### 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. 03-16-00291- CV

Of fi ce of the Com ptroller of P ubl ic Acc ounts f or the Stat e of Texas; Gle nn H egar, Ind ividu ally and in h is Of fi cial Capacity as Com ptroller of P ubl ic Acc ounts of the State of Texas; and Ken P axton, Attor ney Ge neral of Texas, App ellants

v. F arshid E nterprises, L.L.C.; and Abul Hasnat, App ellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 6-0 0063 0, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

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

The Offic e of the Comptroller of Public Acc ounts for the Stat e o f T ex as; Glenn Heg ar, I ndividually and in his Offic ial Capac ity as the Comptroller of Public Acc ounts of the
State of Texas; a

nd Ken Paxton, Attorney

Gene ral of T exas, appea l the trial court’s denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8). For the following rea sons,

we aff irm the trial court’s order deny ing appellants’ plea to the jurisdiction with respe ct to appellee s Fa rshid Enterpr ises, L .L .C. and Abul Hasna t’s claims that challeng e the constitutionalit y of sections of the Texas T ax Code to the extent that they seek e quitable re lief. We, howeve r, re verse the trial
court’s order deny ing the plea to the jurisdiction with respe ct to appellee s’ rema i n i n g claims and dismiss those claims for la ck of subjec t matter jurisdiction.BACK GR OUND
Fa rshid Enterpr ises owns and opera tes convenie nce stores, and Abul Hasna t is the president and sole office r of Fa rshid Enterpr ises. The Comptroller audited Fa rshid Enterpr ises’s

co n venienc e stores for compliance with sales and use tax laws for the time period J un e 1 , 2 0 1 0 throug h April 30, 2014. Ba sed on the results of the audit, the Comptroller made an assessment that included a 50% penalty

. See Tex. Tax Code § 111.061(b)( 1) (authorizing additional penalty of 50% of tax due if failure to pay was “a result of fra ud or an intent to evade the tax”). The amount of the

asse s s m en t was deter

mined utiliz ing “H.B

. 11 data” and a memo from the Comptroller to audit
personne l that was entitl ed “AP 134.” See id. § 111.008(a) (authoriz i n g compt roller “to compute and determ i n e t h e am ount of tax to be paid from information contained in the [t ax] repor t

or from any other information available to the comptroller” ); Sa n a d co Inc. v. Office of the Compt roller of Pub. Acc ounts , No. 03-11-00462- CV, 2015 WL 1478200, at *1–2 (Tex. App.—Austin Mar. 25, 2015, pet. denied) (mem. op.) (discussing r e le v a n t s ta tu to ry scheme , auditing memoranda , and “H.B

. 11 data” for sales and use t ax au d i t s ). Fa rshid Enterpr ises reque sted a rede termination, see Tex. Tax Code § 111.009 (pro v id in g r ig h t to r e d e te r

mina tion), and the contested

case was ref

err ed to the State Offic e of Administrative Hea ring s. I n his proposal for decision dated September 22, 2015, the administrative law judge rec ommended t h at t he audit assessment be aff irmed, and the Comptroller adopted the pr oposal for de cision on Dec ember 2, 2015. 1

The Comptroller adopted the proposal for decision with c hang es, but the chang es are not 1 rele vant to this appeal. 2On Fe bruar y 11, 2 0 1 6 , a

p p e ll e e s s u e d a

p p e ll a n ts challeng ing the audit and subsequent sales t ax as sessment. I n their “F irst Amended Suit in Protest, Petition for J udicial Review,
Dec lara tory J udg ment, Tempora ry and Permane nt I njunctions,” appellee s soug ht judicial revie w of the Comptroller’s decision under chapte r 112 of the Tax Code and asser ted claims un d er t h e Administrative Procedur e Act, see Tex. Gov’t Code §§ 2001.038, .171–.174, an d t h e Uniform
Dec lara tory

J udg ments Act, see Tex. Ci v. Prac. & Rem. Code §§ 37.001–.011. Appellee s alleg ed that AP 134 and the implementation of H.B

. 11 wer e invalid rules and th at t h e C o m p t roller had
eng ag ed in ultra vires actions. See Tex. Gov’t Code § 2001.038 (authorizing decla ratory judgme nt when “ rule or its thre atene d application interfe res with or impairs, or threatens to interfe re w ith or impai r, a leg al rig ht or privileg e of the plaintiff”) ; City of El Paso v. Heinrich , 284 S.W .3d 366,
371–73 (Tex. 2009) (desc ribing ultra vires doctrine)

. Appellee s also challeng ed the constitutionalit y of Texas Tax Code sections 111.0042, 111.022, 112.051, 112.052, 112.101, and 112.108. See Tex.
Tax C o d e § § 1 1 1.0042 (sampling in auditing and projec ting assessments), 111.022 (jeopa rdy deter mination), 112.051 (protest pay ment require ment), 112.052 (taxpay er suit afte r pay ment under protest), 112.101 (r equire ments befor e injunction), 112.108 (pr ohibiting other a ctions).

Appellee s’ claims included that: (i) the audit was invalid and unenfor cea ble beca use it utiliz ed AP 134 that was an inv al i d rul e; (ii) the Comptroller acte d ultra vires when he
i m p lemented and enfor ced AP 134 and “HB 11” without adopting them in compliance with APA rule-ma king proce dures; (iii) the Comptroller acte d u l t ra v ires when he “esta blished ‘g ross underr eporting ’ as an irrebuttable presumption of proof to impose the additional 50% penalty ” under section 111.061(b) of the Tax Code, see Tex. T ax C o d e § 1 1 1.061(b), without adopting it in

3compliance with APA rule-ma king proce dures; (iv) sections of chapte r 112 of the Tax Code “manda ting prepa

y ment of assessed taxes, penalties and interest to invoke the trial court’s ju r is d ic ti o n ” w e r e “ u

n c o n s ti tu ti o n al beca

use they impose[d] unrea sonable financ ial barr iers to acc e s s
to the courts” and violated the open courts provision of the Texas Constit ution, see Tex. Const. art.
I , § 13; (v) section 111.0042 of the Tax Code was “unconstitutionally vag ue as written and as applied
to appellee s,” see Tex. Tax Code § 111.0042; (vi) section 111.022 of the Tax C o d e wa s “unconstitutional on its fac e and as applied,” see id. § 111.022; (vii) claims ag ainst Hasna t based on his persona l liability under section 111.0611 of the Tax Code must be dismiss ed beca use he was not joined as a party to the underly ing administrative judgme nt, see id. § 111.0611 (addr essing persona l liability for fra

udulent tax eva sion); a

nd (viii) “[t] he Comptroller has taken Plaintiffs’ proper ty for public use without just compensa tion” by collecting the taxes ag ainst appellee s, see Tex. Const.
art. I , § 17. Appellee s soug ht decla ratory and inj unctive relief, damag es, and attorney ’s fees as to their cla ims. Although they stated in their plea dings that a copy of the notice of protest was
at t ache d, appellee s did not file a notice of protest with the Comptroller or pay the tax assessme n t prior to filing suit. See Tex. Tax Code § 112.051 (re quiring pay ment and written protest that states “fully and in detail eac h rea son for rec overing the pay ment” prior to bring ing taxpay er protest suit). Appellee s asser

ted that the prepa

y ment require ments of the Tax Code wer e unconstitutional and that they wer e financially unable to prepa y the assessment prior to bring ing their suit. To suppo rt this position, appellee s attache d to their pleading s an oath by Hasna t of appellee s’ inability to prepa y the
taxes. Appellee s also arg ued that sovere ign immunit y was not implicated and that exh au s t i o n of

4administrative reme dies was not require d to invoke the trial co u rt ’s jurisdiction to consider their

claims. Appellee s cited s ec t i o n s 2001.038, 2001.171, 2001.173, and 2001.174 of the APA; the UDJA; sections 112.051, 112.052, 112. 1 0 1 , an d 1 1 2.108 of the Tax Code; and article I , sections
13 and 17 of the Texas Constit ution as support for the trial court’s jurisdiction over their claims. See
Tex. Const. art. I , §§ 1 3 , 1 7 ; T ex . Go v’t Code §§ 2001.038, .171, .173, .174; Tex. Tax Code §§ 112.101, .108, .051, .052.

I n their answe r, appellants asser ted a plea to the jurisdiction, including among their
arg uments that appellee s’ claims wer e barred by sovere ign i m m u n i t y , that chapte r 112 of t he Tax Code was the exclusive means available to ap p el lees to challeng e the audit and tax assessments
ag ainst them, and th at ap pellees had not complied with the jurisdictional prer equisites for bring ing suit under chapte r 112. After a hear ing, the trial court denied the plea. This interlocutory
appea l followed.

ANALYSIS

I n two issues, appellants ar g ue that the tria l court er red w hen it de nied their plea to the jurisdiction and that the trial court did not have subject matter jurisdiction to enter tain challeng es
to the final tax assessment ag ainst them when the claims wer e prese nted under the APA and UDJA and not under chapte r 112 of the Tax Code. Appellants contend that appellees we re require d to comply with chapte r 1 1 2 ’s j u risdictional prer equisites befor e fili ng suit to invoke t he trial court’s jurisdiction to consider their challeng es to the audit and tax assessment and that appellee s failed to do so.

5Standard of Review
“A plea to the jurisdi ct i o n ch al leng es the court’s authority to decide a case .”
Hec kman v. W

illiamson Cty ., 369 S.W .3d 137, 149 (Tex. 2012). We revie w a plea questioning the trial court’ s subject matter jurisdiction de novo. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). We focus first on the pl aintiff’s petition to deter mine whether the fac ts that wer e pleade d aff irmatively demonstrate that subject matter jurisdiction exis ts. Id. We
construe the pleading s liberally in favor of the plaintiff. Id. I f the plaintiff has not aff irmatively
p l ea ded fac ts to support jurisdiction or to neg ate jurisdiction, the matter is one of plea d i n g sufficie ncy , and the court should provide the plaintiff wit h the opportuni ty to amend its pleading s
to cure jurisdictional defe cts. Id. at 226–27. “Howe ver, if a plea to the jurisdiction cha lleng es the exis tence of jurisdictional fac ts, we consider re l ev an t evidenc e submitt ed by the parties when

nece ssary to resolve the jur isdictional issues raised, as the trial court is re quired to do.” Id. at 227 (citing Bland Indep. Sc h. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000)).

Sovereig n immunit y from suit de prives a cour t of subject matter

jurisdiction and is there fore proper ly asser

ted in a plea to the jurisdiction. Harris Cty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004); Miranda , 133 S.W .3d at 225–26; see City of Da l l a s v. Albert , 354 S.W .3d 368, 374 (Tex. 2011) (stating principle that “wa ivers of sovere ign immunit y or consent to sue g overnme ntal entities must g ener ally be found in actions of the L eg islature”)

. “I t is well rec og nized under Texas law that there is no rig ht to judicial revie w of an administrative order unless a statute provides a rig ht

or unless the order adver sely af fe cts a vested proper

ty rig ht or otherwise violates a constitutional rig ht.” Continental Cas. Ins. Co. v. Functional Restor ation Assocs. , 19 S.W .3d 393, 397 (Tex.

62000); see Andrade v. NAACP of Austin , 345 S.W .3d 1, 11 (Tex. 2011) (conside ring substance of

constitutional claim in revie wing plea to jurisdiction and noting that immunit y was reta ined unless viable cla im pleaded)

.

Whil e sovere ign immunit y g ener ally bars actions ag ainst the state absent a leg islative waiver , Syke

s , 136 S.W .3d at 638, suits ag ainst g overnme ntal officia ls alleg ing that t h ey “a ct ed without leg al authority or failed t o p er fo rm a purely minist eria l act” and seeking to compel the officia ls “to comply with s ta tu to r y o r c o n s ti tu

tiona l provisions” fall within the “ultra vires” exception
to sovere ign immunit y beca use they “do not attempt to exert control over the state—they attempt to

rea ssert the control of the state,” Heinrich , 284 S.W .3d at 372; see Houston Belt & Terminal Ry. Co.

v. City of Hous. , 487 S.W .3d 154, 164 (Tex. 2016) (cla rify ing ultra vires standard, citing Heinrich , and stating standard “does not cre ate a new vehicle for suits ag ainst the state to masquera de as ultra
vir es claims—indeed, our opinion mere ly reinfor ces the narr ow ultra vires principles we h av e
repe atedly announce d and endorse d”). Guided by these standards, we turn to our revie w of the trial court’s jurisdiction to consider appellee s’ claims.
Did appellees’

claims invoke the trial court’s jurisdi ction?
We beg in with appellee s’ claims that challeng e the constitutionalit y of provisions of the Texas Tax Code. “[S] overe ign immunit y is inapplicable when a sui t challeng es the constitutionalit y

of a statute a

nd seeks only equitable relief.” Patel v. Tex as Dep’t of Licensing & Regulation , 469 S.W .3d 69, 75–77 (Tex. 2015); s ee C i ty of Elsa v. M.A.L. , 226 S.W .3d 390, 392 (Tex. 2007) (conc luding “that the court of appea ls did not er r by ref using to dismiss the plaintiffs’ claims [aga inst the city ] for injunctive relief based on alleg ed constitutional violations”); City of

7Beaumont v. Bouillion , 896 S.W .2d 143, 149 (Tex. 1 995) (dete rmining that “suits for equitable

reme dies for violation of constitutional rig hts are not prohibited”); see also Central Appraisal Dist. of Rock wall Cty. v. Lall , 9 2 4 S

. W

. 2 d 6 86, 692 (Tex. 1996) (consider ing and concluding that provision of Tax C o d e was fac ially unconstitutional); Rylander v. Bandag Licensing Corp. , 18 S.W .3d 296, 303–04 (Tex. App.—Austin 2000, pet. denied) (same) ; cf. In re Ne stle USA, Inc

. , 359 S.W .3d 207, 212 (Tex. 2012) (“Re trospective monetary claims, even by way of manda mus or decla ratory relief

, are g ener ally barr ed by immunit y , absent leg islative consent.” ); Bouillion , 896 S.W .2d at 150 (obser ving that “State does not rec og nize a co m m o n l aw cause of action for damag es to enfor ce c onstitut ional rig hts”).

Be cause the rele vant g overnme ntal entity mus t b e made a party to UDJA suits challeng ing the constitutionalit y of statutes, the g overnme ntal entity ’s immunit y is waived. See Tex. Civ. P rac . & Re m. Code § 37.006(b) (r equiring attorney g ener al of state to be serve d with copy of
proce eding that involves alleg ations that statute is unconstitutional and entitling attorney g ener al to be heard); Texas Dep’t of Transp. v. Sefzik , 355 S

. W

. 3d 618, 622 & n.3 (Tex. 2011) (recog nizi ng that “state may be a proper party to a declara tor y judgme nt action that challeng es t he validit y of a
sta t u t e” an d UDJ A’s ex press waiver of immunit y in this context); Texas Educ. Agenc y v. Leeper , 8 9 3 S.W .2d 432, 446 (Tex. 1994) (“The DJ A expressly provides that persons may challeng e ordinanc es or statutes, and that g overnme ntal entities must be joined or notified

. Go v er n mental entities joined as parties may be bound by a court’s decla ration on their ordinanc es or statutes. The
Act thus contemplates that g overnme ntal entities may be—indee d, must be—joined i n s u i t s to
construe their leg islative pronounce ments.”); see also Texas Lottery Comm’n v. First State Bank of

8DeQue en , 325 S.W .3d 628, 633–34 (Tex. 2 0 1 0 ) (holding that trial court proper ly exercised

jurisdiction over claims ag ai n s t comm ission beca use claim challeng ed statute itself and distinguishing ultra vires claims involving g overnme nt office r’s actions o r inactions). Thus, we

co n cl u d e that the trial court corr ectly deter mined that it had jurisdiction over appellee s’ clai m s ch al l enging the constitutionalit y of provisions of the Tax Code to the extent that they s ee k decla ratory and injunctive re lief. 2 Turning to appellee s’ rema ining claims, we observe that they , i n s ubstance , seek judicial revie w and relief from the Comptroller’s audit and subsequent tax assessment. See Ex parte Springsteen , 506 S.W .3d 789, 799 (Tex. Ap p .—Austin 2016, pet. filed) (looking to “cla ims’ underly ing substantive nature in order to deter mine whether the district court had jurisdiction to
enter tain them”). The resolution of the trial court’s jurisdiction to consider these claims is dictated by this Court’s opinion in Sanadco

. I n that case , we aff irmed the trial court’s order that dismiss ed for l ack of jurisdiction all of the taxpay er’ s counter claims, which are analog ous to appellee s’

rema ining claims. See 2015 WL 1478200, at *2–4, 6. The taxpay er s we re convenience store
opera tors, and they filed counter claims seeking judicial revie w and relief from a tax assessment in
response to a collection suit by the Comptroller following his audit and assessment of tax es and penalties ag ainst the taxpay ers. Id. at *2–4. As support for the trial court’s jurisdiction ove r their 3
During oral arg ument, appellants’ counsel conce ded that the trial court had jurisdiction to 2 consider a

ppellees’ claims cha lleng ing the constitutionalit y of statutes. The taxpay ers’ counter claims in Sanadco included: (1) the Comptroller’s “A P 9 2 an d 3 AP 122” wer e invalid “administrative rules” beca use they wer e not proper ly promulg ated in acc ordanc e with the APA; (2) the Comptroller acte d ultra vires when he issued AP 92 and AP 122 and authorized their use to e stimate convenie nce store audits; ( 3) the Comptroller acte d ultra vires when he require d the us e of H.B

. 11 data for convenience store audits “‘w ithout first as ce rtaining 9claims, simil ar to appellee s’ position here , the taxpay ers cited section 2001.038 of th e AP A, t he

UDJA, and the ultra vires doctrine, and the taxpay ers in that case did not “mee t any of the statutory require ments for a

ref und claim or prote st suit” under chapte r 112. Id. at *4–5. B eca use they had
not met the st at u t o ry require ments, we conclude d that the cited g rounds for jurisdiction wer e “pre empted by Chapter 112 of the Tax Code, which the supreme court has held provides exclusive

reme dies for relief from assessed taxes on any basis.” Id. at *4 (citing In r e N es t l e , 359 S.W .3d at 211).

whether the determination can be m ade from t he tax pay er’ s rec ords’” ; (4) “the C omptr o l l er acted ultra vires by authorizing the imposit ion of a 50% penalty without proof of fr aud or of an intent to avoid the tax” as re quired by section 111.061(b) of the Tax Code; (5) section 111.0042 of the T ax Code was “unconstitutionally vague”; (6) “the Comptroller en gage d in an unconstit utional taking when he improperly collected s al es an d use taxes”; and (7) section 111.022 of the Tax Code was unconstitutional. Sanadco Inc. v. Office of the Comptroller of Pub. Acc ounts , No. 03-11-00462- CV, 2015 WL 1478200, at *3–4 (Te x . App.—Austin Mar. 25, 2015, pe t. denied) ( mem. op.). I n their pleading s, appellee s asser t claims analog ous to the taxpay ers’ claims in Sanadco , but they also asser

t a constitutional open courts claim and a claim challeng ing Hasna t’s persona l liability under s ec t i o n 111.0611 of t he Tax Code. See Tex. Const. art. I , § 13; Tex. Tax Code § 111.0611 (per sonal liability for fra

udulent tax evasion). As stated above, the trial court has jurisdiction over appellee s’ constitutional claims seeking equitable reli ef, including their open courts claims. See R Communications, Inc. v. Sharp , 875 S.W .2d 314, 318 (Tex. 1994) (conc luding that trial court had jurisdiction to hear decla ratory relief claim that contende d section 1 1 2

. 1 0 8 o f Tax Code was unconstitutional); Richmont Aviation, Inc. v. Combs , No. 03-11-00486- CV, 2013 WL 5272834, at *6 (Tex. App.—Austin Sept. 12, 2013, pet. denied) (mem. op.) (con cl u d i n g that trial court had jurisdiction to consider injunctive and decla ratory claims challeng ing constitutionalit y of section 112.108 and other

provisions of Tax Code). As to their claim conce rning Hasna t’s persona l liability , appellee s in their pleading s contend that Hasna t should be dismiss ed beca use he was not joined as a p ar t y in the underlying administrative proce eding

. See Tex. Tax Code § 111.0611 (authorizing comp t ro ller to find individuals to be personally liable for fra udu l ent tax evasion who are office rs and “took an action or participa ted in a fra

udulent scheme or fra

udulent plan to evade the pay ment of t ax es due”)

. Simi lar to appellee s’ other claims, howeve r, this claim challeng es the tax assessment itself and, thus, appel l ee s we re require d to satisfy the s tatutory require ments under chapter 112 to invoke t he trial court’s jurisdiction over

this claim, but they

failed to do so. 10As rec og nized by this Court in Sanadco and the Texas Supreme Court in Nestle , the

statutory methods for seeking judicial revie w of tax assessments are protest suits, ref und suits, and suits for injunctive relief broug ht under chapte r 112. See In re Nestle , 359 S.W .3d at 211; Sanadco , 2015 WL 1478200, at * 5

. These methods, howeve r, require timely pay ment of taxes due or a sufficie nt bond befor e bring ing suit. Tex. Tax Code §§ 112.051, .101(a) , .151(a)

. The protest suit
statute also require s a written protest to acc ompany the pay ment that states “fully and in detail eac h

rea son for rec overing the pay ment.” Id

. § 112.051(a) –(b). Simi larly , suits for injunctive relief under chapte r 112 require the taxpay er to file with “the attorney g ener al not later than the fifth day befor e the date the action is filed a st at em en t of t he grounds on which the order or i njunction is soug ht.” Id. § 112.101(a) (1).

A lt houg h appellee s participa ted in the administrative proce eding u n li k e th e ta

xp a y e r s in Sanadco , they nonetheless failed t o prepa y the tax assessment, post a bond, or comply with the
pre- suit notice require ments befor e bring ing suit. See id. §§ 112.051(b), .101(a) (1). Appellee s also d o n o t ch alleng e the constitutionalit y of the pre- suit notice require ments. Thus, even if the
prepa y ment provisions that appellee s challeng e are unconstitutional, appellee s still failed to comply with statutory require ments for bring ing suit under chapte r 112 as they do not dispute that they did
not comply with the pre- suit notice require ments. As we explained in Sanadco when fac ing claims by a taxpay er w ho did not comply with the chapte r 112 statutory require ments for bring ing suit,
[The taxpay er] may not now attempt to circ um v en t t h e statutory prer equisites to taxpay er suits by casting its various challeng es to the assessed taxes and penalties as counter claims seeking decla ratory and i n

j u nctive relief to the Comptroller’s collection actions when [t he taxpay er] could and should have availed i tself of the exclusive statutory taxpay er- su i t proce dures. Whil e [t he taxpay er] fra mes its

11decla ratory reque sts in terms of the validity or constitutionality of “r ules,” statutes, and alleg ed ultra vires actions, it is not mere ly seeking to obtain such decla rations but to be relieve d, there by , of its tax assessment and penalty

. Chapter 112 o f t h e Tax Code provides an exclusive reme dy there for, and Nestle expli citly prohibits any attempt at relief from assessed s al es taxes on any basis except as provided in the cha pter.

2015 WL 1478200, at *5; see also Bell v. Moores , 832 S.W .2d 749, 754 (Tex. App.—Houston [14t h Dist.] 1992, writ denied) (noting that trial court deter mines jurisdiction at time suit is filed and that
g ener ally “[j] urisdiction cannot subsequently be acquir ed while the suit is pending ”). Following our analy sis and holding in Sanadco , we simil arly conclude on thi s re co rd that appellee s may not circ umvent the statutory require ments in chapte r 112 of the Tax Code t o i n v o ke the trial court’s jurisdiction by casting their challeng es to the Comptroller’s tax assessment as ultra vires claims or claims broug ht under the AP A or the UDJA. See Sanadco , 2015 WL 1478200, at *5–6; see also
Ex parte Springsteen , 506 S.W .3d at 799 (looking to “‘c laims’ underly ing substantive nature ” to deter mine subject matter jur isdiction).

Appellee s urg e us not to f ollow the analy sis and holding of this Court’s opinion in Sanadco , contending that our interpre tation of th e N es t l e o p i nion was wrong . We, howeve r, are bound to follow this Court’s opinions. See Glassman v. Go o d f r i end , 347 S.W .3d 772, 781 & n.8 (Tex. App.—Houston [14t h Dist.] 2011, pet. denied) (en banc) (explaining horizontal stare decisis); Chase Home Fin., L.L.C

. v. Cal W

. R e c o n v e y ance Corp. , 309 S.W .3d 619, 630 (Tex. App.—Houston [14t h Dist.] 2010, no pet.) (“Absent a decision from a highe r court or this court sitti ng en banc that is on point and contra

ry to the prior panel decision or an intervening and materia l chang e in the statutory law, this court is bound by the prior holding of anothe r pane l of this court.”).

12We further observe t h at our opinion in Sanadco alig ns with well-e stablished

principles. For example, to be cog nizable, an ultra vires claim must challeng e the go v er nment

o f f ic ia l’ s a u th o r it y , not whether the g overnme nt officia l made an incorre ct decision. See Creedmoo r Maha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S. W

. 3 d 5 0 5 , 5 1 7–18 (Tex. App.—Austin 2010, no pet.) (conc luding that “alleg ations that TCEQ rea ched an incorre ct or wrong result when exercising its deleg ated authority ” did not invoke “district court’s inhere nt jurisdiction
to r emedy ultra vires ag ency actions”) ; Beac on Nat’l I ns. Co. v

. Montemay or , 86 S.W .3d 260, 267 (Tex. App.—Austin 2002, no pet.) (conc luding that “whe ther [age ncy ’s] interpre tation [of insurance policy promulg ated by ag ency ] is corr ect or incorre ct cannot be the fac tor that confe rs jurisdiction”);

see also Ex parte Springsteen , 506 S.W .3d at 799 (obser ving that Texas Supreme Court has repudia ted notion that “UDJA confe rs some broa d er rig ht to sue g overnme nt to obtain ‘statutory construction’ or a ‘dec lara tion of rig hts ’” ). Appellee s’ ultra vires claims g o to the merits of the audit—whether the Comptroller g ot it wrong —and n o t t o h i s authority to conduct the audit and

assess taxes. And any injunctive relief as to the C o m ptroller’s tax assessment ag ainst appellee s would be retrospe ctive and, thus, cannot form the basis of a viable ultra vires claim. See Heinrich , 284 S.W .3d at 375–76 (e x plaining tha t g ener ally “cla imant who succe ssfully proves a n ultra vires claim is entitled to prospective injunctive r elief, a s measure d from the da te of injunction”).

Section 2001.038 of the APA simil arly is not available to appellee s to bring their rule challeng e claims as to AP 134 and H.B

. 11 beca use these claims seek relief from the tax assessment itself. See, e.g., Combs v. Entertainment Publ’n s , Inc. , 292 S.W .3d 712, 723–24 (Tex. App.—Austin
2 0 09, no pet.) (allowing claims for injunctive and decla ratory relief beca

use taxpay er wa s “n o t

13seeking decla ratory relief reg arding the tax itself, but reg arding the validity of the rule promulg ated by the Comptroller in violation of the APA”); Rutherford Oil Co r p
. v. Gene ral Land Office , 776 S.W .2d 232, 235 (Tex. App.—Austin 1989, no writ) (“The purpose of [former version of section
2 0 0 1

. 038] is to obtain a final decla ration of a rule’s validity befor e the rule is applied.”). Fu rt h er section 2001.1 7 1 o f the APA does not provide an independe nt rig ht of judicial revie w of the tax
assessment becaus e chapte r 112 expressly authorizes judicial revie w but provides statutory require ments for bringing suit. See Texas Dep’ t of Protective & Regulatory S ervs. v. Mega Child Care, Inc. , 145 S.W .3d 170, 198 (Tex. 2004) (conc luding g ener ally that section 2001.171 of APA provides limit ed waiver of sovere ign immunit y when ag ency ’s enabling statute does not specific ally authorize or prohibit judicial revie w of a g ency decision). Following our analy sis and holding in Sanadco , we conclude that the trial court does
not have jurisdiction over appellee s’ rema ining claims and sustain the Comptroller’s issues as to those claims. 4

During the pendenc y of this appea l, appellee s paid the outstanding tax liability for t h e 4 rele vant audit period. Among their arg uments, appellants arg ue that this pay ment mooted appellee s’ claim for injunctive r elief unde r sec tion 112.101 of the Tax Code. See Tex. Tax Code § 112.101. Be cause we have conclude d that the trial court does not have jurisdiction over appellee s’ claims broug ht under chapte r 112 based on their failure to comply with the pre- suit notice require ments for bring ing suit, we need not addre ss this additional jurisdictional arg ument. See Tex. R. App. P. 47.1. We also need not rea ch appellee s’ reque st to abate or enjoin appellants’ collection eff orts during the pendenc y of this a

ppeal beca

use of appellee s’ pay

ment. Id. We further do not consider appellee s’ reque st to vaca

te the underly ing tax assessment in this interlocuto ry appea l from the denial of appellants’ ple a to the jurisdiction. See Tex. Ci v. Prac. & Rem. Code § 51.014(a) (8). 14CONCLUSION
We conclude that the trial cour t properly denied a ppellants’ plea

to the jurisdiction with respe ct to appellee s’ claims challeng ing the constitutionalit y of sections of the Tax Code to the
extent that they see k equitable relief

. We, howeve r, reve rse the trial court’s order deny ing the Comptroller’s plea to the jurisdiction with respe ct to appellee s’ rema ining claims and dismiss those claims for la ck of subjec t matter jurisdiction.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land
Affir med in Part; Reverse d and Dismissed in Part Filed: Apr il 13, 2017

15