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

NO. 03
- 18
- 00696
- CV

John Gannon, Inc., Appellant

v. The Texas Department of Transportation; James M. Bass, in His Official Capacity as Executive Director of T he Texas Department of Transportation; and Kyle Madsen, in His Official Capacity as Director of Right of Way for The Texas Department of Transportation, Appellee s

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 001981, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
John Gannon, Inc. (JGI) appeals from the trial court ’ s order granting the motion
to di smiss for want of jurisdiction filed by the Depar tment of Transport ation (the Department)
and James Bass and Gus Cannon in their official capaci t ies ( the Officials)

. 1 In the underlying suit, JGI sued the Department under the Administrative Procedure A ct ( the APA Claim) and the
O fficials under the Uniform Declaratory Judgment s Act ( the UDJA C laim) . For the following

reasons, we conclude that the t rial court has jurisd ictio n ove r the AP A Claim but not the UDJA
Cl aim

. W e therefore affirm the order in part and reve rse and remand in part

.

1 Kyl e Madse n suc ceed ed C annon and w e t h eref ore substit ute Madsen as a party to the law suit

. See Tex. R. App. P . 7.2(a )

. For convenience, w h e n ref errin g to filings or arguments made in court, we will refer to the Depar tment and the Officials collectively as the Department.2 BACKGROU ND
JGI owns and operates outd oor advert ising sig ns

— billboards

— that are ofte n located next to Texas high ways . Th e D ep artment i s a state agency t asked with reg ul at ing commercial sig ns along the State ’ s highways

. See Tex. Transp. Code § § 391.002 , .065, .0 68 (b)

. Before proce eding to the p roc edural histo ry and the merits of th is jurisdictional dispute, a gene ral
understa nding of th e l egal histo ry and fr amework is necessary

. Lega l History and Framework

The Texas Transportation Code provides that the State , pu rsuant to its eminent
domain aut hority, may co ndemn and a cquire real property

. See i d. §§ 203.051

– .05 2. As expla ined by the Depart ment, historically billboard s were genera lly not acquired through
condemn ation although billboard owners w ere often joined in the proceedings as owning
lea sehold interes t s in the la n d

. Rather , billboard owners could receive r elocation a s sistance
b enefi ts to remove and move the billboard. Fo r e xample, before 2004 , i f the State condemned
the property on which a bill board was located , the b illboard owner may have been eligible to

rec eive re loca tion benefits and a reloc a tion perm it pu rsuant to the Dep art ment ’ s former rule
21.160 i f th e s ign was “ de signate d by the owner as personal property

. ” See 43 Tex . Admin

. Code § 21. 160(c) (10) (2003) (Relocation) ( “ A permit may be issued pursua nt to this section if a sign is designated by the owner as p e rsonal pro perty and the sign owner rec eives re loc ation
ben efits, or if the sign is designated by the owner as rea l ty, valu ed and pur chased according to the departme nt ’ s sign valuation schedule s, and retained by the sign owner.

. . . R elocatio n benefits w ill be pai d in accordance with Subchap ter G of th is chap te r. ” ) , repealed by
35 Tex. Reg. 10 634, 10634 (201 0 ) , adopted by 36 Tex . Reg. 2418, 2418 (2011) ; s ee also3

43 Tex

. Admin . Code § 21

. 11 6 (Moving and Related Expense Payments ) ( promulgated to take
effec t in 2002 a nd providing that wh en person is required to relocate as result of acquisition o f rig ht

- of

- way for highway project , Departm ent w i ll pay reasonable expen s es of rel oc a tin g displace e and displacee ’ s bu siness and personal property so long as eligibi l it y requir em ent s

are met )

. 2 In 2004, the Department amended secti on 21.160 to clari fy that b illboards are personal property , not r eal p r op erty

. See 29 Tex. Reg. 8 779, 8779

– 80 (2004) , adopted by
29 Tex. Re g. 11389, 11389 ( 2004) (to be codifie d as amendm e n t to 43 T e x. Admin.
Code § 21.160 ) (e xplaining that “ [t]here has been con fusion due to the la nguage included in § 21.160 (c)(10) that the d epart ment may consid er si g n structur es as real property ” and that

“ [t ]his section is contrary to curren t department p o l icy, and § 21.160 is amended to delet e any reference to the treatment of signs as re al propert y for relocation assistance purposes ” ) ; Harris County v. Clear C

hanne l Outdoor, Inc. , No

. 14

- 07

- 00226

- CV, 2008 WL 1892744, at *1 (Tex. App.

— Houston [14th Dist.] A pr. 29, 2 0 08, no pet.) (mem. op.) ( noting that “ [p] rior to
December 2004 , both [Dep artment] policy and federal law considered billboards removed for transpor tation p rojects t o be real property a nd required that the billboard owner be compensa ted
for the l o s s of the sign or the cost of relocating the sig n , ” but that Department changed regulati ons to “ dictate [] that billboards affected by transportation projects woul d no l o n ger be

tr eated as real proper ty and the sign owners would no longer be o ffered compen s ation for the
loss of the sign ” )

. In 2011, the Depar tment repealed section 21.160 and o ther rel ated regula tions
and replaced them with a new subchapter tha t subd ivided former s ection 21 .160 across multiple

2 Rules cited from title 43 of the Texa s Admin is tra tive Code we re promu lgated by t he Depart ment. Unless otherwis e stated , cit e d rul es r e fer to the curren t ve r sion

.4

sections

. See 36 Tex . Reg. 2418, 2 418 (2011) (n o t ing that “ [a] majority of the ne w rule s hav e nonsubstantive changes ” and “ [t]he department ado pts a new rule orga nizational structure that
subdivides the current rules into s m a ller sect ions and reorganizes them so that the new rules logicall y follow the s i gn permit ting process ” )

. Thus, the re le van t r ules at issue in this appeal provid ing for reloc ation, relocation benefits , rel oca tion permits , and l ocational and spacing
requ i r e ments wer e s pread ac ross mult iple n ew se c tions

. See i d. at 2452

– 53 ( noting th a t these

re quir ement s would be codified at sections 21.1 92 (Permit for Relocati on of Sign) , 21 .193 ( Location of Relocated S ign ), 21

. 195 (Relocation of Sign wit hi n Municipality), an d
21 .1 96 ( Relocation Benef i t s ) of t itle 43 of T exas Administrat ive Code )

. I n 2015, a dispute between th e S tat e and a billboard own er arising out of a condemnation proceeding reached th e Texas Supreme Court. See State v. Clear Channe l Outdoor, Inc. , 463 S.W.3d 488 (Tex. 2015)

. T he State argued that the condemnation of land did

n o t take th e billbo ar ds o n th at lan d because billboa rd s are personalt y , not fixtures

. S ee id. at 493.
T he Texas Supr eme Court , ho we v e r, reject ed t he State ’ s ar g ument, ho lding:

Clear Channel ’ s bill boards were fixtures if a unified fee

- holder would have in t ended them to become a permanent part of the land.

. . . The billboards were firmly e mbedded in the earth; their re moval req uired t h at the po les be cut a nd th e signs di smantled. Moreover, the bi llboards were perfectly suited to the use of the realty, w h ich was ou tdoor adverti sing alongside a busy freeway. On t hi s record, the hypothetical holder of a unified fee would have int ended t h e billboa rd s tructure s to b ecome a p art of the real estate as a matter of law.

Id. at 495

– 96

. But , as not ed , the Texas Supreme Co urt limit ed its holding to “ this r ecord ” and
further stated :
This is not to say that all sign struct u r es are ne ce ssarily fixtures. Di fferent construction methods may make a bil l board structure mo re portable than those in t his case. Were a sign l ess firml y embedded in the g round, m ore easily mo veable,5

or located on land not actually useful for adv ertisi n g , it migh t well re main personalt y. Courts are to determine whether an y par t icular billboard i s a fixture in a condemnati on case b as ed on the L o g an test a s framed from the p erspecti ve of a holde r of the unified fee.

Id. at 496 (citing Logan v. M ull is , 68 6 S.W .2d 60 5, 607

– 08 (Tex. 1985))

.

On March 29, 2016, Cannon issued a memorandum title d “ Guidan ce for Impact ed
Off

- Premise Billboa rd s as Par t o f H ighway T ransportation P roje cts. ” On June 9 , Cannon issued

a document tit le d “ Amended Guid ance for Impact e d Off

- Prem is e Billboards Affected by Highway Transportation Projects ” (the Amended Guidanc e ) tha t expressly “ clarifie [d] an d replace [d ] ” the March g uidance do cument. The Amende d Guid an ce stated, as relev ant here :

• In light of recent Texas Supreme Co urt ca s e
- law, the R ight of Way D iv ision has revised how it treats billboards in the course of acquirin g property as part of a hig hway constr uct ion pro

jec t

.

• Effecti ve immediatel y fo r n e w ac quisitions where no in i ti a l offer has bee n previously made, all off

- premi s e billboar ds will be trea te d as real ty.

• For the sign structure owner to be eligible for a rel oc a tion permit

. . . they will need to ret ain the st r ucture for its s alvage va lue a nd f oll ow the current

. . . relo c ation permitting regulations.

• In concl u sio n , [ the Dep ar tm ent ] ’ s poli cy i s that all billboard s are treated as real t y. In addition , this will ensure the timely removal o f the si gnage from th e real prop erty that is th e su b je c t to the highwa y construction p roject.

The Amended Guidance contin ued by stating , “ E ffect iv e the da te of thi s guidance the following procedures , ” listed belo w as relevant to this appeal , “ wil l be followed ” :

• [T]he b ill bo a rd structu re owner will not be provi de d reim bursement of expenses to relocate the billboard structure as a billboard struct u re ca n not be th e su bject of d uplicate payments as both an item of real estate and for relocation [

. ]

• I f the billboard structur e o wn e r chooses to retain the str ucture an d t h is i s properly re flected in the deed, [the Department] will provide the sign owner [] a Not i ce to Vac at e6

a t a date certain that corresponds with the language in the deed, which should be n o less than 60 days pri or t o the date o n which the l and on which t he s ign is erected is needed for construct ion purposes.

• If the billboard structure own e r doe s not remo ve t he st ructu re per the deed and Notice to Vacate, the o wnersh ip shall revert back to the state for r emoval. The s i gn struct ure owner will forfeit the s a l v age value paid to the state AND their eligibility for a relocation permit

. . . .

• I f the b ill boar d stru ctur e owne r does not choose to retain the structure, then t hey will not be provided the ability t o apply for a relocation permit under the current

. . . pe rmitting regu lations and any applica tion by the sign owner would be treated as a n appl i cation f or a n ew p ermit.

The Amended Guidance closed by stating , “ All Ri ght of Way Ma nuals will be updated

as needed. ”
I n September 2017, the Departmen t p roposed th e repeal and a mendment of
certain regu lation s that concern ed o ut door signs becaus e “ [t] h e Texas st atut es r egulati ng outdoor advertising were ruled unconstitutiona l ” as the “ definition o f ‘ sign ’ was o verinc lusi ve. ”
42 Tex. Reg. 4770, 477 0 (2017) , adopted b y 43 Tex. Reg. 1446, 1446 (2018) ( citi ng A usPro Enters., L P v. T exas Dep ’ t of Trans

p . , 50 6 S. W.3d 6 8 8 (Tex

. Ap p.

— Austin 2016 , pet

. granted, j ud gm ’t vacated w.r.m.) )

. As relevant here, the De partment amended s ect i o n 21.192 to “ require
that a sign must be ti mely remove d from t he con stru ction site to be eligible f or the relo cation provisions ” an d re pealed sectio n 21 .196 “ as relocation b enefits are an aspect of the p urchase of the right of way an d not th e sign per mit p rocess. ” 43 Tex. Reg. 1446 , 1450 (2018).

P rocedural H istory

On Ap ril 24, 2018, JGI sued th e Department and the Officials , seekin g de clarat o ry rel ie f under the APA , see Te x
. Gov ’ t C ode § 2001.038 , and the UDJA , see Te x. C iv.
Prac. & Rem. C ode § § 37. 001

– .0 11

. In its APA C laim, JGI challeng ed the validity of the7

Amende d G uidance and “ any D epartment policy related to its enforcement o r en actmen t ” on t wo
g rounds. First, JGI ch allenge d the Amended Guidance a s an invalid rule that eliminates ri ght s under “ S t at e and Fe deral authorities ” that alle ge dly gua rant ee billboard owners “ reimbursement
of reasonable moving expenses when sig ns are re loc ated t o accom mod at e a highway proj ect. ”
S ee Tex. Gov ’ t Code § 2001. 038 ( providing f o r challenge to validi ty of rule )

. Sec ond , JG I
claims that the Am e nded Guidance i s voidable because it wa s not adopted in substantial compliance with the APA. See id. § 2 0 01.035 ( “ A r ule i s voidable unless a st ate agenc y adopt s it
in substantial complian ce with Section s 2001. 0 225 throu gh 2 001. 034. ” )

. In its UDJA Claim, JGI
soug ht a tto rney ’ s fees and a decla ration that the Officials “ have acted ultra vires by committ ing

no n
- discr e tio na ry ac t s and exceeded their s tatutory authority in adopting and enacting the [Amen ded ] Guidanc e [Doc umen t] a nd [ the De partm ent ’ s] new polic y f or treat me nt of signs disp lace d by S tate construction projects

. ” S ee Tex. Civ. Pra c. & Re m . Code § § 3 7. 004 ( p r ov i d ing f

or declarat ory relief), . 009 (prov iding for attorney ’ s fees )

. In respo nse , the Departm en t filed a p l e a to the jurisdiction , moved for protection from discovery , and mo ved to dismiss JGI ’ s claims for want of jurisdiction. The Department
made thre e p rimary a rgu me n t s
. First, it argue d that “ after the Clear Channel decision, the State

can no l onger con sid e r billboards t o be pers onal property and is required to a c quire and compensate for billboard structures. ” And while the “ Amended Guidance may hav e e xpresse d
th e l a w c ontained in the Cl ear Channel decision, the

. . . Am ended Guidance did n ot c onstitute [a ] rule [] subject to rule

- making procedures , ” nor does it “ affect any private rights ” because

“ billboard owners do not have the right to the issuance o f commer c ial sign p e r mits. ” Thus, according to the Departme nt, bec ause there is no rule, JGI “ c anno t s eek relief under [section]
2001. 038 [of the Texas Government Code] and sovereign immunity bars the c laim. ” Second, the8

Departm ent a rgue d that the claims are moot becau se the Department “ has a dopted n e w ru les th a t
address both relocation assistan ce benefit s and commercial sign permit s
. ” Thir d, th e Departm ent argued th at the trial court lacks jurisdi ctio n o ver the UDJA Claim becau se JGI “ may not seek
relief under the UDJA when such relief wou ld be redu n dant to r e l ief under the APA

. ”

JGI countere d that the Amended Guidance consti tutes a rule under the APA ’ s definition of “ Rule. ” See Tex. Gov ’ t Code § 2 0 01.003(6) (defining “ Rule ” ) . JGI asserted that
the Amended Guidance affects its private r ig hts b e ca u s e i t :
( 1 ) eliminate[s] a billboard owner ’ s statutoril y - guaranteed right to receive reimburs eme n t of rel o cation expense s incurred as a result of a highway project, and (2 ) require[s] sign owner s to accept the State ’ s offer for the acquisiti on of a billboa r d i n emi n e nt domain before an arbitrary and shifting d eadline, or else forfeit the right to rel o c ate the sign u sing [th e Department ’ s] rela xed relocation criteria.

JGI noted , howev er, that the Clear Channel Court neither held “ that all bil lbo a rd s were t o be

trea t e d as realty ” nor “ address [ed] the statut ory and regulatory scheme for reimbursemen t of
relo cation expenses or issuance of relocation permits. ” Thus, a ccording to JGI , the Amended
Guidance is a rule , and jurisdiction exists under sectio n 2001.038

. JG I al s o argued that the APA
C laim is not moot beca use “ [t]he newly revised Administrative Co d e, inc luding Sections 2 1.164
and 21.19 2 , provides no auth ority for [the Depar tment] to hold that a sign owner ’ s permit application is contingent on t he sign ow n er ’ s act i o ns before the special commissione rs ’ hearin g ”
and “ the Property Code and other pro vis i on s of the Administrati ve Code remain in place and
contin ue to provide sign o wners wit h the right to relocation assis tance. ” Finally, JGI assert ed

t ha t “ Defen d an ts m ay b e sued under both the APA and the UDJA beca use JGI seeks separate relief against t he s epa r ate parties

— JGI cha llenge s the legality of the Guidan ce, as well as
Defend ants’ au thority to implement and enforce the Guidan ce. ”9 After a heari n g , the tr i al court g ran ted the Department ’ s motion to dismiss f or want of jurisdiction and denied its mot i on for protect ion from discovery as moot

. In a letter , t he trial court expl ained that “ [a]mong other reason s , ” it dismissed the APA C laim because “ the

. . . Ame n de d Guid a n ce [is] not [a] rule [] as [it] di d not in clude the amendment or repeal [of] a prior

ru le , ” see id. § 2001.003(6) (b) ( noting that “ R ule ” “ includ e s the am endment or rep e al of a prior
rule ” ), and di smissed the UDJA C laim beca use “ [JGI] ha s not dem o n strated a live case or

c o ntroversy

. ” JGI now appea ls from this order.

S TANDARD OF REVIEW A plea to t h e jurisdiction challenges th e trial c ourt ’ s authority to de cide a ca se. Heckman v. Williamson C oun ty , 369 S.W.3d 137, 1 49 (Te x. 20 12 ). Here , the Dep a r tment challenges jurisdiction based on so vereign im munity and mootness, questions of law we review
de n o vo
. Id. at 226 (mootness) ; Texas Dep ’ t of Transp. v. Sefzik , 355 S. W.3d 618, 620 (Tex. 2011) (so verei gn immunity)

. In assessing a p l ea to t h e jurisd i c tion, our analysis begins with the live p leadings , and we determine whether the facts alleged affirma t i v ely demon strate that jurisdi ction exi sts. Heckman , 369 S.W.3d at 15 0

. We may also consider evi dence submitted to negat e the exist e n ce of jur i sdiction

. I d. We construe the plaintiff ’ s pleadi ngs libera lly, taking all
factual ass ertions as true, and look to th e plaintiff ’ s intent. Id. I f j urisdiction is affir ma tively negate d , a ple a to the jurisdiction must be granted

. Id.

DISCUS S ION
JGI raises t hr ee iss ues on appeal : whether the Ame nde d Guidance c on stitutes a
rule , whether s overeign immuni ty appl i es to the APA an d UDJA Claim s , and w h ether JGI should
hav e been afforded the ri ght to conduct discovery. In response , t he Departmen t also rai s es a10

sta nd ing issue as to w hether the clai ms ar e m oot

. We b eg in our analysis with whether the
Amended G uidance c ons titutes a ru le.

Is the Am ended Gui

dance a rule?
Sect ion 2001.038 of the AP A is a “legislative grant of subject

- matt er jurisdict i on, so th a t valid cl aims raise d pursuant to that provisio n a re not barre d by sovereign immunity. ” Texas Dep ’t of Pub . Saf

e ty v. Salaz ar , 304 S.W.3d 89 6, 903 (T ex. App.

— Austin 2009 , no pet.).
Section 2 0 0 1.03 8 thus waives sovereign immunity f or a claim for declarat ory relie f regar ding the “validity or applicability of a rule

. . . if it is alleged that the ru l e or its threate n ed application
interferes wi th or imp airs, or t hreatens to interfe re with or impair, a l egal right o r privileg e of the pl aintiff.” Tex. Gov ’ t Code § 2 001.038 (a) ; see El Paso Hosp. Dist. v. Tex as Health & Human
Serv s. Com m ’ n , 247 S.W.3d 709, 71 3 (Tex. 200 8 ) ; Texas Dep ’ t of Transp. v. Sunset T ransp.,
I nc. , 357 S.W.3d 691, 70 0 (Tex. App.

— Austin 2011, no pe t .)

. “ [A] challenged agency acti on that c onstitute s a ‘rule ’ is among the facts (more preci s ely, a mixed question of law and fact) that
must exist in or de r for a claimant to su c cessfu lly invok e, via section 2001.038 , a trial co u rt ’s subj e ct

- matte r jurisdiction over the claim for relief a uthorized by the s tatute. ” Slay v. Texas
Com m ’ n on Envtl. Q uality , 351 S.W.3d 53 2, 544 (Tex. App.

— Austin 2011, pet. den ie d )

. Whether an agency action is a rul e “is distinct from and pre c edes the i ss ue ” of w hether the plaint iff is entitled to relief u nder section 2001.038. Id. at 545.

T he APA provides that a ru l e (1) is an “ agency statement of genera l a pplicability ”
that e ither “ implements, interpret s, or pre s cr ibes law or poli cy ” or de scrib es an agency ’ s

“ procedure or pr actice r e quireme n ts ” ; (2) “ includes t he a mendm ent or repeal of a prior ru le ” ; and (3) “ does not i nc l ude a sta tement regarding only the internal management or organization of a11

state a gency and not affecting priv ate rig ht s or procedures. ” Tex. Gov ’ t Code § 2001.00 3( 6)(A)

– ( C) ; see El Paso Hosp. Di st. , 247 S.W.3d at 714

. In determining whether a n agency state ment is a rule, “ we co nsider the intent of t he age n cy, the prescripti ve nature of the po licy, and the

conte xt in wh i ch the ag e ncy stat em ent was m ade. ” T exas State Bd. of Ph armacy v. Witcher , 4 47 S.W.3d 520, 533 (Tex. App.

— Austin 2014, pet. den ied as impro viden tly granted ) ; see Combs v. Ent ertain m ent Publ ’ ns, Inc. , 292 S.W. 3d 712, 72 2 (Tex . A pp.

— Austi n 2009, no pet.) (citing T exas Educ

. Agency v. Leeper , 89 3 S .W

. 2d 432, 44 3 (Tex. 1994))

. But an agency ’s
insi stenc e that its statement is not a ru le is not de termi native. See El P aso Hosp. Dist. , 247 S.W.3d a t 714

– 15 ( rejectin g agency ’s argum ent that sta tement “is not a rule its e lf, but r a ther
its i nterpret ati on of the [existing] rule ”)

. Age ncy pr onouncem e nts that “ advise third parties regarding a pplicable le gal requirement s
. . . may be ‘ interpretations ’ of law that constitut e ‘ rules ’
under the A PA, ” but informal age ncy stateme n t s merely restat in g f or m ally promulga ted rules are
not. LMV

- AL Ventur es, LLC v . Texas Dep ’ t of Aging & Disability Serv s
. , 52 0 S.W.3d 113 , 121 (Tex. App.

— Austin 2017, pet. denied) (qu o ting Sunset Transp

. , 357 S.W .3d a t 70 3 )

. JGI ass erts
that the Amen de d G uidance satisfies each e lem ent of th e APA ’ s definition and is not an i nformal

a gency statement merely restating formally promulgated rules

.

The parties do not d ispute that t he Ame n ded Guidanc e is a “ sta t e age ncy
state m ent

. ” The Departme nt is a st ate a gen cy. See Texas De p ’ t of Transp. v. Cit

y of Sunset Valley , 146 S.W .3 d 637, 64 1 (Tex. 2004) ( describing Department a s st ate agency)

. The
Amended Guidance purports to speak for the D e part ment, conveying its o ffi cial posi tion on policy matter s and sta ting wha t t he De p artment “ w ill allow ” or “ wil l p rovide ” and what “ will not be pr ovid ed

. ” And t he Department does not contend that the write r Cannon

— the director for the Department ’ s right of w ay division

— was acti ng w ith anyt h ing less th a n the De partment ’ s full12

au thority. See gen er

ally 43 Tex. A d min. C ode § 1. 1 (Texas Transporta tion Comm i ssion) ; s ee id. § 1.1( b ) (1 )(L) , ( O) , (b) ( 2) ( providing t hat Commission will “ adopt rules for the operat i on o f the department ” and “ e stab lish policy ne cessary to carry out the d uti es and f u nctions of the depart ment and the commi ssion ” and may d ele gate func tions listed under paragr aph (1) to

execut ive director w ho may further delega te functions to employee of depa rtme nt )

. W e therefore

c onclude t hat the Amended Guidance is a “ stat e a gen cy st a tement

. ” See Teladoc, In c. v. Tex as
M ed. Bd. , 453 S.W.3d 606, 614 (Tex. App.

— Austin 2014, pet. denied) (conc luding letter i s

“ state agency sta tement ” when “ it purports to spea k for the Bo ard, conveyi ng its of ficial position,
and there is no co nte ntion th a t the w r it er, the agency ’ s general cou nsel, was acting wit h anythin g less than the Board ’ s full authority ” ); Entertainment Publ ’ ns , 292 S.W.3d at 718, 721

– 22 ( ho lding that lett er signed by “Assista nt Director of Tax Administration” conveyi ng Co mpt roller ’ s construc ti on of tax laws was “rule” under A PA; noting that “the Com ptroller does
not contend that th e signer of the letter was acting with anything less than her full auth o rity ”).

“ Th e t erm ‘gene ral applic ab ility’ under the APA reference s ‘st ate ments th a t affect

t he int erest of the public at larg e such that the y cannot be given the effect of law withou t public input.’ ” El Pa so Hosp. Dist

. , 247 S .W.3d at 714 (quoting Railr o ad C omm ’ n v. WBD Oil & Ga s C o. , 104 S .W.3d 69, 79 (Tex

. 2003)). Th e A me nde d Guidan c e is gen er ally a pplicable because it
affect s the cla ss of owners of off

- premise billboards . The Amended Guid ance expressly declar es that it is “ [e]ffective immediately fo r new acqu isiti ons where no i nitial of fer has been previously

ma de , ” that “ the Ri ght of W a y Divisi on has r evised how it treats billbo ards in th e cour se of acquiring property as part of a highway construction pro ject , ” and that “ all billboards are treated

a s realty

. ” See id. ( holding that beca use agency s tatement “ aff ect[s] all hosp ita l s recei v ing
reim bu rsemen t for inpati ent Medicaid se rvic es , ” i t is one “ of general applicability ” )

.13 The Amend ed Guidance also “ imple ments, interprets, or prescrib es law or policy ”

a nd de scribes the De partment ’ s “ procedure or practice requiremen ts. ” It impleme n ts and
i nt erpret s law by stat ing that the D epartment has revis ed how it treats billboards “ [i]n light of
recent Texas Su preme Court case

- law

. ” And the Department ’ s i n tent is cl ear that it is
pre sc ribing law or policy that would be binding : th e A mended G u idance d ec lares t h at

“ [e] ffective the date o f this gu idance th e following procedures will be followed ” a nd t hen lists
th e procedures to be followed , and it prescribes new poli cy by stating th at t he De par t ment ’ s

“ policy is that all bill boards are treated a s r eal ty. ” Se e Badg er Ta vern, L .P. v. Hegar , No. 03

- 18

- 002 91

- CV, 20 18 WL 432 2383, at *4 (Tex. App.

— Austi n Sept. 11, 2018 , pet. denied) (mem. op.) (noting “ retroactivi t y pronouncement ” meets d efin i tion of rule because it is generally applicable and “ is a stat eme nt by th e Comptro ll er that informs the public of the Comptroll er ’ s inte ntion to apply the new recor d

- keeping requir ement to ‘ all pending cases ’ ” ); Witch er , 447 S

. W.3d at 529 ( “ [A] distin ctio n exists between nonbinding evaluative guidelines t hat take
int o c onsidera t ion case

- s pecific circumstances

— which have b een held not to be a rule

— and policies that di ctate specified results without regard to individual circumsta n ces, which have
been hel d to be a rul e. ” ) ; Entertainment Publ ’ ns , 292 S.W.3d at 718, 72 2 (n oti ng that l egal
int er pretati on in Comptroller ’ s letter constitut ed rule b ecau se it wou ld bind agency employees
and “ u nam biguously express [ ed ] an intent to apply th i s interpretation

. . . i n al l future cases involving brochure

- fundraising firms, regard less of whether the part ic ular circumstances of each

trans action migh t have re sulte d in different t ax trea tment ” )

.

In a lette r , t he t rial court explain ed that the Ame n ded G uidan ce is not a rul e because it does not in clude th e amendm e nt or re pe al of a p rior rule. Bu t a l though a “ Rule ” according to the APA “ includes th e a me nd ment or re peal of a prior rule , ” T ex. Gov ’ t Code14

§ 2001.003(6)(B), “ an agen cy state ment is not r e quired to amend or repeal a prior rule in order to
meet the APA ’ s definit ion o f ‘ rule , ’ ” EATX Cof fe e, LLC v

. Texas Alco holic Bev e rage Comm ’ n , No. 04

- 16

- 00213

- CV , 2016 WL 7119038, at *3 (Tex. A p p.

— Sa n Antonio D ec. 7, 2016, pet.
dism ’ d ) (mem. op. )

. In o the r words, a lthoug h the fact that an a gency statement amends or repeals pri or ru les may be a suffic i en t condition for t he statement to consti tute a rule, it is not a

necess ary condition. See T ela doc , 453 S.W.3 d at 616 ( noting that “ ‘ includes ’ denote s that a

‘ rule ’ ma y include agency statements b eyon d those that amend or repeal a n exi sti ng rule ” )

.

Ne ve rtheless, the Amende d Guidan c e does effectively a mend or repeal prior

ru les. When the Amended Guidance was impl ement ed , s ection 21.196(a) stated th at

“ [r]e l ocation b ene fits will be paid in accorda nce w ith Subchapter G of th is ch apter (r elating t o Reloca ti on Assistance and Be nefits) f or the relocation of a sign under § 21.192 of this division (rela ting to Permit for R elocatio n of Sign). ” 43 Tex. Admi n. Code § 21.196(a ) (2016) (Relocation Benefits). But the Amended Guidance provi des t hat “ the bi l lboard s tr ucture owner
will no t be prov ide d reimbursement of expenses to relocate the billboard structur e as a billboard

s tructure c annot be the subject of du plicate p ayments a s both an item of re al estate a nd fo r relocation ” and “ tha t all bill boa rd s are t reated a s realty. ” The Depart ment argu es that this is

mer ely a restatement of the law following Clear C hannel . But Clear Channel e xpressly limited
its holdi ng by no t ing th at a billboard may , or may not , be realt y depending on the circumsta nces of each case . 4 63 S.W.3d at 496 (“Thi s is not t o s ay that a ll sign st ructures are necessaril y fixture s. . . . C ourt s are to deter mine wheth er any particular billboar d is a f i xture in a
cond emnation case based on the Logan test as fra med from the p erspective of a h older of the unified fee.”)

. Th e Ame nde d Guidan c e makes th e determination that al l billboa rds constitu te15

fixt ures notwit hstanding Clear Channel ’ s limitation and thu s cannot be construed as a mere
restatement of the law enunc iated in Cl ear C hannel

. Addi tiona lly, in 2016 , section 21.19 2 pro vid e d that “ [a] sign m ay be relocated in

acco rdance wi th this sect ion

. . . if the s ign is leg ally ere cted a nd m aintaine d and wi l l be within the highway right of way as a resul t of a highw ay construction project. ” 43 T ex. A dmin. Code § 21.192(a) (201 6) (P erm it for R e location o f Sign). But the Amend ed Guidan ce effective ly
amended se ction 21.192(a) by impos ing additional t i ming req u irements for removal of the

structur e from the land

— i .e., b y the date listed on the Notice to V acate but no later tha n 60 days pri or to wh e n th e la nd is needed for construc tion purp oses

— w h i c h , i f not complied wi th, will
result in the owner “ forfei t [ing]

. . . their eligibility fo r a relocation permit. ” 3

Thu s , t he Am ended Guidance has a “ lega l effect or significance in depen dent of
what is a lread y c on tained ” in Clear Chan nel and secti on s 21. 19 6 ( a) and 21.192 , a nd therefor e constitutes an amendment or repeal of prior rules. See Tel a doc , 453 S.W.3d a t 615. F or these

same reasons, the Amend ed Guidance is not a s tatem ent re gardi n g only t he agenc y ’s internal management o r organiza tion but rather is a statement th at a ffects the billboard owner s ’ private

r ights. See Sun set Transp. , 357 S.W.3d at 703 (noting that age ncy statement must “bin d the
age ncy or otherwise repre sent its au t hori t ative po si tion in matters that impact personal r ights ” ) ; Slay , 351 S.W .3d at 546 ( “Al though the distinction betwee n a ‘rule ’ and a n agency state ment that

concerns onl y ‘interna l managem ent or organization

. . . and no t affecting pr ivate ri ghts’ ma y

3 The Department argues that the Am ended G uidance did not am end or repeal pr ior rules because in 2018 section 21

. 196 was repeale d a nd sect ion 21. 192 was amen ded. Altho ugh the D epar tmen t ’ s actions following the i ssuan ce of the Amended Guidance may affect whether the claims are moot, as disc ussed f urther be low, these acti ons have n o bearing on whether the Amended Gui dance c o n s tituted “ t he a mendment or re pea l of a p rior ru le

. ” Te x. Go v ’ t Code § 2001.0 03(6)(B) (emp h asis added).16

s ometi m es be el us ive, the core concept is that the agen c y statem ent must i n itself have a bi nding

e ffect on private parties .” ) ; Te xas Mut

. In s. v. Vista Cmty. Med. Ctr., LLP , 275 S.W.3d 53 8 , 5 56 (Tex. App.

— Au stin 2008, p et. den ied) ( “ The 2005 Sta f f R eport d id no t affect pr ivate rights
bec ause it did not cha nge or amend Rule 134. 401; it simply ma n dat ed internal consistency when applyi ng the r ule. ” )

. We therefore conclude that the A mended Gu idan ce constitute s a rule
suscep ti ble to chall enge und er se cti on 2001 .038 o f the Te xa s Government Code and that sovereign i mm unity i s waived a s to the APA Claim

. See T exas Dep ’ t of State Health Ser v s
.

v. B alquinta , 429 S.W.3d 726, 745 (Tex . App.

— Aus tin 2014, pet. dism ’ d) (concluding that w hen plaintiff challeng es va lid ity of ru le a nd alleg es that rule interferes with or impa i rs its le gal right or privilege, sect ion 20 01.038 waives sovereign immunity as to t hat claim )

.

Is the APA Clai m moot ?

The Dep artment ar g ues that , even if the Amended G uidance could be consi dered

a rule, “ JG I ’ s complain ts are moot because [the Department] has adop ted new ru l es that address
b oth rel ocation assist ance be nefits and commer c ial sign permits for billboards within the
hi ghway rig ht of way as a result of a highw ay constructio n projec t

. ” Cf. Valley B apt i st Med. Ct r. v. Gonzalez , 3 3 S.W.3d 821, 822 (Tex. 20 00) (per c uriam) (concluding that when appeal be came moot, “ there c eased t o be a live controversy ” and court no longer ha d juris diction as opinion
woul d be advi sory). Specifically, the D epa rtment ar gue s that by a mending section 21.192 and repeali ng sectio n 21.196 i n 2018, it “ add [ed ] the requirement that a commercial si gn owne r tim ely re move the billboard from the [Depart ment] con struction project in order to qu alify for a
relocation perm i t at a new hig h way loca ti on ” and “ no longer pro vide [d] relo cation as sistance
b enefits for moving billboards

. ”17 As an initial matter , the D e partment ’s arguments before this Court make clear that
the De partment intends to continu e relying on a nd utili zi ng the Amended Guidance. Thus, it appears that the Departmen t is argu ing that w ith the 2018 amendme nt of section 21.192 and repeal of s ection 2 1.196 , the Amended Guidance has become an informal age ncy sta tement merely resta t ing f

o r m ally promul g a ted rul es

— i.e., section 21.192 and the implications following the repea l of sect ion 21.196

— which would change it s statu s so that it is no longer a rule a s defined by the APA

. See LMV

- AL Ventures , 52 0 S.W.3d at 121 ( noting that in formal agenc y
stat em e nts me r ely re st ating formally promulgate d rules are not rules as defined by the APA )

. W e disag ree
. A lthough the Department may have repealed section 21.196 , which provided
relocation a ssistan ce benefits for mov ing billboard s, JGI argues in it s AP A C laim t h a t it i s

en tit l ed to rel ocation benefi ts under federal and state statutes and stat e regulati ons and policies

. I n its petition, JGI contests th e Ame nded Gu i dance ’ s pronouncement that “ the billboard st ructure

ow ner will not be provided reimbursement of exp e n ses to rel ocat e , ” alleg i ng that :
The [Amended ] Guidance violates JG I ’ s substantive rights afforded under the Un iform [Relocation Assistance and Re al Pr op e rty Ac quis ition P olicies Act o f 1970, 42 U.S.C. 46 22] , the Texas Property C o d e [ Tex

. Pr op. Code § 21.046] , the Tex as A dminist rative Code [ 43 Tex. Adm in. Code § 21.116], and [the Department] ’ s R elocation Assistance Manua l. As described above, under these S tate and Fede ral authorities, billboard o wners are guar anteed reimbursemen t o f reas o nab le m oving e xpenses when sig ns a r e relo cated to accommodate a h ighway pa rty. [The Department ’ s Amended] G u idance purpo rts to e limina te these right s and simultane ously r e place them with an illegal, De partment

- en acted policy.
The Department argue s in bri e fin g be fore th is Court that JG I ’ s cited “ State and Federal
Au thor ities ” ap ply on ly to personal property and that JGI “ seeks an un suppor ted interpretat ion of
the law su ch t h at, in addition to recovering compensa tion

. . . i t would also be entitle d to recov e r18

relocation assistance benefits to mov e billboards that have bee n acquire d by the State, and to obtain sign relocation permits f or billboards that have been acquir ed by t h e State. ” 4 Bu t the Depar tment ’ s p o s ition c onc erns questi ons to be determ ined on the merits , not at the p lea to the jurisdiction stage. See Sunset T ransp. , 3 57 S.W.3d at 702 (no ting that dete rmining whether appel le es have invo ked sub ject matter ju risdict i on in rule cha lleng e unde r sec t ion 2 001.03 8

“ d oes not req uire us to delve int o the m erits of the claims

— n or w ould suc h an inquiry be proper ” (ci tatio n omi tted )).

Regarding section 21.192, a comparison of that re gulatory provision with the
Amend ed Guid a nce reveals th at the Amended G uida n c e impo s es addi tional requirements

. A s JG I argu es, “ The [Department] ’ s [Amended] Guidance amends this sim ple requ irement [ of
timel y removal] by imposing add itional, arbitrary rest rain ts on sign owners

. ” Section 21.19 2 , as relevant he re and as amende d in 2 018 wi t h a dded text italiciz ed , provi des :

A commercia l sign that has been timely removed from a department cons truction project site may be relocated in a ccordance wit h this secti on [and other specified regulat ions] i f the sign is l egally erected a nd m a i ntaine d an d wi l l be within t he highwa y ri ght of way as a result of a highway construction project [

. ]

43 Tex. Admi n. Code § 21.192(a) (emphases added) ; see 4 2 Tex. Reg. 477 0 , 4788 (2 017) (proposing amended text ) ; 43 Tex. Reg. 1446, 145 0 (2018) (adopti ng a m e ndment lan guag e )

. As
releva nt here, t he Amended Guidan ce , in contrast, states:

4 In its motion to dis miss be fore the trial court , the D epartment argued : “ JGI ’ s complaint is al so moot because JGI ca nnot demonstra te that any alle g e d rule i s i nval id or inapplicable . As d iscusse d [ in the mot ion ] , [the Department] ’ s posit i on th at reloca tion assistance benefi ts are on ly available for the movi ng of personal p roperty, and position tha t obtaining a commercial s ign permit for a sign with i n the hig hwa y ri ght of way as a re sult of a high way construct ion project is subject to the o wner timely re moving the sign from t he Stat e ’ s project, are not in vio lation of any st atute. ”19

If the billb oard structure is not retained by the structure owner during acq uisition of the p roperty, the bi llboard structure owner and the owner of the s tructure permit (one i n the s ame or n ot), would no t be elig ible for a rel ocat ion permit, under 43 T.A.C. §21.192 [

. ]

. . . [The Depar t ment] wil l allow the billboard structure ow ner to retain the structu re for its salvage value and fo llow th e current Outdo or Advertising r eloc a t ion pe r mit ting regulations

. . . . I f th e billboard st ructure ow ner chooses to retain the structure and this is properly reflected in the deed, [the Depart ment] will provide the si gn owner [] a Notice to Vacate a t a dat e certain that c orresponds with the l a nguage in the d eed, which sh ould be n o le ss than 60 day s prior to the date on which the land on which the sign i s erected is needed for construction purpos es. If the bil lboard str ucture owner does not re move th e struc t ure per the dee d and Notice to Vaca t e , the o wne rshi p shall revert back to the state for remo val . The sign structure owner will for feit the salvage v alue pai d to the state AND their eligibilit y for a relocation permit under the Outdoor Advertising permitt i ng regulations.
Thus, JGI argu es th a t the A m end ed G u idance goes b eyond the tim ely removal re quirement by

“ requir [ ing ] sign owners to retain a structu re ‘ durin g ac quisition of the property ’ or lose eligibility for a r e location permit ” and imposing t he 60

- d a y requirement.

T he Amended G uidan c e ’ s te xt do es n ot “track ” se ction 21.1 92 ’ s language , bu t
rather “depart [s] from and effectively change[s] th at te xt ”

— in ot her words, the Amended
Guidance im poses new requirements. See Teladoc , 453 S.W.3d at 620 ( conclu d ing that agency ’ s

“ pronounceme nts

. . . a re t an tamount to amendm ent s to the e xis ting text ” of rule at issue because they “ hardly ‘track ’ ” rule ’s lang uage, “ra ther, they depart from and effecti vely change that text ”

an d that “even if we assume TMB ’s pronou n cement could some how be reconc iled wi t h [the

ru le ’s] t e xt, as t he agency insi sts , the lett er would still have the effect of amending the rule

so as t o adopt o ne of the alte rnative reasonable c onstruction s to which the current text
would be suscepti ble whi l e re jecting anoth er ” ) ; see als o LMV

- AL V e n t u r es , 520 S .W.3d at 1 22 (dis tingui shi ng Teladoc because “[i]n this cas e, by contrast , DADS ’s interpretatio n does no t amend Rule 92.62, c reate a new r ule, or impose new requir ements ”).20 The De partment ar gues th a t any differen ce between the A mended G u i dance a nd

sect ion 21.192 is a proper exe rcise of it s d iscretion : “ A s for the particulars of effe cting timely
removal of a billb oard pursuant to re vised § 21.192, [the Dep artment] certainly has discretion to
determi n e how that provis ion is met. ” While t h i s may b e true, the Depar tment may not ex ercise
its discretion by inf

ormally mak ing (1) a “statement of genera l applica bility ” (2) that “ does not
include a stat e men t re garding only the internal management or o rganiza t ion of a state ag ency and

not affectin g priva te rights or proced ures ” and (3) th at “ impleme nt s , interprets, or prescribes law or policy ” or “ describe s the pro cedure or practice requirement s of a stat e agency , ” unless it substantially complies with the APA ’ s rulem aking re quir ements. Te x. Gov ’ t C o d e § 2 00 1.003(6 ) ; see id. § 2001 .035 ( pro viding that rule is voidable unles s adopted in substantial complian ce with A PA ).

In sum, s ec tio n 2001.038 o f the Texas Govern ment Code permits a rule challenge

“ if it is a l leged t hat the rule or its thr eate ned ap p l icati on interf eres with or impairs, o r t hreatens to
inte rfere with or impair , a leg al right or privile ge of the plai ntiff. ” Id. § 2001 .038(a). JGI h as alleg ed that the Amen ded Guidance

— wh ich we have alrea dy dete r mined is a rule

— “ in ter feres
wi th or impa i r s , or t hreaten s to interfere with or imp air ” its lega l rights or privile ges under the
cited “ State and Fede ral Autho rities , ” regardless of the Departm ent ’ s amendments o f section
21.192 and repeal of section 21.196

. 5 A l ive controv ersy exists betw e e n JGI a n d the D epartment

a s to these i ssu es that concern “ [ t ] he validi ty and applicability ” of the Amended G uidance a s a rule , and thus the APA C laim is not moot

. See id. Acc ordingly , we reverse the trial court ’ s order dismissing the APA Cla im

.

5 JGI also plead ed, “ T he newly revised Administ rative Code, inc l u d i ng §§ 21. 164 and 21.192, provid es no author it y for [the Departm ent] to hold th at a sign owner ’ s per mit appli cati on is contingent o n the s ign owner’s actions be fore the Special Comm issione rs’ hearing.”21

D oes the trial cou r

t have ju risd

ict ion ov er t he UD JA Claim ? Having concluded that the Amended Guidance constitutes a rule for the purpose of th e APA Claim an d that there exists a live contr o v ersy as to the validity of the rule, we turn to
JGI ’ s UDJA C laim

. For its UD JA C l a im, J GI pl eade d:

JGI see ks a declarat ion that Defendants, Gus Cannon and James Bass, have acted ultra vires by commi ttin g non
- discretionary acts a nd exceeded their statuto r y authori ty in adopting and ena cting t he [Amended] Guidance a nd [the Dep artment] ’ s n ew po li cy for the treatm ent of sign s dis placed by State construction projects, an d therefore the [Amended] Guidance, and any Department pol icy rel ated to its enforcement o r enactmen t, are inv alid.

The De partm en t respond ed that the UD JA Claim is barred by t he re du ndant r emedies doc trine.

“Un der the redundant remedies doctrine, courts will not entertain an acti on brough t under the UDJA when th e same claim could be pursued t hr ough diff erent channels.”
Pat el v. T

exas Dep’t of Licensing & Reg

. , 46 9 S. W

. 3d 69 , 79 (Tex . 2015). H e re, the UDJ A
C laim seeks the same relief as the relief pleaded for in the APA Claim

— inv alidation of the
Amended Guidance and a ny Depar tment policy rela te d to its enforcement or enactm e nt. S ee
Tex as Dep ’ t of Pub. Safety v. S a l a zar , No

. 0 3

- 11

- 00478

- CV, 2 013 WL 5878 905 , at *9 (Tex. App.

— Austin Oct. 31, 2013, pet. denied) (mem. op.) (concluding that redundan t remedies
doct rine bars UDJ A claim when relief soug ht “i s essentially the same as the relief that they
soug ht thro ugh their [AP A ] claim s” an d that “ a party may not seek rel ief under the [UDJA] when
that relief is redundant to relief available under th e [AP A ] ” ) ; Texas State Bd. of Plumbing
Exam ’ rs v. Associ ated Plu mbing

- Heating

- Cooling C ontr a c t o r s of Te x . , Inc. , 31 S .W.3d 750, 753 (Tex. A p p.

— Au st in 200 0 , pet. dism ’ d by agr.) ( “ W hen a plaintiff files a proceeding that only challeng es the validity of an a dminis tra tive rule, the parti es are bound by the APA and may not
seek relief u nder the UDJA beca use suc h r elief would be redundant. ” ) ; cf

. S WEPI LP v. Rai l road22

Comm ’ n , 314 S.W.3 d 2 53, 269

– 70 (Tex. App.

— Austin 2010, pet. denied) ( “ A declaratory judgment cla im ‘ w ill not lie ’ when it is ‘ redundant ’ of a p arallel a dministr ative appeal and the

‘ remedy und er the APA is the sam e as that p rovided u n d e r the [ UDJ A ] ’

— reversal of the
agency ’ s f inal order

. ” (quoting Tex as Mun. Power Agency v. Public Util. Comm ’ n , 260 S. W.3d 647 , 651 ( Tex . App.

— Aust in 2008, no pet.)) )

.

Beca use we h ave concluded that the Amended G uidance is a rule und er the APA,

w e als o c o n clude t hat JGI ’ s UDJA Claim that is p red icated upon the ultra vires exception is barred by the redundant reme d ies do ctrine

. See Sunset Transp. , 357 S.W.3d at 705 (no ting t hat

“ [ a ] ssuming that appel lees replead u nder se ction 2001.038 , we agree with appe l l a nt s t ha t

a ppel lee s ’ UDJA claims [whic h a re p redicated upon the ultra vires e xception] would be
redundant remedies ” a nd “ would be subject to dis mi ssal ” ); Salazar , 304 S. W.3d at 906 n.7 ( “ To the extent the Appellee s also seek relief un der the UDJA in conn e c t ion w i t h t hese rule challenges, we di smi ss those claims for want of jurisdiction on the ground that a party may not
seek reli ef under the UDJA wh en such relief would be red undant t o relief under the APA. ” ). If
J GI were to prev ail on an ultra vires clai m , the o n l y r elie f generally available w oul d be
pro spective injunctive r e lief , which JGI has requested in its petition

. Se e Cit y of El Paso

v. Hein ri ch , 284 S.W.3d 366, 37 3

– 7 6 (Tex. 2009) (noting that “ retrospectiv e mone t ary claims [fo r ultra vires claims ] a re ge ne ral ly b ar red by immunity ” and tha t generally “ a cla imant who successfully proves an ultra vires claim is enti tled to p rospe ctive injunctiv e relief ” ) ; McLane C o.

v. T exas Alc oholic Beverage Comm ’ n , 514 S.W. 3d 871, 877 (Tex. App

. — Austin 2017, pet.
d e n ied) (n oti ng t ha t i f plaintiff were t o p revail on ultra vi res claim, its only relief would be prospective ). But thi s remedy is es sentially redun dant to the reme dies avai l a ble unde r the APA.
W e have held that co urts po ssess jurisdic tion t o award inju nc tiv e re lief “ in con nec tion wit h a23

declaratory judgment in vali dating a rule under APA section 2001.038. ” Balquinta , 429 S.W.3d

a t 750

. And we have concluded th at there is no har mful error

— and indicated that th ere i s no

er ror at all

— in the “ a ssert i o n of ju ris dict ion over the cl aims for in junctive relief to the exten t they are al so addressed, as a formal matter, to the [sta te agency offi cial] in his of fi cial capac ity

. ”
Id. We rested t his conclusion on the following reasoni ng:
[T]he distinctio n [be t w een s ui ng “ the State ” or a n a gency ve rsu s suing a human agent of “ th e State ” to reasse rt “ the State ’ s ” control] has far less s ignifican ce wh ere, as here, s overei gn imm unity has been waived s o as to permit a claim directly against a s tate agency (one agen t of “ t he St ate ” ) and the cl aim ant form all y pleads that claim, alterna t ively or additionally, against a human agent of

“ the Stat e. ” In t hose circumst ances, the distinct ion amounts me r ely to t wo different ways to plead for t he same rem edy against the same d e fenda nt

.

I d. ( emphasis add ed) ; see id

. a t 750 n. 1 15 ( suggesting that “ the injunctive

- relief claims against
DSH S and the Commis sioner, i n his official cap a c ity , are con sidered to be t he same claim for relief against the sam e party ” an d explaining tha t “ [a ] l te rna ti vel y, t his ultra

- vi re s theory wou ld
become relevant

— and would not provide merely a redundant remed y

— if, as a ppellants u rge, inju nctiv e relief cannot be ob tained against DSHS b y virtue of APA section 2001.038 ” ) ; cf.
H einric h , 2 84 S.W.3d at 372 (not i n g tha t “ ul tra vires suits do not at te mpt to exert control over
the state

— they attempt to reassert the contr ol of the state ” an d “ these suits do not seek to alter
go vernment policy b u t rather to enforce existing policy ” )

. Having conc luded that the U DJA
C l a im is b arr ed b y the redundant remed ie s d octrine , we affirm the trial court ’ s order as to the
dismissal of t he UDJA Claim.

S h ould JGI have been af for ded t he opportunity to conduct dis covery ?
W e need not decide whether J GI shou ld h ave been afforde d the o pport un ity to conduct discovery, as t he trial court has not made a decision on the merits as to that issue. The24

trial court m erely de n ied as moot the Depa rtm ent ’ s motion for pro tect io n from discovery

. Because we have con cluded that the ca use should n ot be dismi ssed for l a c k of ju ris dict io n , we

reverse the or de r d enying as moot the motion for protect ion from dis covery
.

CONCLUSIO N
For these reas on s, we rev ers e the trial c ourt ’ s order as to the dismiss al of the APA
Claim , affirm the order as to the dismiss al of t he UDJA C laim , and reverse the o r der a s to the
denial of the motio n for pr otect ion from discovery . We remand t he cause for furth er proceed in gs

cons istent with this op inion.

_______ _______________________________ ____ Melissa Goodw in, J us tice

Before Justices Goodw in, B aker, a nd Kelly
Affirme d in P art; Reversed and Rema nded in P art
File d: October 9, 2020