TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00602-CV

Alexander Sonnenschein, Appellant

v. 

Augustin Rivera, Jr.; Teresa Ereon Giltner; Harold Odom; Barbara Ellis; 

Anna M. McKim; Cynthia Eva Hujar Orr; C. Alfred Mackenzie; Dwaine M. Massey; and 

Carlos R. Soltero; In Their Official Capacities as Members of the Texas Board of Law 

Examiners, Appellees 

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-007213, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING

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

Dr. Alexander Sonnenschein (Sonnenschein) sued the members of the Texas Board 

of Law Examiners (Board Members)1 in their official capacities after the Board denied his request 

to be admitted to the Texas Bar without taking the bar examination.2 Sonnenschein asserted ultra 

vires claims against the Board Members, who filed a plea to the jurisdiction arguing that the trial 

court lacked subject-matter jurisdiction over the suit. The trial court granted the plea, and 

Sonnenschein appealed. For the following reasons, we affirm the trial court’s order on all claims 

1 Board Members are Augustin Rivera, Jr., Teresa Ereon Giltner, Harold Odom, 

Barbara Ellis, Anna M. McKim, Cynthia Eva Hujar Orr, C. Alfred MacKenzie, Dwaine M. Massey, 

and Carlos R. Soltero. 

2 Sonnenschein also sued Executive Director of the Board Susan Henricks, and Eligibility 

Director of the Board Nahdiah Hoang, but dismissed them in his amended notice of appeal. 
2 

except those alleging violations of Sonnenschein’s rights to equal protection, which claims we 

reverse and remand to the trial court to allow Sonnenschein an opportunity to amend his pleadings 

to allege sufficient facts to support them.3

BACKGROUND

 In 2012, Sonnenschein earned a J.D. from Northwestern California University 

(NWCU) School of Law, a non-ABA-approved law school that was “registered and regulated” by 

the State Bar of California although not “accredited” by that state. The California Bar nonetheless 

authorized NWCU law school graduates to sit for the California Bar Exam after successfully 

passing the state’s First-Year Law Students’ Examination and completing a four-year course of 

study. After graduating, Sonnenschein passed the California Bar Exam on his first effort and 

obtained a California law license in December 2012.

 Shortly thereafter, Sonnenschein moved to Massachusetts where he sought 

admission to the state’s bar. The Massachusetts Board of Bar Examiners permitted Sonnenschein 

to take the February 2013 Massachusetts Bar Exam by waiving its requirement that applicants be 

3 Sonnenschein filed this suit on November 24, 2020. Sonnenschein’s wife, 

Deborah Sonnenschein, also graduated from Northwestern California University (NWCU) in 2012 

and submitted an application for admission to the Texas Bar, which was similarly denied. She 

filed a separate but nearly identical lawsuit the same day as Sonnenschein, alleging identical causes 

of action against the same defendants. In that case, the trial court granted the Board Members’ 

plea as to the claims against Henricks and Hoang, but denied the Board Members’ plea to the 

jurisdiction in all other respects. The Board Members appealed, and this Court reversed the trial 

court’s order and rendered judgment on all claims except Ms. Sonnenschein’s claims for violation 

of her rights to equal protection, which we remanded to the trial court to provide her the 

opportunity to plead facts that affirmatively establish subject-matter jurisdiction. See Rivera 

v. Sonnenschein, No. 03-21-00516-CV, 2022 WL 1751685, at *1 (Tex. App.—Austin, June 1, 2022,

pet. denied) (mem. op). Because both suits allege the same causes of action and seek the same 

relief, our analyses here are identical to those set forth in No. 03-21-00516-CV, unless otherwise 

specifically stated.
3

graduates of law schools that are either ABA-approved or authorized by the Commonwealth of 

Massachusetts. Sonnenschein passed that exam on his first effort and obtained a Massachusetts 

law license in June 2013. Thereafter, Sonnenschein and his wife established a Massachusetts law 

firm and practiced law for more than five years.

In late 2018, the Sonnenscheins moved to Texas and, since Spring 2019, both have 

been providing pro bono legal representation to low-income Texas clients via Volunteer Legal 

Services of Central Texas, as authorized by the Texas State Bar under its New Opportunities 

Volunteer Attorney (NOVA) pro bono program for attorneys licensed in other states.

In April 2019, Sonnenschein submitted to the Board an application to be admitted 

to the Texas Bar without examination (commonly called an AWOX application) pursuant to Rule

13, Section 1 of the Rules Governing Admission to the Bar of Texas (Rules), which then provided, 

An Applicant who is authorized to practice law in another state must 

meet the requirements imposed on any other Applicant under 

these Rules, except that the Applicant is exempt from the 

requirement of successfully completing the Texas Bar Examination 

if the Applicant:

(a) has been actively and substantially engaged in the lawful 

practice of law as the Applicant’s principal business or 

occupation for at least five of the last seven years immediately 

preceding the filing of the Application;

(b) has a J.D. degree from an approved law school; and

(c) has not failed the Texas Bar Examination.

Tex. Rules Govern. Bar Adm’n R. 13, § 1 (Sept. 8, 2017), amended eff. Dec. 1, 2019. In 

August 2019, the Board declared Sonnenschein’s AWOX application ineligible because he did not 

meet Rule 13, Section 1(b)’s requirement that he have a J.D. from an ABA-approved law school 

(the law-study requirement). See id. R. 1(a)(4) (defining “approved law school” as “a law school 
4

approved by the American Bar Association”). In response, Sonnenschein requested a waiver under 

Rule 20, asking the Board to waive the law-study requirement for his AWOX application. In 

support of the waiver request, Sonnenschein provided documentation and a memo, including a 

reference to a “similarly situated applicant” who in 2017 was granted “essentially the same waiver” 

and admitted to the Texas Bar. See id. R. 20(e) (granting Board “discretion in the interpretation 

and application of these Rules” and providing that for “good cause shown to the satisfaction of the 

Board,” “waivers of specific requirements described in these Rules may be granted, unless it 

appears therefrom that no exceptions are contemplated by the Supreme Court”). The Board 

scheduled Sonnenschein’s waiver request to be considered at a public meeting in September 2019.

At the public meeting, before a three-member panel considering waiver requests, 

Sonnenschein (who is white) and his wife (who is Black) appeared and spoke in support of their 

similar requests. Later that month, the Board issued its final decision denying Sonnenschein’s 

waiver request and terminating his AWOX application. Sonnenschein filed a motion for rehearing 

with the Board, “in the erroneous belief that the Board was subject to the Texas Administrative 

Procedure Act (‘APA’).” In October 2019, Susan Henricks, the Board’s Executive Director, sent 

Sonnenschein a Summary Letter explaining why he did not qualify for admission without taking 

the bar examination under Rule 13—because “the JD [he] earned at an unaccredited [online]school 

does not satisfy the education requirements” of the rule. In the letter, the Board explained that it 

had not yet developed AWOX waiver-request licensing guidelines mandated by Texas 

Government Code Section 82.039; 4 that it was not subject to the APA; that its decision was “final 

4 Sonnenschein alleged that the Board Members violated Section 82.039 of the 

Government Code by failing to develop specific guidelines for granting waiver requests. See Tex. 

Gov’t Code § 82.039(a) (“To assist the Board of Law Examiners in making consistent and fair 
5

and unappealable”; and that even under the impending revised rules (effective December 1, 2019), 

Sonnenschein would not meet the law-study requirement to take the Texas bar exam because 

NWCU’s law school, while “state-authorized,” was not “state-accredited.” See id. R. 13, § 2 

(providing exemption from Rule 3’s law-study requirement for applicant authorized to practice 

law in another state who holds J.D. “from an unapproved law school that is accredited in the state 

where it is located”). The Board further explained that even if NWCU were to meet the definition 

of “state-accredited”, it would still be ineligible to satisfy the law-study requirement because 

Sonnenschein’s J.D. was earned through primarily online courses. See id. § 5 (“No Degree by 

Correspondence”) (precluding applicant from satisfying law-study requirement “with a J.D. 

obtained primarily through online courses or other distance learning methods.”).

Sonnenschein brought ultra vires claims against the Board Members for allegedly 

violating Texas Government Code Section 82.039, Texas Civil Practice and Remedies Code 

Subsection 106.001(a)(1), and his Texas constitutional rights to equal protection and procedural 

and substantive due course of law.5 He sought declaratory relief, seeking a declaration that 

graduates of law schools such as NWCU’s be treated by the Board as “on par with graduates of 

state-accredited law schools from other jurisdictions.” He also sought injunctive relief requiring 

the Board to develop specific guidelines for granting AWOX waiver requests and to approve his 

determinations related to the licensing of attorneys in this state, the board shall develop specific 

guidelines for . . . granting waiver requests.”).

5 Although Sonnenschein did not use the phrase “ultra vires” in his petition, he cited City 

of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009), in support of the trial court’s 

jurisdiction. That case explained that ultra vires suits seeking to compel officials to comply with 

statutory or constitutional provisions or asserting that officials acted without legal authority or 

failed to perform a purely ministerial act are not barred by sovereign immunity. See Heinrich, 

284 S.W.3d at 372.
6

AWOX application. The Board Members filed a plea to the jurisdiction, arguing, among other 

things, that Sonnenschein had not stated a viable ultra vires claim against the Board Members and 

that he failed to show the violation of—or even the existence of—a constitutionally protected right. 

The trial court granted the Board Members’ plea, dismissing Sonnenschein’s claims in their 

entirety and rendering judgment in favor of the Board Members. This appeal followed.

DISCUSSION

A plea to the jurisdiction challenges a court’s jurisdiction to hear the case. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction 

is a dilatory plea that challenges the trial court’s subject-matter jurisdiction without regard to 

whether the asserted claims have merit. See Harris County. v. Sykes, 136 S.W.3d 635, 638 

(Tex. 2004); see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether

a pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter

jurisdiction is a question of law reviewed de novo. See Miranda, 133 S.W.3d at 226. The burden 

is on the plaintiff to affirmatively demonstrate the trial court’s jurisdiction. See Heckman 

v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). In reviewing a plea to the jurisdiction, 

we begin with the plaintiff’s live pleadings and determine if the plaintiff has alleged facts that 

affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See Miranda, 133 S.W.3d 

at 226. In making this assessment, we construe the plaintiff’s pleadings liberally, taking all 

assertions as true, and look to the plaintiff’s intent. Id. If a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we may consider evidence and must do so when necessary to 

resolve the jurisdictional issues raised. Id. at 227; see also Bland Indep. Sch. Dist, 34 S.W.3d at 

555. “Our ultimate inquiry is whether the plaintiff’s pleaded and un-negated facts, taken as true 
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and liberally construed with an eye to the pleader’s intent, would affirmatively demonstrate a claim 

or claims within the trial court’s jurisdiction.” Brantley v. Texas Youth Comm’n, 365 S.W.3d 89, 

94 (Tex. App.—Austin 2011, no pet.). Courts must consider only the plaintiff’s pleadings and the 

evidence pertinent to the jurisdictional inquiry and take care not to weigh the merits of the case. 

See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

Due course of law claims

In his first two causes of action, Sonnenschein alleged that the Board Members

violated his Texas constitutional rights to substantive and procedural due course of law in the 

pursuit of his “liberty interest to practice his profession.”6 See Tex. Const. art. I, §§ 19 (“No citizen 

of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner 

disenfranchised, except by the due course of the law of the land.”), 29 (providing that Bill of Rights 

(Sections 1–35) “shall forever remain inviolate” and all laws contrary thereto “shall be void”); Ho 

v. University of Tex. at Arlington, 984 S.W.2d 672, 683 (Tex. App.—Amarillo, 1998) (pet. denied) 

(noting that substantive component of due course of law guarantee protects citizens from state 

action that arbitrarily or capriciously deprives them of interest in life, liberty, or property). 

However, as the Board Members argued in their plea to the jurisdiction, before due process rights 

6 In his petition, Sonnenschein specified that he “only alleges state law claims” and 

“specifically excludes . . . any federal cause of action” including those arising under the federal 

Constitution. We note that Texas courts evaluate equal protection challenges under the Texas 

Constitution using the same standard for equal protection challenges brought under the federal 

Constitution, see Bell v. Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002), and due 

course of law claims under the Texas Constitution using the same standard as that applied to due

process claims under the federal Constitution, University of Tex. Med. Sch. at Hous. v. Than, 901 

S.W.2d 926, 929 (Tex. 1995).
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attach, a citizen must identify the liberty or property interest that is entitled to constitutional 

protection. See Honors Acad. Inc. v. Texas Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018).

The record demonstrates that Sonnenschein failed to identify any legally protected 

liberty or property interest in his petition or response to the Board Members’ plea to the jurisdiction 

and has failed on appeal to cite any authority supporting his contention that he has a 

constitutionally protected interest in obtaining a Texas law license. Rather, he has no right—

liberty or otherwise—to be admitted to the Texas Bar except in conformity with the Supreme 

Court’s Rules. See Tex. Gov’t Code §§ 82.001 (“The supreme court shall appoint the members of 

the [B]oard.”), .004 (“The Board, acting under instructions of the supreme court as provided by 

this chapter, shall determine the eligibility of candidates for examination for a license to practice 

law in this state . . . [and] shall examine each eligible candidate as to the candidate’s qualifications 

to practice law.”), .021 (“Only the supreme court may issue licenses to practice law in this state as 

provided by this chapter. The power may not be delegated.”), .022 (“The supreme court may adopt 

rules on eligibility for examination for a license to practice law . . . .”). The practice of law is a 

profession and a privilege that the United States Supreme Court has identified as one for which a 

state “can require high standards of qualification, such as good moral character or proficiency in 

its law, before it admits an applicant to the bar.” See Schware v. Board of Bar Exam’rs of State of 

New Mexico, 353 U.S. 232, 239 (1957); see also Hankamer v. Templin, 187 S.W.2d 549, 551 (Tex. 

1945) (“[T]he right to practice law is not a personal right, but a franchise, or privilege[.]”); State 

v. Arnett, 385 S.W.2d 452, 454 (Tex. App.—San Antonio 1964, writ ref’d) (“The right to practice 

the profession of law is a very great privilege.”).

Because Sonnenschein did not identify any constitutionally protected property or 

liberty interest, he has not alleged a viable claim for violation of substantive due course of law, 
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and the trial court did not err in granting the Board Members’ plea to the jurisdiction as to that 

cause of action. See Honors Acad., 555 S.W.3d at 61. For the same reason, the trial court did not 

err in dismissing his claims for violation of his procedural right to due course of law. See Texas 

S. Univ. v. Villarreal, 620 S.W.3d 899, 905 (Tex. 2021) (noting that to determine whether 

governmental action violates due course of law guarantee, courts first ask whether plaintiff has 

liberty or property interest that is entitled to protection and, if so, whether government defendant 

followed due course of law in depriving plaintiff of that interest); Than, 901 S.W.2d at 929 (“The 

requirements of procedural due process apply only to the deprivation of interests protected under 

Article I, Section 19.”).

Tex. Gov’t Code § 82.039(a)

Within his first, second, and third causes of action, Sonnenschein alleged that the 

Board Members violated Section 82.039 of the Texas Government Code by failing to develop 

specific guidelines for granting waiver requests. See Tex. Gov’t Code § 82.039(a) (“To assist the 

Board of Law Examiners in making consistent and fair determinations related to the licensing of 

attorneys in this state, the board shall develop specific guidelines for . . . granting waiver 

requests.”). Sonnenschein does not have standing to pursue his ultra vires claims against Board 

Members arising from their alleged violation of Section 82.039. While that section provides that 

the Board “shall develop the [required] guidelines . . . based on [its] past decisions and on any 

other criteria [it] considers necessary,” it also provides that the Board is “not required to take any 

specific action provided in the guidelines.” See Tex. Gov’t Code § 82.039(b). To have standing 

under the facts alleged, Sonnenschein must have a concrete or particularized stake in the 

declaration he sought that the Board Members acted ultra vires by failing to develop guidelines 
10

specific to waiver requests and that such declaration and any related injunctive relief will redress 

his alleged injury. See Garcia v. City of Willis, 593 S.W.3d 201, 207 (Tex. 2019). The very statute 

that Sonnenschein contends the Board Members violated—by not developing guidelines to use in 

evaluating waiver requests—provides Board Members with complete discretion in determining 

whether to grant waiver requests—by stating that, regardless of what the guidelines provide, the 

Board is not required to take any specific action. Therefore, Sonnenschein cannot demonstrate 

any legal injury, much less that the Board’s development of such guidelines would redress any 

alleged past injury. See Suarez v. Silvas, No. 04-21-00113-CV, 2022 WL 379965, at *9 (Tex. 

App.—San Antonio Feb. 9, 2022, pet. denied.) (mem. op.) (holding that plaintiff did not have 

standing to pursue ultra vires claim because she did not plead facts to show (1) concrete and 

particularized or actual or imminent injury or (2) that her requested prospective relief would likely 

redress her past injury). Accordingly, the trial court lacked subject-matter jurisdiction over 

Sonnenschein’s Section 82.039 claim and therefore did not err in granting the Board Members’ 

plea on this claim.

Equal protection claims

In his third and fourth causes of action, Sonnenschein alleged, respectively, that the 

Board Members violated his Texas constitutional and statutory rights to equal protection by 

(a) engaging in “apparent invidious discrimination due to his interracial marriage and national 

origin” through their “grossly disparate treatment” of him and a similarly situated prior applicant 

and (b) failing to treat his law study as equivalent to that of previous applicants who also had 

graduated from non-ABA-approved law schools but were nonetheless granted admittance to the 

Bar. See Tex. Const. art. I, §§ 3 (“All free men, when they form a social compact, have equal 
11

rights . . . .”), 3a (“Equality under the law shall not be denied or abridged because of sex, race, 

color, creed, or national origin.”); Tex. Civ. Prac. & Rem. Code § 106.001(1) (prohibiting state 

officials and employees from refusing to issue license, permit, or certificate “because of a person’s 

race, religion, color, sex, or national origin”).

As to his third cause of action, he alleged the following facts: that the Board 

Members approved the waiver request for an AWOX application of a white male in 2017 who had 

graduated from “the same category of California-registered-unaccredited law schools” that he had 

graduated from but that the Board denied his substantially similar waiver request and AWOX 

application “due to” his interracial marriage and national origin. As to his fourth cause of action, 

Sonnenschein alleged that the Board Members have “previously accepted the law study of 

graduates of non-ABA-approved state-authorized law schools in Alabama, Massachusetts, [and] 

California” but declined to accept his law study of the same type, which violated his right to equal 

protection under the law, regardless of whether Board Members based their decision on a suspect 

classification (e.g., race or sex).7

The Board Members argued in their plea to the jurisdiction that Sonnenschein had 

not alleged sufficient facts to demonstrate the trial court’s jurisdiction over his claim that they 

violated his rights to equal protection. Furthermore, they argued, Sonnenschein could not allege 

sufficient facts to support his claims because their denial of his AWOX application and request to 

7 In his petition, he further explained that California “regulates local non-ABA-approved

law schools of two types: ‘accredited’ schools, whose students must complete a 3-year study 

program, and ‘registered unaccredited’ schools, whose students are required to first pass the 

First-Year Law Students’ Exam (‘Baby Bar’) before completing a 4-year study program.” He 

alleged that “California regards graduates of both types of schools, as well as graduates of 

ABA-approved schools, as being on an equal footing with regard to being authorized to take the 

California Bar Exam and, upon passing the exam, being admitted to the California Bar.”
12

waive the law-study requirement was the “expected result of uniform application of the Rules,” 

which unequivocally provide that a J.D. obtained primarily through online courses or other 

distance-learning methods—as Sonnenschein’s was—does not meet the law-study requirement. 

See Tex. Rules Govern. Bar Adm’n R. 13, § 5 (Sept. 8, 2017), amended eff. Dec. 1, 2019 (current 

version appearing as R. 13, § 6) (“A J.D. degree or an equivalent degree completed at a foreign 

law school that is earned primarily through online courses or other distance learning-learning 

mediums does not satisfy the requirements of this Rule.”). However, despite Rule 13’s provision 

that applicants from jurisdictions other than Texas may not satisfy the law-study requirement with 

a J.D. earned “primarily through online learning,” we do not agree with the Board Members that 

the existence of such provision precludes, as a matter of law, an equal protection claim. 

Sonnenschein is contending that the Board Members did not uniformly apply this provision to his 

application as compared to those of others similarly situated, a colorable claim falling under 

protection of the equal protection clauses.8 See Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 

1985) (“Under the rational basis test . . . similarly situated individuals must be treated equally 

under the statutory classification unless there is a rational basis for not doing so.”); see also 

Lindquist v. City of Pasadena, 525 F.3d 383, 386–87 (5th Cir. 2008) (recognizing that equal

protection guarantee extends to claims of intentional, differential treatment of person from others 

similarly situated when there is no rational basis for difference, such as city’s refusal to grant 

used-car-dealer license to plaintiff while granting them to others similarly situated); Combs v. STP 

Nuclear Operating Co., 239 S.W.3d 264, 275 n.13 (Tex. App.—Austin 2007, pet. denied) 

8 Sonnenschein also contests the Board’s construction of the “no degree by 

correspondence” provision (Rule 13 § 5)—arguing that “foreign” refers to non-U.S. jurisdictions 

rather than other states—but we need not resolve this legal question at this stage.
13

(“Claims of selective or discriminatory enforcement fall within the scope of the constitutional 

guarantee of equal protection under the law.”).

The elements of a claim for violation of the equal protection clause based on a 

party’s membership in a protected class are that the challenged act had a disproportionate impact 

on a protected class and had a discriminatory intent or purpose. See Richards v. League of United 

Latin Am. Citizens (LULAC), 868 S.W.2d 306, 312 (Tex. 1993); Ho, 984 S.W.2d at 685 (“Proof 

of discriminatory intent or purpose is required to show a violation of the Equal Protection 

Clause.”). In his third cause of action, Sonnenschein alleges the Board Members discriminated 

against him because of his national origin and interracial marriage. While he has alleged that he 

is a member of a protected class, he has not alleged any discriminatory intent or disparate impact 

on a protected class—rather, he makes the conclusory allegation of “apparent invidious 

discrimination.” The only mention of Sonnenschein’s national origin is one sentence in his petition 

stating he immigrated to the United States from Poland at the age of seven. Construing the 

pleadings liberally in favor of jurisdiction and accepting the allegations in Sonnenschein’s 

pleadings as true, as we must do under a de novo review of a ruling granting a plea to the 

jurisdiction, we cannot say that he has alleged sufficient facts to affirmatively demonstrate that the 

trial court has jurisdiction to hear his equal protection and Section 106.001 claims of alleged 

national origin or racial discrimination based on his interracial marriage. See Miranda, 

133 S.W.3d at 226 (Tex. 2004). However, we cannot conclude that his petition affirmatively 

demonstrates incurable defects of jurisdiction. See id. at 226–27. Accordingly, although the trial 

court did not have jurisdiction over Sonnenschein’s equal protection and Section 106.001 claims 

based on national origin or racial discrimination as pleaded, Sonnenschein should be afforded the 

opportunity to amend his pleadings with respect to those claims. See id.; see also Port of 
14

Corpus Christi, LP v. Port of Corpus Christi Auth. of Nueces Cnty., No. 13-19-00378-CV, 

2021 WL 2694772, at *12–13 (Tex. App.—Corpus Christi–Edinburg Jul. 1, 2021, no pet.) (mem.

op.) (concluding that trial court erred in dismissing equal protection claim without affording 

plaintiff opportunity to amend pleadings that did not contain sufficient facts demonstrating 

elements of claim but that did not affirmatively demonstrate incurable defects); City of New 

Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 518 (Tex. App.—Austin 2014, no pet.) 

(remanding to allow plaintiff reasonable opportunity to amend pleadings to cure jurisdictional 

defect as to equal protection claim where petition was “insufficient to invoke the district court’s 

subject-matter jurisdiction” but did not “affirmatively negate jurisdiction either”).

As to Sonnenschein’s fourth cause of action—an equal protection claim arising 

from the Board Members allegedly treating him differently from other similarly situated 

individuals with respect to the type of law study they completed—we similarly conclude that he 

has not alleged sufficient facts to affirmatively demonstrate that the trial court has jurisdiction. 

See Miranda, 133 S.W.3d at 226. Specifically, he does not allege facts showing that he was 

similarly situated to other applicants in all material ways or that the Board Members treated him 

differently without a reasonable basis. 9 See Texas Dep’t of Transp. v. City of Sunset Valley, 

146 S.W.3d 637, 647 (Tex. 2004) (noting that to bring individual equal protection claim, plaintiff 

must demonstrate that she was intentionally singled out and treated differently from others 

similarly situated); City of Floresville v. Starnes Inv. Grp., LLC, 502 S.W.3d 859, 868 (Tex. 

9 For instance, he did not allege whether such other “similarly situated” graduates of 

“non-ABA-approved state-authorized law schools” who submitted AWOX applications, 

completed their law studies “primarily through online courses,” were permitted to take the Texas 

Bar despite not meeting the law-study requirement, or met the other requirements of admission to 

the Bar.
15

App.—San Antonio 2016, no pet.) (reversing trial court’s denial of plea to jurisdiction as to equal

protection claim because pleading made mere conclusory statement that plaintiff was treated 

differently from others similarly situated but did not allege any facts describing how parties were 

similarly situated or nature of alleged different treatment); Sanders v. Palunsky, 36 S.W.3d 222, 

225 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]o assert an equal protection claim [that 

is not based on a suspect class], the deprived party must establish two elements: (1) that he was 

treated differently than other similarly-situated parties; and (2) he was treated differently without 

a reasonable basis.”); see also John Corp. v. City of Houston, 214 F.3d 573, 577 (5th Cir. 2000) 

(“The Equal Protection Clause protects individuals from governmental action that works to treat 

similarly situated individuals differently.”). Accordingly, Sonnenschein’s pleadings, on their face, 

failed to invoke the trial court’s jurisdiction. However, we again cannot conclude that his 

pleadings affirmatively demonstrate incurable defects of jurisdiction. See Miranda, 133 S.W.3d 

at 226–27. Because this is an issue of pleading sufficiency, we must remand this claim to the trial 

court to afford Sonnenschein the opportunity to amend his pleadings to sufficiently invoke the trial 

court’s jurisdiction. See id.; City of Austin v. Cherry, No. 03-14-00212-CV, 2015 WL 4508819, 

at *2 (Tex. App.—Austin July 21, 2015, no pet.) (mem. op.) (reversing trial court’s order denying 

city’s plea to jurisdiction and remanding cause to allow plaintiff to amend pleadings that were 

insufficient to affirmatively demonstrate jurisdiction but did not demonstrate incurable defects 

in jurisdiction).

Uniform Declaratory Judgment Act (UDJA) claims

Lastly, Sonnenschein sought the following declarations under Chapter 37 of the 

Civil Practice and Remedies Code: (1) Sonnenschein “has the right to judicial appeal of [Board 
16

Members’] decisions . . . that allegedly violate Texas constitutional or statutory provisions,” 

(2) Board Members’ “willful failure to develop and use” the guidelines prescribed by Government 

Code Section 82.039 caused their evaluation of Sonnenschein’s waiver request “to be unlawful,” 

and (3) Sonnenschein’s “status as a graduate of a California-registered law school should be 

deemed equivalent to that of a graduate of a non-California state-accredited law school and thereby 

accepted as sufficient under the law-study exception.” See Tex. Civ. Prac. & Rem. Code 

§ 37.004(a) (“A person . . . whose rights, status, or other legal relations are affected by a statute . . . 

may have determined any question of construction or validity arising under the . . . statute . . . and 

obtain a declaration of rights, status, or other legal relations thereunder.”). The Board Members

contended in their plea to the jurisdiction that these claims must be dismissed because in essence 

they constitute rule challenges, which must be filed against the Board. See Tex. Gov’t Code 

§ 2001.038(c) (requiring state agency to be party to rule challenge); see also B.C. v. Steak N Shake 

Operations, Inc., 512 S.W.3d 276, 283 (Tex. 2017) (“The gravamen of a claim is its true nature, 

as opposed to what is simply alleged or artfully pled, allowing courts to determine the rights and 

liabilities of the involved parties.”).

As to his first and third requested declarations, Sonnenschein does not cite any 

statute affecting his “rights, status, or other legal relations.” See Tex. Civ. Prac. & Rem. Code 

§ 37.004(a). His sought declarations are therefore not within the scope of the UDJA. See id.; 

Tijerina v. Texas Prop. Cas. Ins. Guar. Ass’n, No. 03-13-00300-CV, 2015 WL 869344, at *3 & 

n.6 (Tex. App.—Austin Feb. 26, 2015, pet. denied) (mem. op.) (concluding that when plaintiff had 

not challenged validity of any statute or sought declaration of rights thereunder but merely 

challenged agency’s actions, UDJA did not apply, although plaintiff could assert ultra vires claims 

against state actors in their official capacities). Furthermore, his first sought declaration would not 
17

resolve any controversy between him and the Board Members because—notwithstanding the 

absence of any statute providing him a right to judicial review of the Board’s decision—it is settled 

law that he may sue the Board Members for their alleged ultra vires actions, which is what he has 

done through this lawsuit. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009). 

And, as the Board Members argued in their plea to the jurisdiction, the gravamen underlying 

Sonnenschein’s third requested declaration is that the Board Members have allegedly misconstrued 

or misapplied the Rules, a type of challenge that falls under the APA and for which a UDJA claim 

would be redundant and thus jurisdictionally barred, see Texas Dep’t of State Health Servs. 

v. Balquinta, 429 S.W.3d 726, 746–47 (Tex. App.—Austin 2014, pet. dism’d), and which must be 

brought against the Board in any event, see Tex. Gov’t Code § 2001.038(c).

While as to his second requested declaration Sonnenschein cites a statute—

Government Code Section 82.039—that he contends affects his “rights, status, or other legal 

relations,” see Tex. Civ. Prac. & Rem. Code § 37.004(a), we have already determined that he does 

not have standing to pursue a claim for the declaration because he cannot show that obtaining it 

will redress any past or imminent injury, given that Board Members have absolute discretion to 

decide waiver requests irrespective of the guidelines’ provisions. We conclude, therefore, that the 

trial court did not err in granting the Board Members’ plea to the jurisdiction as to Sonnenschein’s 

UDJA claims.

CONCLUSION

We affirm the trial court’s order granting the Board Members’ plea to the 

jurisdiction and rendering judgment in their favor in all respects except for Sonnenschein’s claims 

for violations of his rights to equal protection, which claims we reverse and remand to the trial 
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court to allow Sonnenschein an opportunity to amend his pleadings to invoke the trial court’s 

subject-matter jurisdiction and for further proceedings consistent with this opinion.

__________________________________________

Edward Smith, Justice

Before Chief Justice Byrne, Justices Kelly and Smith

Affirmed in Part; Reversed and Remanded in Part

Filed: November 30, 2023