### 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. 03-11-00502- CV

Dee cye C layton Bedell, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GV-1 0-0 0122 6, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

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

Dee cy e Clay

ton Be dell bring s this interlocut o ry appea l from the trial court’s order
g ranting the State’s plea to the jurisdiction as to Be dell’s counter claim for bill of revie w. He contends that the trial court err ed by impli ci tly deny ing his challeng es to its jurisdiction on the
State’s claim ag ainst him and by g ranting t h e S t at e’ s plea to the jurisdiction reg arding his

counter claim. We will re v er s e the trial court’s order g ranting the State’s plea to the jurisdiction, deny that plea, and rema

nd for further proce eding s. We will dismiss for want of jurisdiction Be dell’s complaints about the implicit denials of his challeng es to the jurisdiction of the court to consider the State’s suit ag ainst him.

BACK GR OUND

On information that cer

tain oil and injection wells had not been timely plugg ed, the Commi ssion held a public hear ing in which Be dell purportedly parti ci p ated by telephone. TheCommi ssion direc ted Be dell to pay $28 ,000 for violations of safe ty and pollution-control

require ments rela ted to wells and also order ed him to plug the wells. When he failed to comply , the
State of Texas, “acting by and throug h the Attorney Gene ral of Texas, on behalf of the Railroad Commi ssion of Tex as , ” sued to rec over the penalties assessed by the Commi ssion as well as attorney ’s fe es, cour

t costs, and the State money spent to plug the wells.
Be dell answe red that he is not liable in the capa city in w hich he is sue d, that he did

not execute t he documents by which he was deeme d responsible for the wells, and that there is a defe ct of parties. He alleg ed that he did not rec eive notice of the administrative hear ing and did not authoriz e any one else to be his ag ent for service

. He asser ted that the Commi ssion’s order for
pay ment and plugg ing was issued ag ainst him when he was not an oil and g as opera tor and did not

own or opera te t he relevant lease. I n response to the S tate’s moti on for summ ary judgme nt on its claims ag ainst Be dell, he asser ted that his fathe r (De ecye Br uce Be dell) is the owner of the company and the ope rator of

the lease and that “pe rsons who are not par ties to this proceeding [were] filing documents under [appellant’s] name, signing his name, and purporting to act as his ag ent wit hout
h i s k n o wl ed g e, permission, and consent.” Be dell filed a counter claim for bill of revie w of th e Commi ssion’s orig inal assessment of th e p en alt ies and costs, as well as a separ ate bill of revie w action not cur

rently befor e this Court. The parties filed motions that reque sted dispositi on of some claims. The State filed a motion for par

tial summary

judgme nt seeking the Commiss ion’s awa rd of penalties a

nd costs in

a judgme nt. I n response to Be dell’s counter claim, the State filed a plea to the jurisdiction urg ing that the t rial court lacke d jurisdiction over the counter claim because Bede ll had not demonstra t ed that

2the State had waived sovere ign immu n i t y fr o m a bill of revie w, beca use the counter claim was an impermissible collater al attack on a judgme nt, an d beca use Be dell had failed to join a party nece ssary
to his counter claim. Be dell filed motions for summary judgme nt and to dismiss ag ainst the State’s claims, asser

ting in both that the Commi ssion never had jurisdiction over him beca use he was never the oper ator of the oil and g as lea se.

The trial court has granted some relief in this case . Whil e not expressly ruling on Be dell’s motions reg arding the State’s collection claim, the trial court g rante d the State’s Motion for
P ar t i al Summary J udg ment on its claims. I n rende ring that partial summary judgme nt, the co u rt

a w a r d e d th e r e q

u e s te d administrative penalties, civil penalties, and reimburse ment of plugg ing costs, but expressly decla

red that the order was not a final judgme nt and was not appea lable. I t conclude d that the State was entitled to attorney ’s fee s but rese rved awa rding a specific amount until afte r “fina l

t ri al

. ” The trial court also g rante d the State’s plea to the jurisdiction on Be dell’s bill-of-re view

counter claim without stating a basis.
Be dell filed a notice of appea l f rom the Orde r on Plaintiff’s Plea to the J urisdiction on Def endant’ s Orig inal Counterclaim for Bill of Review

.

DISCUSSIO N
Be dell raises two issues on appea l: (1) whether t h e t rial court err ed in implicitl y deny ing his challeng es to the court’s jurisdiction over claims ag ainst him, (2) whether the trial court

err ed in g ranting the State’s plea to the jurisdiction on his counterclaim.

3I. Bedell’s challenge to jurisdiction of the claim s against h im
We lack jurisdiction to consider Be dell’s first issue. Parties ty pically may a

p p e a l o n ly from final order s o r judgme nts. Jack B. Anglin Co. v. Tipps , 842 S.W .2d 266, 272 (Tex. 1992).
I nterlocutory order s are appea lable only if specific ally authorized by statute. Id. at 272. We strictly

const rue the statute permitting interlocutory appea ls. See Tex. Civ. Prac. & Rem. Code An n . § 51.014 (West Supp. 2 011); see also Bally Total Fitness Corp. v. Jack son , 53 S.W .3d 352, 355 (Tex. 2001). Ther e is no final trial-cour t or der or judgme nt in the rec ord, and section 51.014 does

not permit an interlocutory appea l from the denial of an individual’s motions asser ting that the trial court lac ks jurisdiction over an a g ency ’s collec tion claims ag ainst him.

Be dell arg ues that our jurisdiction over the interlocutory appea l from the g rant of the
State’s plea to the jurisdiction ag ainst his counterc laim enable s us to c onsider other jurisdictional 1
issues fro m the trial court as well. Although we may consider jurisdictional challeng es for the
fi rst time on appea l, the case s he cites do not involve the statutorily limit ed interlocutory
appea l. See Methodist Hosps. v. Texas W orkers’ Comp. Comm’n , 874 S.W .2d 144 , 1 49 (Tex. App.—Austin 1994, no writ); Pacific Emp’rs Ins. Co. v. Twelve Oaks Med. Ctr. , No. 03-08-00059,
2010 WL 1511753 (Tex. App.—Austin Apr. 16, 2010, no pet.) (mem. op.). As the For t Worth court

A person may appea l from an interlocutory order that “g rants or den i es a p l ea to the 1 jurisdiction by a g overnme ntal unit.” Tex. Civ. Prac. & Rem. Code Ann. § 51. 0 1 4 (a )( 8) (West Supp. 2011). 4has written, “[a]n interlocutory order that is e x plicitly appea lable under section 51.014 may not be

used as a vehicle for car ry ing o t h er nonappea lable interlocutory order s to the appellate court.”
Astoria Indus. of

Iowa, Inc. v. SNF, Inc. , 223 S.W .3d 616, 627 n.24 (Tex. App.—For t Worth 2007, pet. denied)

. We la ck the power to c onsider on interlocutory appea l any denial of Be dell’s motion to dismi ss the State’s enf orce ment action.

II. Th e State ’s plea to the j urisdi ction on the counterc laim

By contra st, we undisputedly have jurisdiction to revie w the g rant of the State’s plea

to the jurisdiction on Be dell’s bill-of-re view counter claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (8). We revie w a trial court’s ruling on a plea to the jurisdiction under a de novo standard of revie w. Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). A plea to the jurisdiction can cha lleng e either the pleading s or the existence of jur isdictional f acts. Id. I f the plea to the jurisdiction c halleng es the pleading s, we deter mine whether the pleade r has alleg ed fac ts that aff

irmatively

demonstrate the trial court’ s jurisdiction to hear the case. Id. I f a plaintiff fails to plead sufficie nt fac ts aff irmatively demonstrating the trial court’s j u ri s d i ction, but the pleading s do not aff

irmatively demonstrate incura ble defe cts in jurisdiction, the issue is one of pleading , and the plaintiff should have an opportunity to am en d

. Id. at 226-27. Howeve r, if the pleading s aff

irmatively neg ate the exis tence of jurisdiction, a plea to the jurisdiction may be g rante d without allowing the pla intiff a cha nce to a mend. Id. at 227. The trial court her e g rante d the plea without specify

ing a basis, so we must aff irm if any o f the bases for the plea is valid. See Britton

v. Texas Dep’ t of Criminal Justice , 95 S. W

. 3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002,

5no pet.). We a re limit ed on interlocutory appea l to considering the issues raised at the trial court. 2
See Austin Indep. Sch. Dist. v. Lowery , 212 S.W .3d 827, 834 (Tex. App.—Austin 2006, pet. denied)

.

The State raised three g rounds in its plea to t h e jurisdiction: (1) Be dell failed to demonstrate a valid waiver of sovereig n immunit y , (2) Bede ll’s co u n t erc laim is an im permissible collater al attac k rec ast as a bill of re view, and (3) Be dell’s failure to join Br uce, a nece ssary party , rende rs his bill of revie w a collater al attack over which the trial court h as n o jurisdiction. Be dell replied that (1) the State waived its sovere ign immunit y from claims challeng ing the fee s awa rd by filing t h e collection sui t, (2) his counter claim i s a permissibl e direct attack, and (3) Br uce is not a

n ece ssary party to the bill of revie w beca use he has no rea l, prese nt interest in the Commi ssion’s final orde r. He reiter ates those a rg uments on appea l.
Sovereign im m uni ty

Be d el l ar g ues that the State waived its immunit y reg arding the bill of revie w challeng e to the Commi ssion’s order by suing to enfor ce the Commi ssion’ s order , citing Reata Constr. Corp. v. City of

Dallas , 197 S.W .3d 371, 375 (Tex. 2006). The State contends that Be dell’s bill of revie w is outside the Reata waiver -by -suit e x ception to sovere ign immunit y and that Be dell has failed to show that sovere ign immunit y has been waived. See Texas Natural Res. Conservation
Comm’n v. I

T-Davy , 74 S.W .3d 849, 855 (Tex. 2002).

Cf. FM Props. Operating Co. v

. City of Austin , 22 S.W .3d 868, 872 (Tex. 2000) (“When 2 the trial court does not specify the basis for its summary judgme nt, the appea ling pa rty must show on appea l that eac h independe nt g round alleg ed is insufficient to support the summary ju d gm en t g rante d”); N

o b i l i t y Homes, Inc. v. Shivers , 557 S.W .2d 77, 83 (Tex. 1977) (appe llant’s failure to challeng e sepa

rate and indepe ndent g round of r ecove ry for ne g lige nce r equire d aff irmance ). 6I n Reata , the supreme court held that g overnme ntal entities that sue in d iv id u a ls waive their immunit y from rela ted claims beca use they have decide d to set aside one o f t he main protec tions of sovereig n immunit y :
[I ]f the g overnme ntal entity interjec ts itself into or chooses to eng ag e in litigation to asse rt aff irmative claims for monetary damag es, the entity will presumably have made a decision to e x pend resour ces to pay litigation costs. I f the opposing party ’s claims can opera te only as an offse t to reduce t h e g overnme nt’s rec overy , no tax resour ces will be called upon to pay a ju d gment, and the fiscal planning of the go vernme ntal entity should not be disrupted. There fore , a deter mination that a g overnme ntal entity ’s i mmunity from sui t d o es not extend to a si tuation wher e the entity has filed suit is consistent with the policy issues involved with immunity

. I n this situation, we believe it would be fundame ntally unfair to a llow a g overnme ntal entity to asser

t aff irmative claims ag ainst a party while claiming it had immunit y as to the party ’s claims ag ainst it.

Reata , 197 S.W .3d at 375. The supreme court define d the limit ed waiver of immunit y as follows: 3

[T] he decision by the City of Dallas to file suit for damag es encompa ssed a decision to leave its sphere of immunit y from suit for claims ag ainst it which are g erma ne to, connec ted with and proper ly defe nsive to claims the City asser ts. Once it asser

ts aff irmative claims for moneta ry rec overy , the City must pa rticipate in the litigation proce ss as an ordinary litigant, save for the limit ation that the City continues to have immunit y fr o m aff

irmative damag e claims ag ainst it for monetary relief exceeding amounts nece ssary

to offset the City ’s claims.

Id. at 377. The State contends that the waiver theory from Reata does not e ncompass Be dell’s

counter claim beca

use he does not seek “true offse t.” Rather than try ing to use differ ent amounts the

Altho u gh t h e R ea ta case conce rned a city , not the State, that opinion does not hold or 3 intimate tha t the waiver -by -litiga tion c oncept applies differ ently to the State than it doe s to a city

. See ge nerally Reata Construction Corp. v. City of Dallas , 197 S.W .3d 371, 375 (Tex. 2006). 7State alleg edly owes him to reduc e the damag es he alleg edly owes the State, Be del l seeks to

eliminate the State’s damag e aw ard itself. The State contends that e limination i s not offset. 4

We do not find the holding of Reata so limit ed. The State’s interpre tation of Reata would cre ate a sy st em i n wh i ch a party deprive d of notice of an orig inal claim by the State could respond with rela ted claims, but could not fig ht the orig inal claim. That is contra ry to the equitable underpinning s of Reata and of bills of revie w in g ener al. The Reata opinion permits counter claims that are “g erma

ne to” or “conne cted with” the claims the State is asser ting aff irmatively ag ainst the claimant. What could be more g erma ne to or connec ted with a judgme nt than its own validity ? I n discussing offse t, the Reata court prese rves the waiver of immunit y from competing claims by the defe nse that would exceed the damag es rec overe d by the State. That limit ation provides a balanc e of equity betwee n individuals with otherwise noncompensa ble injuries inflicted by State actor s and protec tion of the State’s coff ers for the benef

it of all citizen s . R ea t a , 1 9 7 S.W .3d at 375. To
para phrase Reata , it would be fundame ntally unfa i r t o allow a g overnme ntal entity to asser t an aff irmative claim ag ainst a party while claiming it had immunit y as to the party ’s contention that the
State’s claim was established without notice t o o r participa tion by the party , and contra ry to the evidenc e the pa

rty would have pr esente d had it known of the unde rly ing pr ocee ding.
Be dell’s counter claim, by which he seeks to vacate and repla ce the order underly ing the penalties, is self-limiting to the amount of t he judgment. We conclude that he has shown that his bill-of- revie w counter claim is within the scope of the waiver of sover eig n immunit y descr ibed
in Reata

.

We addre ss the State’s contention t h at the counter claim is an impermissible collater al

4 attack a nd, as such, is not “prope rly defe nsive” to the State’s c laim, separately below. 8Collater al attack The State contends that Be dell has “re cast his impermissible collater al attack as a bill of revie w in order to make an end-r un around the trial court’s lack of subject matter jurisdiction” as well as the t rial court’s g rant of the S tate’s moti on for partial summary j u d gm ent. On appeal, t he
State enumer ates five theories as to why Be dell’s bill of revie w is an impermissible collater al attack

over which the trial court has no jurisdiction: (1) a bill of revie w must be broug ht as a separ ate lawsuit not as a counter claim, (2) allowing a bill of revie w to be used defe nsively in response to an enfor ceme nt action would cre ate an inconstruable evidentiar y standard, (3) the counter claim is not

a bill of revie w beca

use it was n o t i n stitut ed for the purpose of ref orming the final order , (4) the district court cannot conduct the revie w beca use it will violate separ ation of power s, (5) the bill of revie w should be ag ainst the Commi ssion, not the State. We cannot consider the first, second, and fourth theor ies bec ause the y wer e not ra ised at the trial c ourt. See Lowery , 212 S.W .3d at 834. 5

I n the event these issues can be deeme d so fundame ntal as to be revie wable for the 5 first time on appea l, we will briefly addre ss them: (1) We find no support for the prop o s i tion that, wher e the trial court has jurisdiction to g rant the relief reque sted and the nece ssary parties be fore it, the court neve rtheless lac ks jurisdiction over a bill of revie w when it is broug ht as a counter claim. The State relies on the supreme court’s statement that “a bill of re view is a separate proce eding from the underlying suit .” Ross v. National C tr. for the Emp’t of the Disabled , 197 S.W .3d 795, 798 (T ex . 2 0 0 6) (empha sis added)

. The State g ives insufficient weig ht to the final prepositional phrase in that quotation. This enfor ceme nt proce eding is a separ ate proce eding from the under l y i n g, ch all eng ed Commi ssion order or a direc t suit for judicial revie w ar ising fr om it. Filing the bill of re view within this sepa rate collection proce eding does not conflict with Ross

. (2) A possible difficulty rela ted to the application of different evidentiar y standards to differ ent issues within a single c ase doe s not impl icate the trial court’ s jurisdiction. (4) To the extent that judicial revie w impinges on separ ation of power s, it is authorized by statute. See Tex. Nat. Res. Code Ann. § 81.0533(e) (West 2011) (adopting proce dures in T ex. Gov’t Code 9The State urg es corr ectly that we cannot simply acc ept that Be dell’s counter claim is

truly a bill of revie w but must evalua te the pleading s. The State rea sons that Be dell seeks to avoid, rathe r than corr ect, the Commi ssion’s order and, there fore , that the counter claim is a collater al attack that the district court does not have the jurisdiction to enter tain. The State also emphasizes that the

counter claim ar ises in a suit that was broug ht to enforc e the Commission’s order, not cor rec t it.
Be dell’s counter claim rese mbles the descr iption the Texas Supreme Court provided for a bill of review:

A bill of revie w is an equitable proce eding to set aside a judgme nt that is not void on the fac e of the rec ord but is no longe r appea lable or subject to a motion for new trial. Bake r v. Goldsmith , 582 S.W .2d 404, 406 (Tex. 1979); Schwartz v. Jefferson , 520 S.W .2d 881, 889 (Tex. 1975). A bill of revi ew i s p ro p er wher e a party has exercised due dili gen ce t o prosec ute all adequate leg al reme dies ag ainst a former judgme nt, and at the time the bill of revie w is filed, there rema ins no such adequate leg al reme dy still available beca use, throug h no fault of the bill’s proponent, fra ud, acc ident, or mistake prec ludes prese ntation of a meritorious claim or defe nse. Bake r , 582 S.W .2d at 408. The g rounds upo n wh ich a bill of revie w can be obtained are narr ow beca

use the proce dure conflicts with the fundame ntal policy that judgme nts must b ec o m e fi n al at some point. Alexande r v. Hagedorn , 148 Tex. 565, 226 S.W .2d 996, 998 (1950); Crouch v. McG aw , 134 Tex. 633, 138 S.W .2d 94, 96 (1940) (noting that a bill of revie w require s “something more than injusti ce” ). Thus, a bill of revie w petitioner must ordinarily plead and prove (1) a meritorious defe nse to the cause of action alleg ed to support the judgme nt, (2) that the petitioner was preve nted from making by the fra ud, acc ident or wrong ful act of his or her opponent, and (3) the petitioner was not neg lige nt. A l ex a n der , 2 26 S.W .2d at 998. I f the complainant proves that he was not serve d with proce ss, howeve r, he is not require d to show either of the first two require ments, and his own want of fault or neg lige nce is established. Caldwell v. Barnes , 975 S.W .2d 535, 537 (Tex. 1998).

Ann. § 2001.176(a) (West 2008)). The State does n o t explain how a bill of revie w’s trea d is impermissibly broade r than a standard suit for judicial revie w. The State’s position could endorse unscrupulous ag ency

employ ees’ imposit ion of hug e fine s on unserve d, unsuspecting persons that wo u l d become unrevie wable thirty day s afte r they are imposed. The individuals’ constitu t i o n al rig hts to be free from unreasonable seizures and to due process before deprivation of proper ty are at least c ompetitive with concer ns for sepa

ration of powe rs of the br anche s of g overnme nt. 10King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 751-52 (Tex. 2003). The San Antoni o co u rt has

held that ag ency order s can be challeng ed by judicial bill of revie w when judicial revie w is otherwise authorized. See Gruber v. Texas State Bd. of Pharmacy , 619 S.W .2d 564, 567 (Tex. Civ. App.—San Antonio 1981, no writ). Tex as st atutes permit a party ag g rieve d by a C ommissi on order assessing

a penalty to seek judicial revie w by filing a petition in Travis County district court within thirty day s of the final decision. See Tex. Nat. Res. Code Ann. § 81.0533(e) (West 2011) (adopting proce dures
in Tex. Gov’t Code Ann. § 2001.176(a) (West 2008)). The Commi ssion order that Be dell seeks to challeng e was signe d May 9, 2002. This suit to enfor ce wa s fi l ed on Aug ust 6, 2010, and Be dell filed his counter claim on J une 13, 2011. Standard judicial revie w was no longe r available

. Be dell does not arg ue that the order is void on its fac e, but that the Commi ssion provided no notice to him. Aside from the fac t that i t s ee ks by judicial revie w to overturn an ag ency order , Be dell’s

counter claim fits the classic bill-of- revie w profile.

Contrary to t h e State’s contention, the relief Be dell seeks is consistent with his

counter claim being a bill of re view. A bill of review is instit uted t o corr ect an ear lier j udg ment or order and, there fore , is a direc t attack on t h e judgme nt. Sweetwater Austin Props., L.L.C

. v. SOS All i a n ce , Inc. , 299 S.W .3d 879, 885 (Tex. App.—Austin 2009, pet. denied) (other direc t attacks include appea ls and motions for new t ri al ). A collater al attack does not seek a corr ecte d, repla ceme nt judgme nt, but seeks to avoid the eff ect of the judgme nt. Id. By his counter claim,
Be dell contends that he was found liable without rec eiving notice o r p ar ticipating in the hear ing throug h no fault of his own. He contends that the order and judgme nt incorre ctl y hold him responsible for

plugg ing the wells and pay ing the penalties. Be dell does not seek me rely to avoid the eff ect of the Commi ssion’s or der, but w ants the order supplanted by a take- nothing judgme nt.
11This is a direct attack, essentially opera ting like a suit for judicial re view or a n appea l. Sovereig n immunit y is waived conce rning a b i l l o f revie w filed in a trial court seeking revie w of an ag ency order

. See ge nerally Gruber , 619 S.W .2d at 567.

The State contends that it reta ins sovere ign immunit y beca use the bill-of

-r eview

counter claim is improperly lodge d ag ainst the State rathe r than the Commi ssion. The State arg ues that it is a separ ate entity from the Commi ssion and that the Commi ssion is the proper party to 6
defe nd the order

. The State’s ar g ument ignor es the fac t that it filed this suit “on behalf of the 7
Commi ssion.” The State al s o i gn o re s the supreme court’s opinion that, by filing suit, the State waiv es s o v er ei g n immunit y from rela ted claims. See Reata , 197 S.W .3d at 375 (“it would be fundame ntally unfair to allow a g overnme ntal entity to asser t aff irmative claims ag ainst a party while claiming it had im munity as t o the par ty ’s claims ag ainst it”). B y filing suit seeking judgme nt for the administrative and c iv il penalties assessed as well as the rela ted plugg ing expenses and attorney ’s fee s, the State has waived sovere ign immunit y from Be dell’s counter claim by which he seeks to have the order underlying the State’s claim for penalties, plugg ing expenses, and attorney ’s fee s vacated and re place d by

a take nothing judg ment.

Nec essary part y

The State contends that Be d el l ’s fa t h er , Br uce, is a nece ssary party to the bill of revie w. A party who bring s a bill of revie w must join “all parties whose interests are such that they

See Ortiz Oil Co., In c. v. Railroad Comm’n , 62 S.W .2d 376, 378-79 (Tex. Civ. 6 App.—Texarkana

1933, no writ h.). See Tex. Nat. Res. Code Ann. § 85.241 (West 2011). 7 12would be, o r m i gh t b e, direc tly and materia lly aff ecte d” in order to make the attack a direc t one. Lowe v. Farm Credit Bank , 2 S.W .3d 293, 297 (Tex. App.—San Antonio 1999, pet. denied)

. Br uce undisputedly

is not a party

to the judgme nt Be dell is challeng ing, but the State c ites case s holding that nece ssary parties in a bill of revie w can exceed parties to the judgme nt, including the following parties: (1) all co-ma kers of a note in a bill to set aside defic iency judgme nt on that note, (2) curr ent 8

owner s of animals in a bill to set aside an order t h at co n fe rre d owner ship of the animals on that

curr ent owner , and (3) benef iciarie s of a trust established in a divorce proper ty settlement when one 9
former spouse challeng es the proper ty settlement

. T he State contends that Br uce’ s interests are 1 0
simil arly direc tly aff

ecte d beca

use “he will be responsible for [t he State’s] claims if it is deter mined [Bedell] is not t he oper ator of r ecor d.”

The State does not po i n t to any pleading or proof that the setting aside of the judgme nt ag ainst Be dell will, by itself, impose responsibility on Br uce a s a direc t result. Br

uce is

curr ently unencumbe red by any share of or conting ent responsibility for the judgme nt. Unlike with

t h e parties in the case s the State cites—a co-ma ker of a note whose liability would incre ase if a defic iency judgme nt ag ainst another co-ma ker is set aside, an animal owner whose owner ship would be voided if the judgme nt awa rding it owner ship is set aside, or the benef iciarie s of a trust that might be voided o r h av e its principal reduc ed if the proper ty settlement cre ating the trust is set

See Lowe v. Farm Credit Bank , 2 S.W .3d 293, 297 (Te x . Ap p .—San Antonio 1999, 8 pet. denied)

. See Chambe rs v. Perry , No. 05-09-00407- CV, 2010 Tex. App. L EXI S 2054, a t *5 (Tex. 9 App.—Dallas Ma

rch 24, 2010, w rit dism’d w.o.j.) (mem. op.). See Neill v. Neill , 386 S.W .2d 642, 645 (Tex. Civ. App.—Austin 1965, wr i t 1 0 dism’d w.o.j.). 13aside —setting aside the judgme nt ag ainst Be dell will not automatically impose responsibility for 1 1
the penalties and expenses on Br uce. To do s o , t h e C o m m i ssion would have to initiate a claim
ag ainst Br uce and prove his responsibility for the penalties and expenses. Be cause Br uce’ s interests will not be directly aff

ecte d if the j udg ment ag ainst Be dell is s et aside, he is not a necessar y party to the bill of revie w. Be cause he is not a nece ssary party , Br uce’ s absenc e did not conver t this bill of re view into an impermissible collater al attac k and strip the trial c ourt of jurisdiction.

CONCLUSION
We reve rse the Orde r on Plaintiff’s Plea to the J urisdiction on Def endant’ s Orig inal
Cou n t er cl ai m fo r Bill of R eview and render a decision deny ing that plea. We lack jurisdiction to otherwise opine on any action by the trial court. The case may resume in the tri al co u rt ab s en t further action by the par ties or by the Texas Supreme Court.

J eff Rose, J ustice
Be fore J ustices Pury ear , Rose, and Goodwin
Reverse d and Rende red in pa rt; Dismissed in part Filed: Jul y

6, 2012

See L o w e , 2 S

. W.3d at 297; Chambers , 2010 Tex. App. L EXI S 2054, at *5; Neill , 1 1 386 S.W .2d at 645-46. 14