.13 of this chapte r t o o p er at e

on public streets and highw ay s in this state.” 4 3 T ex . Admin. Code § 18.14(c) ; see id. § 18.13 (re g istration require ments, including applicable fee s and proof of financ ial responsibility ); see also

Tex. Gov’t Code Ann. § 311.005(13) (West 2005) ( “‘[i] ncludes’ and ‘including ’ are terms 9 of enlar g ement and not of limit ation or exclusive enumer ation, and use of the terms does not cre ate a pre sumption t hat components not expressed a re e x cluded” ). 20id. §§ 218.14(c) (2),

. 1 3

. Appellee s also complain about the notice’s statement that “ All m otor

carriers m ust m aintain active insu rance fi ling wi th TxDOT at all tim es. ” This statem en t , likewise, t rac ks Tx DOT’s r ules. See 43 Tex. Admin. Code § 18.16(e) (1)( A) (motor car riers must “file a nd maintain proof of

automobile liability

insurance for a ll vehicles re quired to be r eg istered

. . . at all times”); see also id. § 218.16(e) (1)( A). We ag ree with appellants that the 2008 Revised Notice merely restate s Tx DOT’s formally promulg ated rules and, thus , is not itself a “rule” unde r the APA. Be cause appellee s have alleg ed only this “rule ” as the basis for thei r cl ai m s u n d er AP A s ec tion 2001.038, they have failed to invoke the district court’s subject-matter jurisdiction throug h that statute. See City of W ebster , 311 S.W .3d at 100-01. On the other hand, the fore g oing ana l y s i s also reve als that appellee s’ claims

nece ssarily implicate the substantive validity of the underly ing formally promulg ated Tx DOT rules,
or, alternatively , t h e applicability of the underly ing rules in light of the rules’ exclusion of “motor vehic le[s] exempt from reg istration by the Unified Carrie r Reg istration A ct of 2005” fr om the “commer cial motor v ehicle[ s]” require d to be reg istered with Tx DOT. The Texas Supreme Court has inst ru ct ed us that if a claimant’s pleading s omit sufficie nt fac ts to aff irmatively demonstrate the trial court’s jurisdiction but do not aff irmatively

demonstrate inc urable defe cts in jurisdiction, the issue is one of “plea ding sufficie ncy , and the plaintiffs should be aff orded the opportunity to amend.” Miranda , 133 S.W .3d at 226-27. This is such a case . The substance of
ap p ell ees’ claims seek decla rations reg arding the validity or applicability of Tx DOT’s formally promulg ated rules. APA section 2001.038 conf ers subjec t-matter jurisdiction on the district c ourt
to deter mine such claims. To cure the exis ting jurisdictional defe ct, appellee s need only add

21alleg ations to the eff ect that the “r u l e” o r “rule s” they are challeng ing are Tx DOT’s formally promulg ated rules instead of the 2008 Revised Notice. Acc ording ly , we will, at this juncture, aff irm the district court’s order denying appellants’ plea to the jurisdiction as to appellee s’ section 2001.038 claims without prejudice to appellants re- u rgi n g t heir plea once appellee s have had a rea sonable opportunity

to amend their ple ading s to cure the jurisdictional defe ct. 1 0 Assuming that appellee s replea d under section 2001.038, we ag ree with appellants that appellees ’ UD J A cl aims would be redunda nt reme dies to the extent they complain about
Tx DOT’s imposit ion of requirem en t s rela ted to insurance or re- reg istration for motor car riers whose prior reg istration ha s been r evoked. I n that event, a

ppellees’ UDJA claims reg arding those require ments would be subject to dismiss al. See Texas Mun. Power Agenc y v. Public Util. Comm’n , 253 S.W .3d 184, 200 (Tex. 2007) (dec lara tory -judg ment action will not be enter tained if another pending action betwee n the same parties may ad j u dicate the same issue); Strayhorn v. Raytheon E-Sys., Inc. , 101 S.W .3d 558, 572 (Tex. App.—Austin 2003, pet. denied) ; Y oung Chevrolet, Inc.

v. Texas Mo t o r V

eh icle Bd. , 974 S.W .2d 906, 911 (Tex. App.—Austin 1998, pet. denied) ; Ben Robinson Co. v. T

exas W orkers’ Comp. Comm’n , 934 S.W .2d 149, 153 (Tex. App.—Austin 1996, writ denied)

. But this reple ading has not occur red y et, and we conclude that the district court

rea ched the corr ect result in de clining to dismiss appellee s’ UDJA c laims at this juncture, pending appellee s’ opportunity to reple ad their section 2001.038 claims. Although appella n t s urg e us to

To the ex tent appellees’ complaints reg arding the 2007 Notice are intended to sound in 1 0 estoppel, appe l l ee s will likewise have the opportunity to reple ad any fac ts they can asser t in g ood faith t o meet the high burden fo r s u ch a claim. See City of W hite Settlement v. Super W ash, Inc. , 198 S.W .3d 770, 774-75 (Te x . 2006). 22proce ed with an analy sis of whether appellee s have alleg ed ultra vires acts, at the prese nt time it is

unnece ssary and would be prema ture for us to rea ch these questions, which would eff ectively decide the merits of appellee s’ putative section 2001.038 claims. See Salazar , 304 S.W .3d at 903; see also Bland Indep. Sc h. Dist. , 34 S.W .3d 547; Hende e , 228 S.W .3d at 366.

Howeve r, appellee s’ UDJA claims are also predic ated upon alleg ed Tx DOT actions bey ond those that are the subject of their section 2001.038 claims. L ibera lly construing appellee s’ fac tual alleg ations, as we must do, see Miranda , 133 S.W .3d at 226, they claim that Tx DOT is requiring motor car

riers that have alre ady validly reg istered with it and whose reg istrations have not been revoke d to re- reg ister, pay rela ted fee s, and also submit annu al filings of proof of financ ial responsibility

. Suc h co n d u ct would run afoul of the UCR Act and, thus, transporta tion code section 643.002. Consequently , these alleg ations would invoke the district court’s subject-matter 1 1

See 49 U.S.C.A. § 14504a(a )(9) , (d) (West 2007). The en t i t y t h at administers the 1 1 UCR sy stem, a join t s t at e- i n d ustry body known as the UCR Plan Boa rd of Direc tors, has published “informa l g uidance ” explaining the rela tionsh i p b etwee n section § 14504a(c )(1) and section 14501(c )(2) (A) a s follows:

• A state shall not “ [r] equire an interstate motor car rier . . . of proper ty , to renewor cha

rg e a fee to rene w its intrastate authority or insurance filings or any other fi l i n gs require d of an intrastate car

rier,” except with reg ard to car riers that transport waste or household g oods, cer tain bus operations, and non-conse nsual towing. Unified Carrie r Reg istration Plan Boa rd of Direc tors, The Unified Carrier Registration Act of 2005 Informal Guidance

for Intereste d Parties , availabl e a t h ttp://ww w.wutc.wa.gov/webimage.nsf/0/421868d1f 06cf30888257361005f

f b e4 / $ F IL E / A T T7 0 R B R /U CR%20Questions%20and%20Answer% 20Docume n t% 2 0 1

- 3 0

- 0 8

. p d f ( e mp h a s is in orig inal).

• A state may , howeve r, “[r]equire an interstate car rier to complete the application require ments, including the fee s and proof of insurance cover ag e, for a n initial application for inter state oper ating authority .” Id. (empha sis in original).

23jurisdiction under the ultra vires exception to sovere ign immunit y . See Heinrich , 284 S.W .3d at 372-

73. The district cour

t did not err in deny

ing a ppellees’ plea a s to these claims.

CONCLUSION For the rea sons we have explained, we aff irm the district co u rt ’s o rder deny ing appellants’ ple a to the jurisdiction.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Aug ust 19, 2011

• The UCR Act “has taken

. . . awa y from the States” enfor ceme nt of financ ial responsibility laws with reg ard to filing proof of financ ial responsibility .” “Howe ver, a State may enfor ce its laws requiring liability cover ag e for any vehicle operating on the State’s public way s. I n other words, if an interstate motor car rier is found t o b e o p er ati ng on a State’s highw ay s without liability insurance cover ag e, the State may take an action ag ainst that motor car rier.” Id. at 11.

• A state may not re q u i re “an annual insurance or surety bond filing by an interstate motor car rier that is operating under an intrastate authority from the State.” That is, “[a] State may require the insurance of s u re t y bond filing as part of the initial issuance of the intrastate authority , but under § 14504a, not annually there afte r. A State may re q u i re t h e insurance company or surety company providing such cover ag e to notify the State when ev er t he cover ag e is canc elled or not rene wed. Additionally , nothing in the UCR Act prohibits a State from verify

ing the cover ag e as part of its internal revie w proce ss of intr a s ta te motor car

riers.” Id. 24