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

NO. 03
- 19
- 00246
- CV

Best Buy Stores, Inc., through its assignees Paul Denucci, Rockey Piazza , and Linda Piazza, Appellant

v. Glenn Hegar, in His Capacity as Comptroller of Public Accounts of The State of Texas , and Ken Paxton, in His Capacity as Attorney General of The State of Texas, Appellee s

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 002623, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

B est Buy Stores, Inc., through its assignees Paul Denucci, Rockey Pia zza , and
Linda Pia zza (collectively, the Assignees) , appeal s from the district cou rt ’ s order grant ing the Comptroller ’ s plea to the jurisdiction

. 1 W e conclude that Best Buy la ck s standing to b r i ng its tax
refund suit

— and accordingly that the Assignees lack standin g to bring suit in its place

— and affirm.

BACKGROUND

In 2018, t he Assignees su ed the Com ptroller in district court for a tax refund of $9,130,865.86 plus interest un der C ha p ter 112 o f th e T exas Tax Code and for “ limited

1 For convenience , w e u s e “ C omp troller ” t o r e fer to bo t h t h e Comptroller and the Attorney Gener al w hen describing procedural actions and filing s in cour t

.2

decla ra tory findings

. ” The Comptroller responded with a plea to the jurisdiction

. The following background recital is taken from the facts allege d in the pleadings , construing the pleadings
liber ally in f

av or of the p lainti ffs ; the relevant jurisdictional evidence submitted by the parties ; and our previous decisions related to this case to provide co ntext to the dispute

. See Tex as Dep ’ t of Parks & Wildlife v. M iranda , 133 S.W.3d 217, 226

– 27 (Tex. 200 4) (d es cribi ng sc o pe of
revi ew in appeal from district court ’ s denial of plea to jurisdiction) ; see also Assignees of Best Buy v. Combs , 395 S.W.3d 847, 85 2

– 58 (Tex. App.

— Austin 2013, pet. denied) ( outlining earlie r procedural iteration of this dispute) ; L evy v . Offi c eMax, Inc. , 228 S.W.3d 846, 848

– 49 (Tex. App.

— Austin 2007, no pet.) (same)

.

Between 1998 and 200 7 , Best Buy had a rebate program for certain goods Texas

cust omers purchased from Best Buy

. Pursuant to B est Buy ’ s rebate program, when the

custo mers su bmitt ed re b ate forms, Best Buy provided a partial refund o f the retail price but did
not refun d any of th e collected sales tax the customers paid on the full retai l price

. “ [ I ] n the sales

tax context, tax is collected by a seller adding the sales t ax t o an ini tial s ales price and then

c hargin g that amount to the buyer as part of the new sales price , ” and “ a person who c ollects a tax holds that money in tr ust for the State

. ” Co mbs v. H ealth Car e Ser

v s
. Corp. , 401 S.W.3d 623 , 6 3 2

– 3 3 (Tex. 2013 )

. “ [W ] hen such a tax i s c har ged to a buyer, the buyer ’ s und erstanding is that the portion of the sale attributed to tax will be paid to the government , ” and “ [t]he buyer also
knows t hat an y p rofit the sell er makes in the transaction is through the sales price a lone

. ” Id. at
63 3

. B est Buy re mitted the collected taxes for the full retail price to the State.

T he Assignees filed suit individually and as a class actio n a gai nst Best Buy , seeking a refund directly from Best Buy , but later amend e d their petition t o seek an assi gnm ent
from B est Buy of t he right to seek a tax refu nd from the Comptroller

. See Levy , 228 S.W.3d at3

848

. Best Buy initially proposed a se ttlement to r efund the sal es tax to members of the class if Best Buy could receive assurances of a cre dit for the re fun ds eit he r by agreeme n t with th e Compt roller or b y declaratory judgment

. Id. The Assignees then amended thei r petition to add the Comptroller as a defenda nt , the Com pt rol ler filed a plea to the jurisdiction , the district court
severed th e individual cl aim s a nd di smissed the c lass acti on clai m t o compel an assign ment of refund rights from Best Buy , and the Assignees appealed the dismissal

. Id. at 848

– 49.
R e ve rs ing the district court ’ s judgment and rem and ing the case , we he ld that the dist rict court
ha d ju r is dic ti on to consider the Assignees ’ claims t o co m pel Best Buy to assign its tax refund rights and to certify a class , but we did not opin e on the merits of th o se claims

. Id. at 85 0

– 52 &
851 n.2

. T he Assignees a n d Best Buy then settle d th e ir c a se su bj ect to a class fairness hearing by agreeing that Best Buy wou ld assi gn t o the Ass igne e s and individual class members
its right to bring a tax refund claim

. See Assignees of Best Buy , 395 S.W.3d at 85 3

– 5 4

. The
district court granted p reli minary appro val o f th e settlement , certified the class for settlement
purposes only , app o int ed c la s s coun sel , and grant ed clas s counsel the power of attorney to represent the members in their individual claims against the Comptroller

. Id. at 85 3

– 55. Afte r class counsel f

iled written claims with th e Com pt rol ler on beha lf of the ind ividua l cl a ss memb er s , t he Comptroller denied th e refu nd claims , class counsel fi led suit in district court , and
the district court granted the Comptroller ’ s plea to the jurisdic tion for failu r e to e xhaust
administrative r e medi es
. Id. at 856

– 58

. On appe a l, we affi r med , hold ing t ha t the di strict c ourt lacked jurisdiction to appoint the class counsel to represent the class members in the presentation
of their individual refund cla ims to the Comp tr olle r, th at the portion s of the order purporting to appoint c l a ss couns el as c ou nsel fo r the individuals we re void , and that the Assignees did not4

properly exhaust their admi nistrative reme dies because class counsel lacked authority to fil e individual re fu nd c laims on the class memb e rs ’ b ehalf

. Id. at 868

– 69.

I n 2 016 , t he Assi gne es then di smissed Best Buy from the suit , “ agree [ing] , considering the law of this case, that [ the Assignees] have no basis for a claim for d amages against Best Buy. ” Best Buy i n tu rn agr eed to a n injunct i on co mpelling it to ass i gn the cl a ss its
claim s for a t ax r efund before the Comp troll er
. The Assignees and Best Buy filed a n “ Agreed Final Injunction and Class Certification Order ” (Agreed Order ) in distr ict co urt , which the
di stri ct court signed i n July 2 017

. The A greed O rder de f ined the class t o inclu de “ [a] ll
individuals or entities who re deemed a mail

- in, retailer rebate for a taxable pur chase made from Best Buy

. . . where the purchase occurred on or after Mar ch 1, 1998 an d be fore July 16, 2007 ” ;
ap p o inted class counsel; and ordered Be s t Buy t o execu te an assignment to the c lass of it s right
to a tax refund . The Agreed Order also ordered “ the Class to accept this assign ment in lieu of any sales tax refund paid directly b y Best Buy, recognizing that t he Cl ass will attempt to re c over
any sales t axes ow ed to the Class from the Comptrolle r , ” and “ the Class Counsel ”

— “ [i]f the Class succeeds and recovers money ”

— to “ return to this Court with a proposal for distri buting
that reco v e ry, inclusive of distribut i o n exp enses and a request to r e cover C la ss Coun sel ’ s f ees and expenses from the money rec overed from the Comptroller. ”

I n August 2017, Best Buy assigned its right to request a tax refun d to the Assignees “ in dividually and on behalf of all others si mil a r ly si tuated , ” and t he A ssign ees sub s t ituted in place of Best Buy as the claim ants in the pending administrative hearing for the tax
refund. I n April 2018, the Comptroller denied the tax refund claim, concludin g that the Texas
T ax Cod e does not a uthori ze a clas s to file a t a x refund claim o r give t he Comptroller authority to grant a class action ref und claim. After the Comptroller denied the Assi gnees ’ motion for5

rehearing , the Assignees brought the underlying suit in district c ourt

. T he Comptroller

res p o nded with a plea t o the juri sd ictio n , raising fiv e g rounds : (1) the Assignee s ’ claim for declaratory relief seeks an impermissible redundant remedy , (2) the Assi gnees ’ rehearing motion
failed to state an y grou nds of error that could result in their enti t l ement to a tax ref u nd, (3) th e Assignees could not receive a refund because B est Buy n ever refunde d t he taxes to the customers
as req uired by Section 111.1 04(f) of the Texas Tax C ode , (4) Best Buy had already a ss igned its right to a t ax refund prior to bringing the under l y ing a dministrative re f und claim , and ( 5) the
Texas T ax Code does not provide for a class action tax refund suit. The district court granted the plea , and the Assignees appealed from the dismis sal

.

ANALYSIS
O n appea l, the Assignees raise four issues , o n e of w hich we consider dispositi ve : wh et her the di strict court erred in d ismissi ng the Assignees ’ claims for lack of subject matter jurisdiction , a question we review de no vo
. 2 See Miranda , 13 3 S.W.3d at 22 5

– 2 9 ( desc ribing
standard )

. In response to thi s issue , t he Comptroller argues that the distri ct court did n ot err in
dis missing the plea, reassert ing the argument that because Best Buy ne ver refund ed the sales tax
to the customers who paid t he tax as requi re d by Se ction 111.104(f) , the district court l a cked subject matter jurisdiction over the Assigne es ’ suit. Se e Tex. Tax Code § 111.104(f) ( “ No taxes, penalties, or interest may be refunded to a person who has collected the taxes from another

2 The other issues , which we do not consider, are: whether the Assignees are entitled to the tax refund as a matter of law, whether the C o m p t r o ll er can chal lenge a claimant’s claim before the district court on grounds that the Comptroller d id not rais e d u ri ng the administrat ive hearing, and whether the Comptroller’s attempt to exercise a judicial function viola t es the Texas Con stitution’s s e p a r a t io n of p o wers. W e also do not address the trial court ’ s dismiss al of the claims for declaratory rel ief as t he A ss ignees concede on appeal that any declaratory relief is redundant

.6

pe rson unless t h e p ers on has refunded all the taxes and interes t to th e person from whom the

taxe s were collec ted. ” ).

We d isagree , however, that Section 11 1. 104(f) imposes a jurisdictional requirement and provides a proper basis for affirming a n order granting a plea to t he jurisdicti o n
. The Legislature has expressly provided that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code § 311.034. But “the term ‘ pre’ indicate s th e req uirement must be met before
the lawsuit is filed.” Prairie View A&M Univ. v. Chatha , 381 S.W.3d 500, 512 (Tex. 2012); see Roccaforte v. Jefferson County , 341 S.W.3d 919, 925 (Tex. 2011) (“Section 311.034 applies to prerequisites to s uit, not noti c e r e quir ements that can be satisfied only after suit is filed.”). In contrast, “the question whether a plaintiff has established his right ‘to go forward with [his] suit’ or ‘satisfied the requisites of a particular statute’ pertains ‘in r ea lity to the r i ght of t he plaintiff to relief rather than to the [subject matter] jurisdiction of the court to afford it.’” Pike v. Texas EMC Mgmt., LLC , 610 S.W.3d 763, 774 (Tex. 2020) (quoting Dubai Petroleum Co. v. Kazi , 12 S.W.3d 71, 76

– 77 (Tex. 2000 )) . “We presum e ‘t h at t he Legislature did not intend to make the [provision] jurisdictional[,] a presumption overcome only by clear legislative intent to the contrary.’” Roccaforte , 341 S.W.3d at 925 (quoting City of DeSoto v. White , 288 S.W.3d 389,
394 (T ex. 2009)). A lth o ugh other subsections of Section 111.104 show such “clear legislative intent,” subsection (f) evinces no such intent. Rather, subsection (f) addresses the right to relief and demonstrates an intent to bar recovery absent the “refund[in g of] all the t a xes and interest to the person from whom the taxes were collected.” Tex. Tax Code § 111.104(f). Accordingly, lack of compliance with Section 111.104(f) is not a proper ground to affirm the trial court’s order granting the Comptroller’s pl ea to the juris d ict i on; while the provision may bar recovery on the7

merits, it is not a jurisdictional prerequisite to suit. See Pike , 610 S.W.3d at 774 & n.6 (noting that “statutory requirements and elements of a claim necessary to prevail on the merits ar e not jurisdi c tio n al” and that “a plaintiff does not lack standing in its proper, jurisdictional sense ‘simply because he cannot prevail on the merits of his claim; he lacks standing [when] his claim of injury is too slight for a court to afford redress’ ” (quoting Meye r s v
. JDC /Firethorne, Ltd. , 548 S.W.3d 477, 484

– 85 (Tex. 2018))).

I n di scussi n g Section 111.104(f) o n ap p e al , howev er, t he Comptro ller also briefly
identified a constitutiona l stand ing issue

. See Tex as Ass ’ n of Bus. v. Tex as Air Contro l B d. , 852 S. W .2d 4 40, 446 (Te x. 1993) ( holding that standing requirement cannot be waived and may be raise d for firs t t ime on a p p eal ). Pursuant to our authority, see Tex. R. App. P. 38.1(i),

. 2(a)(1), .9(b); St. John Missionary Baptist Church v. Flakes , 595 S .W.3d 211, 21 6 (T ex. 2 020) (per curiam), we requested supplemental briefing addressing whe ther the Assignees satisfied

cons t i tuti o nal standing requ irements

. The Comptroller argue s that “ Best Buy would have constitutional standing for a refund suit only if it re funded i ts custo mers ’ tax payments to them,
and to this date it has not done so ” ; “ Best Buy lacks s tanding becau se it h as n o t sustained a concrete injury: it has not expended any of its own funds ” ; and “ [b]ecause Best Buy has never
had constitution al standing to s ue the C omptroller, and the [Assignees ’ ] stan ding is dependent on Best Buy ’ s, the [Assignee s] lack stand ing t o brin g this suit. ” For the following reasons,

w e agree. To provide some context, b efore 2003 , the Assignees would have been abl e to
pursue a tax refund directly , without an assignment from Best Buy , and w o uld have satisfied the
constitut ional sta ndin g requ i rement in their individual capacity to bring a tax refund suit

. At that time, Section 111.104 (b) prov ided , “ A tax refund clai m may be file d wi th the comptroller by the8

p erson who paid the tax. ” Fleming Foods of Tex. , In c . v. Rylander , 6 S.W. 3 d 27 8 , 2 80 ( Te x. 1999) ( q uoting former Tex. Tax Code § 111.1 04(b)). T he Texas Supreme Court construed the provision as “ clearly and unam b ig uously ” pro v id ing that custome rs who paid sales taxes may

“ fi le for refunds of sales taxes ev en thou gh the tax wa s c ol lect e d by a vendo r ra ther than paid directly to th e State ” and “ without first obtaining an assignment from the vendor who collected
and remitted th e t ax
. ” Id. at 279

– 80

. In 2003, however, the Leg islature amended S ection 111.104(b ) to its curr ent for m : “ A t a x re fund cla im m ay be filed with the comptroller only b y the person who directly paid the tax to this state or by the person ’ s atto r ney, as signee , o r other

suc cessor. ” Levy , 228 S.W.3d at 850 ( quoting Tex. Tax Code § 111.10 4(b)) (emp hasis added)

. I n Levy , we c o nst ru ed the ame nded provision to preclude customers “ from filing a refund claim with the Comptroller as persons who d id not p ay the tax ‘ d i re ct ly ’ to the st ate, ” although we
noted that “ the statute allows an assignee to file a refund claim wi t h the Compt r olle r, even if t he assignee did not directly pay the tax to the state. ” Id. But we did n ot consid er wh ether an assignee cou l d bring a tax re f und cla im if the assignor did not refund some or “ all the taxes and
interest t o the person from wh om th e t axes were c o llec ted

. ” S ee Tex. Tax Cod e § 111.104(f)

. 3

3 The Assignees argue that this Court ’ s statement in Levy v. OfficeMax, Inc. that the taxpayer s “ may file a refund claim with the Comptroller once they have procured an as signment fr om t he Retailers , ” 228 S .W.3d 846, 8 50 (Tex. App.

— A us t in 2007, no pet.) , is “ the law of this case ” and “ firmly established these plaintiffs have standing

. ” But regarding constitutional standing to file a refund claim under the Texas T ax C ode as Best Buy ’ s as s i gnees , this stateme nt in Levy is dicta, not “ the law o f t his ca se. ” See i d. at 851 (noting that “ appellants in this case have not yet filed a refund claim under th e tax code ” ). T he statement was made in the contex t of construing Section 11 1.104 (b) a s “ p reclud [ i ng] appellan ts from filing a refund claim wit h t he Compt roller as p er s ons who did not pay the tax ‘ directly ’ to the state ” and a s “ allow[ing] an assignee to file a refun d claim with the Comptroller, ev en if the assignee did not directly pa y the ta x to the state. ” Id. We did not address the questio n of whethe r the Assigne e s would have standing to file a refund claim as Best Buy ’ s assignee s ; we were stating only that Section 11 1.104(b) did not preclude such a claim and that “ an assignment o f ref und rights f

rom the Reta ilers ” was “ a necessary precurso r to filing a refund cla i m with the Com ptroller

. ” Id. at 852.9 A lthough Section 111.104(f) ’ s requirement to r efund “ all the taxes and i nte rest ”

to re c ov er on a ta x refund claim i s not jurisdictional , it ne ver theless intimates t h e j urisdictional
issue of how a vendor would have constitutio nal standing if it has not refunded to its customers any of the sales taxes it has remitted to the Sta te

. The stand i ng requireme nt “derives from the
Texas Constitution’s separation o f powers a m on g the departme nts of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court a cce ss only to a ‘ person for an injury done him,’” and a “court has no jurisdictio n over a c l ai m made by a pl aintiff without standing to assert it.” DaimlerChrysler Corp. v. Inman , 252 S.W.3d 299, 304 (Tex. 2008) (citing Tex. Const. art

. I, § 13). Standin g i s a constit u ti onal pre re quisite to suit

. H eckman v. W

illiamson Co unty , 369 S.W.3d 13 7, 1 5 0 (Tex. 2012)

. “ Under Texas law, as under federal la w, the s tandi ng inquiry begins with the plaintiff ’ s alleged injur y
. ” Id. at 155

. To satisfy the standing req uir ement, “ [ t] h e plaintiff must be

person ally injured

—he must plead f acts demonstrating tha t he , himself (r ather than a third part y

or the publ ic at large), suffered the injury. ” Id. ; see DaimlerChrysler , 252 S.W.3d at 304 ( “ For standing, a plaintiff must be persona l ly ag grieved [

. ] ” )

.

T he Assignees cannot rely o n the ir own a lleged injury to e st ablish a per sonal injury when they sued as assignee s and not in their respective individual capacit ies

. 4 An

a ssignee s t and s in the shoes o f the assign or ; an ass ignee is not a pa rty to th e s uit in an individual
cap acity and may assert only tho se r i g hts t hat the ass ig n o r c ould assert

. See S outh w estern Bell
Tel. Co. v. Marketing on Hold Inc. , 308 S.W.3d 909, 916 (Tex. 201 0 ) (noting that a ssignee “ is
conside red unde r the law to h a ve suffered th e same injury as the assignors and have the same

4 And, as we noted in Levy , t he Assignees could not have br ou gh t a tax r efund suit in their individual capacities. 228 S.W.3 d at 848

– 50

.10

abil ity to pu r s ue t he claims ” ) ; Gulf I ns. v. Burns Motors, Inc. , 22 S.W.3d 417, 420 (Tex. 2000) ( “ As assignee, Burns Motors stands in N ash ’ s shoes and may assert only tho se right s tha t Nash
hi m s e lf could ass ert. ” ) ; John H. Carney & Assoc s
. v. Tex as Prop. & Cas . Ins. Gu a r . Ass ’ n , 354 S

. W.3d 843, 850 (Tex. App.

— Austin 2011, pet. denied) ( “ An assignee ‘ stands in the shoes ’ of the assignor but acquires no greater right than the assign or po ssessed. ” )

.

W e cann ot conclude that the Assignees have ple d facts that w o u ld es tab l i sh standing ba sed o n Best Buy ’ s being personally aggrieved or that there is any ev idence in th e record of a personal injury to Best Buy

. As Best Buy merely collec ted the sales t ax from the

cust omers, “ h o ld [ing] that money in trust for t he State, ” see C o m bs , 401 S.W.3d at 6 3 2

– 3 3 , and
then remitted the sales tax to the State , Best Buy has not been personally aggrieved unless it has
refunded at least some of the sales tax to the cu s to mers , see Acme Iron & Metal Co. v. Republic
Waste Serv s
. of T

ex., Ltd. , N o
. 03

- 17

- 0066 4

- CV, 2018 WL 6519581, at *3 (Tex. App.

— Austin Dec. 12, 2018, no pet.) (mem. op.) (noting that when plaintiffs have “suffered no damages , ” they
have “no legally cogniz a bl e injury ” and therefore “no standing ”)

. And after reviewing the e ntire

r e c or d, the undisp u ted evidence shows that Best Buy has not been personally aggrieved

. See
State v. Holland , 221 S.W.3d 639, 643 (Tex. 2007) ( “ [I] f the r eleva nt undi s puted e vidence

ne gates j urisdic tion, the n the plea to the jurisdiction must be g ra nt ed. ” (citing Miranda , 133 S.W.3d at 227

– 28) ) ; Tex as Ass ’ n of Bus. , 852 S.W.2d at 446 ( “ [W] hen a T exas appellate

court r eviews the standing of a party su a s ponte, it must co ns tru e th e pet i ti on in fav or of the party, and if necessary, review th e entire r ec ord to determi ne if any evi dence supports standing. ” )

. T he Agreed O rde r states that the Assign ees accept ed the assign ment of Best B uy ’ s ri ght to bring a tax refund suit “ in lieu of any sa l es tax refund pa id directly by Best Buy

. ” (Emphasis add ed.)11 T h e Assignees argu e that “ [u]nder the st atute governing taxes, Best Buy need not be personally aggrieved to pursue its refun d ; it need only b e a tax permitted seller. ” But the
T exas Su preme C o ur t has held tha t the Legislature cannot set a “lower” s tandard “ th an that set by the general doctrine of standing” because “courts’ constitutional jurisdiction cannot be enlarged by statute.” Finance Comm’n v. Norwood , 418 S.W.3d 566, 582 n.83 (T ex. 201 3 ) ; se e In re All cat Claims Serv., L.P. , 356 S.W. 3d 455, 462 (Te x
. 2 01 1) ( orig. proceedin g) ( “ If the grant of jurisdiction

. . . authorized in the statute exceeds the limits of Article V, Section 3(a) , then we simply exercise as much j u risdic ti on ov er the c as e a s the Const itution allows [.] ” ); In re Lazy W
Dist. No. 1 , 4 9 3 S. W.3d 538, 544 (Tex. 2016) (orig. proceed ing) (“For the Legi slature to attempt to authorize a court to act without subject matter jurisdiction would violate the const i tution al
sepa rat ion o f pow ers.”) ; McA llen Med. Ctr., Inc. v. Cortez , 66 S.W.3d 227, 2 3 1 (T ex. 2001) ( “ But the interl ocutory appeal statute does not s upplant the constitutional requirement that the court of appeals have subject

- matter jurisdiction, and bot h ripen es s and st andi n g are necessary components of that jurisdiction. ” ) ; In re LoneS t a r Lo go & S igns, LLC , 55 2 S.W.3 d 342, 350

– 51 (Tex. App.

— Austin 2 018, orig. proceeding ) ( “ We are to presume that the Legislature co dified its statutory versions of ‘ deriva t ive ac ti on[s] ’

. . . wi tho ut intendin g to stretch statutory standing so far as to po t e nt ia lly implicate justi ciabili ty concerns

. ” ); Tex as Quarter Hors e Ass ’ n v. Am erican Legion Dep ’ t of Tex. , 496 S.W.3d 175, 185 (Tex. App.

— Austin 2016, no pet.) ( “ We must
i n stead co nstr ue ‘ par

t y ’ in section 20 01.901 to extend no farther than what the Texas
C ons ti tuti on allows

— to pr esume o r incorporate the jurisdictional requirement that the ‘ party ’ possess a jus ticiable interest and standing to appeal. ” )

. Thus, whether Best Buy h as stat utory

s t an ding does not resolve the issue of whether it h as constitutio n a l s t andin g. 5

5 I n the c o ntext of t axpaye r suits for injunctive relief, the Texas Supreme Court has12 W e recognize th e implications of our holding : Best Buy has no t been personally
i njured and the refore does not have constitutional standing until it has refunded at lea st some of
the taxes to i t s cu stomer s , but the Texas Tax Code permits it as the person who “ directly ” paid
recognized that the Legislature may “ [ w]ithin constitutional boun ds

. . . grant a right to a c iti ze n or to a taxpayer to bring an action against a p ublic bo d y
. . . w i th o ut proof o f particula r or p ec uniary damage peculiar to the person bringing the suit. ” Scott v. Board of Adjustment , 405 S.W.2d 55, 56 (Tex. 19 6 6) (holding taxpayers had standing t o b ri ng i njun ction proceeding ag ainst c ity a nd other entit ies) ; se e Spen c e v . Fenchl er , 180 S.W. 597, 6 09 (T ex. 1915) ( concluding p laintiff did not have to show particular interest or damage when statu te authorized

“ any ci tizen ” to bring action to enjoin o per at ion of b awdy house) ; see also Grossman v. Wolfe , 578 S.W.3 d 25 0 , 257 n. 4 (Tex. A pp
. — Austin 20 19, pe t. denied) ( relying on Scott and Spence but questioning th eir contin ued statu s by noting that United State s Supreme Cour t in Luj an has h e ld that g eneral s tan ding r ules apply “regardless of an express statutory

- standi n g p r ovi s i on ” and that Te xas Supre me Court “ frequently cites to Lujan for standing princip les ” although “ it has done so in cases that did not involve statutoril y created standing ” (citing Luja n v . Defend ers of Wild life , 504 U.S. 555, 571

– 78 (1992) ) )

. Th e S c ott rule is a lso s im ilar to “ a n ar row, judicially

- created exception ” for taxpa yer standing: “ a taxpayer has standing to sue to enjoin the illegal expenditure of pu blic f un ds , and need not de m onst rat e a particularized injury. ” Andrade v. Venable , 372 S.W

. 3d 134, 137 ( Tex. 20 12) (per cur iam)

. Finally, the Texas Supreme Court has implied i n dicta that the Le gislature may bestow standing on an individual without that individual having satisfied the g e nera l requ irement s for standing. S ee , e.g. , Jefferson County v . J eff ers on C n t y . Constable s As s ’ n , 546 S.W.3d 661, 666 (Tex. 2018) ( “Generally, unless s tandin g is conferred by statute, a plaintiff must demonstrate th at he or she posses ses an interest in a conf lict d istinct from that of the general public, such that the d efe ndan t ’s a ctions have c aus ed th e plain tiff some pa rticular injury. ” (q uoting Sneed v. Webr e , 465 S.W.3d 169, 180 (Tex. 2015) )) ; Hunt v. Bass , 664 S. W.2d 323, 324 (Tex. 1984) ( “ This genera l rul e of s tanding is applied in all cases absent a statutory exc e p tio n to the contrary. ”) ; see also Grossman , 578 S.W.3d at 25 6

– 5 7 (collecting cases )

. I t is difficult to reconcile these cases with the established pr inciple that the Legislature canno t set a “l ower” standard “than that set by the general doctrine of sta n d ing ” b ecause “courts’ co nstitutional jurisdiction cannot be enlarged by statute.” Finance Comm’n v. Norwood , 418 S.W.3d 566, 582 n.83 (Tex. 2013)

. H ow e ver, Scott expressly recogn ized that st at utory stan ding must be “ [ w ] ithin con s t itutional boun d s
. ” 405 S.W .2d at 56

. And t he C omptroller argues , “ W hen the Legislature confers citizen standing, it waives the requirement that an injury be particularize d, that is, distinct from the in ju ry to th e general public, but the Legislature does not waive t h e requ ireme nt that the plaintiff su ffer any injury at all. ” T o the extent the line of cases stemming from Scott and Spence remain s bi nding law providing an ex ception from t he constitutional stand in g r eq uirements , the line of cases can be distinguished as c oncer n ing tax pa yer and citizen sui ts for injunction s for which there is a general injury but perhaps not proof of a part icular inj ury , which is unlike the claim for a tax refund here where the inj ury i s distinctly personal

. W e therefore c onc lude , consist e nt wi th No rwo od , tha t the s tatutor y grant to bring a tax refund suit does not set a “lower ” stan dard “than that set by the general doctr ine of standing

. ” 418 S.W .3d at 582 n.83

.13

the sales tax es to the State to fil e a tax refund claim (althou g h it ca nnot r ecover until it has
refunded all taxes and interests) ; the Assign ees hav e alleg e d in dividual inj ur ies that potentially
could be red ressed b y a tax refund , b ut the Texas Tax Co d e prohibit s a ta x refund claim in t hei r i ndividual capa c i tie s when they did not “dire ctly ” pay the sale s tax to the S tate ; and the Texas
Tax Code p ermit s Best B uy to assign its claims to the Assignees , but t he Assi gnees may rely only on an in

j ury to Best Buy to establish standi ng. T he Legislatur e ch o s e t o amen d Section 111.104(b) to permit the filing of a tax refund claim by a person who “directly ” paid the tax t o the S tate but not by a person who paid sales tax to a vendor who remi t ted the tax to t he S tate

. I t
is no t our province to e valuate the wi s d om of th e Legislature ’ s choice in enacti ng policies ; our duty is to apply the law as writte n. See Creati ve Oil & G as, LLC v. Lon a Hills Ranch, LLC , 591 S.W.3d 1 27, 133 (Tex. 2019) ( “ It is not the C o urt ’ s task to ch oose between compet ing policies addres s e d by legis lat ive drafting. We apply the mandates in the stat ute as written. ” (quoting In re Texas Dep ’ t o f Fam

. & P rotective Serv s. , 210 S.W.3d 609, 614 (Tex. 2006) (orig.
procee ding))). As the l a w is currently w ritten and given th e constitutional st a nd i n g r equire m ents to bring suit, we cannot conclude on this record that the Assignees have constituti onal st anding

a s Best B uy ’ s ass ignees to bring Best Buy ’ s tax refund claim. For these reasons, we overrule th e Assigne e s ’ first issue. Because this iss u e i s di sposit i ve of the appeal, we do not consider the Assignees ’ other issues

.

CONCLUSION

W e affi rm the tr

ial c o ur t ’ s judgment gra nting the Comptroller ’ s plea to the jurisdiction and dismi ssing the case.14 ___________ _________________ ______________ Me l is sa Goodwin , Just ice
Be fore Justices Goodwin, Baker, and Kelly
Affirmed
Filed: April 16, 2021