NUMBER 13-22-00358-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

SAVERGV, SIERRA CLUB, 

AND CARRIZO/COMECRUDO 

NATION OF TEXAS, INC., Appellants,

v.

TEXAS GENERAL LAND OFFICE

AND DAWN BUCKINHAM, M.D., IN

HER OFFICIAL CAPACITY AS THE

TEXAS LAND COMMISSIONER, Appellees. 

 

On appeal from the 445th District Court 

of Cameron County, Texas.
2

NUMBER 13-22-00359-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

SAVERGV, SIERRA CLUB, 

AND CARRIZO/COMECRUDO 

NATION OF TEXAS, INC., Appellants,

v.

CAMERON COUNTY, Appellee.

 

On appeal from the 445th District Court 

of Cameron County, Texas.
3

NUMBER 13-22-00360-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

SAVERGV, SIERRA CLUB, 

AND CARRIZO/COMECRUDO 

NATION OF TEXAS, INC., Appellants,

v.

TEXAS ATTORNEY GENERAL, Appellee.

 

On appeal from the 445th District Court 

of Cameron County, Texas.

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Longoria and Silva

Memorandum Opinion by Justice Silva
4

Appellants SaveRGV, Sierra Club, and Carrizo/Comecrudo Nation of Texas, Inc.

(the Tribe), filed a suit seeking a declaratory judgment that Texas Natural Resources 

Code §§ 61.011(d)(11), and 61.132, which permit the closure of beaches for space flight 

activities, violates the Texas Constitution’s Open Beaches Amendment. See TEX. CONST.

art. I, § 33(c). Appellants also sought a declaratory judgment that § 15.32(d) of Title 31 of 

the Texas Administrative Code, which provides for the closure of the beach and 

associated access points for space flight activities, violates the Open Beaches 

Amendment. See id. Appellees Cameron County, the Texas General Land Office (GLO), 

Dawn Buckingham, M.D. in her official capacity as the Texas Land Commissioner

(Commissioner),

1 and the Texas Attorney General each filed a plea to the jurisdiction, 

arguing, among other things, that appellants lacked standing. The trial court granted each 

appellee’s plea to the jurisdiction, dismissing appellants’ claims.

By three issues, which we reorder and construe as two, appellants argue that the 

trial court erred by granting the pleas to the jurisdiction because (1) appellants 

demonstrated that they had standing; and (2) governmental immunity is waived in cases 

challenging the constitutionality of a statute, such as here. We reverse and remand.

I. BACKGROUND

The Texas Constitution provides that “[t]he public, individually and collectively, has 

an unrestricted right to use and a right of ingress to and egress from a public beach. The 

right granted by this subsection is dedicated as a permanent easement in favor of the 

1 When this suit originated, George P. Bush was the Texas Land Commissioner. However, Dawn 

Buckingham, M.D., was elected as the Texas General Land Office Commissioner on November 8, 2022, 

and took office on January 10, 2023. See TEX. R. APP. P. 7.2(a) (automatically substituting public officers if 

the office holder changes before final disposition).
5

public.” Id. art. I, § 33(b). This provision, commonly referred to as the Open Beaches 

Amendment, permits the legislature to “enact laws to protect the right of the public to 

access and use a public beach and to protect the public beach easement from 

interference and encroachments” but “does not create a private right of enforcement.” Id.

art. I, § 33(c), (d). In 2013, the legislature enacted Texas Natural Resources Code 

§ 61.132, which permits the commissioners in a county bordering the Gulf of Mexico or 

its tidewater to temporarily close a beach in reasonable proximity to a space flight launch 

site or access points to the beach in the county on launch dates. TEX. NAT. RES. CODE 

ANN. § 61.132.

According to SaveRGV’s first amended petition, following the passage of § 61.132, 

appellees have allowed the closure of Boca Chica Beach in Cameron County for up to 

450 hours per year to allow Space Exploration Technologies Corporation (SpaceX) to 

conduct activities related to space flight launches. Such closures prompted SaveRGV to 

file a suit seeking declaratory judgment that § 61.132 violates the Open Beaches 

Amendment and is thus unconstitutional. Moreover, SaveRGV asserted that Texas 

Natural Resources Code § 61.011(d)(11), which allows the Commissioner to promulgate 

rules for the closure of beaches for space flight launches, violated the Open Beaches 

Amendment.

2 See id. § 61.011(d)(11). Consistent with its challenge to §§ 61.011(d)(11) 

and 61.132, SaveRGV also challenged § 15.32(d) of Title 31 of the Texas Administrative 

Code, which “provide[s] for the closure of a beach and associated access points during 

2 Appellants asserted facial and as-applied constitutional challenges to both statutes. See Tenet 

Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex. 2014) (explaining the distinction between facial and asapplied challenges to the constitutionality of a statute).
6

space flight activities as consistent with state law.” 31 TEX. ADMIN. CODE § 15.32(d) (2023) 

(Tex. Gen. Land Off., Certification Status of Cameron County Dune Protection and Beach 

Access Plan). Lastly, SaveRGV challenged the constitutionality of a memorandum of 

agreement between the GLO and Cameron County, as well as a Cameron County 

Commissioner’s Court order permitting the closure of Boca Chica Beach and State 

Highway 4 for space flight launches.

SaveRGV describes itself as

a Texas non-profit corporation that advocates for environmental justice and 

sustainability and the health and well-being of the Rio Grande Valley

community. SaveRGV also promotes the conservation and protection of 

wildlife habitat and the natural areas of the Rio Grande Valley, including by 

defending the public’s right to access Boca Chica Beach. . . . SaveRGV is 

not a membership organization, but it is led, guided, and funded by persons 

who recreate in, reside near, and otherwise regularly use the Boca Chica

Beach; these individuals bear the indicia of membership.

SaveRGV alleged that its “members reside, recreate, use, and otherwise regularly access

Boca Chica Beach” and they “have all been impacted by the frequent closure of the 

[b]each and of the [s]tate [h]ighway that provides the only access to the [b]each.”

SaveRGV described how the closures have impacted four specific members; it went on 

to allege that “[o]n several occasions, members of SaveRGV have attempted to visit the 

[b]each, only to be turned away by local law enforcement enforcing the County’s closure 

of the [b]each or of State Highway 4.”

Sierra Club and the Tribe filed a petition in intervention, joining SaveRGV’s request 

for declaratory relief. Sierra Club alleged that its “members include residents of Cameron 

County who regularly recreate and otherwise rely on Boca Chica Beach for a variety of 

activities.” The Tribe alleged that it is a Texas non-profit membership organization whose
7

purposes include serving “the cultural, social, educational, spiritual, linguistic, economic, 

health, and traditional needs of its members and descendants of the Carrizo/Comecrudo 

Nation of Texas and other indigenous or Native American groups.”

According to Sierra Club,

its corporate purposes are to explore, enjoy, and protect the wild places of 

the earth, to practice and promote the responsible use of the earth’s 

ecosystems and resources, to educate and enlist humanity to protect and 

restore the quality of the natural and human environment, and to use all 

lawful means to carry out these objectives.

Sierra Club described how the beach closures have affected one member in particular 

who attempted to visit Boca Chica Beach on her birthday but was turned back due to 

beach closure.

Appellees each filed pleas to the jurisdiction, seeking to have appellees’ suit 

dismissed. The Attorney General argued that (1) appellants lacked standing; 

(2) sovereign immunity forecloses appellees’ facial constitutional challenge; and 

(3) appellants could not allege a viable constitutional challenge. Cameron County argued 

in its plea that (1) the Open Beaches Amendment does not create a private right of 

enforcement by its own terms, see TEX. CONST. art. I, § 33(d); and (2) appellants lacked 

standing. The GLO and Commissioner argued in their plea that (1) appellants lacked 

standing; (2) appellants could not demonstrate an injury-in-fact; (3) any alleged injury was 

not traceable to acts or omissions by the GLO or Commissioner; (4) the Open Beaches

Amendment does not create a private right of enforcement by its own terms, see id.; 

(5) claims against the GLO and Commissioner were redundant and thus only the GLO 

should remain, if any; and (6) sovereign immunity protects the GLO and Commissioner

from suits seeking declaratory relief.
8

The trial court granted each plea to the jurisdiction without explaining its basis for 

doing so. These appeals followed.

II. STANDARD OF REVIEW

“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a 

cause of action without regard to whether the claims asserted have merit.” Bland Indep. 

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s 

subject matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of 

law; therefore, when the determinative facts are undisputed, we review the trial court’s 

ruling on a plea to the jurisdiction de novo. Id. A plaintiff has the burden to affirmatively 

demonstrate the trial court’s jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 

544, 550 (Tex. 2019). 

III. APPLICABLE LAW

A. Standing

1. Generally

Standing, as a component of subject matter jurisdiction, is never presumed and 

cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44

(Tex. 1993). When determining whether a party has standing, we may look to analogous 

federal jurisprudence. See Heckman v. Williamson County, 369 S.W.3d 137, 151–52

(Tex. 2012). To have standing, (1) a plaintiff must have suffered an injury in fact, (2) the 

injury must be fairly traceable to the defendant, and (3) the injury must likely be 

redressable by a favorable decision from the court. Id. at 154–55 (citing Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560–61, (1992)).
9

To constitute an injury in fact, there must be “an invasion of a legally protected 

interest which is (a) concrete and particularized, and (b) actual or imminent, not 

conjectural or hypothetical.” Id. at 154 (cleaned up). The plaintiff themself must have

personally suffered the injury rather than the public at large. Id. at 155. “Constitutional 

harms—whether actual or imminent—are sufficient.” Id. Moreover, the plaintiff’s injury 

must be fairly traceable to the challenged action of the defendants, not an “injury that 

results from the independent action of some third party not before the court.” Id. Finally 

“[t]o satisfy redressability, the plaintiff need not prove to a mathematical certainty that the 

requested relief will remedy his injury—he must simply establish a ‘substantial likelihood 

that the requested relief will remedy the alleged injury in fact.’”3 Id. at 155–56 (quoting Vt. 

Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)).

“To challenge a statute, a plaintiff must both suffer some actual or threatened 

restriction under the statute and contend that the statute unconstitutionally restricts the 

plaintiff’s rights.” Patel v. Tex. Dep’t of Lic. & Regul., 469 S.W.3d 69, 77 (Tex. 2015)

(cleaned up). “Where there are multiple plaintiffs in a case, who seek injunctive or 

declaratory relief (or both), who sue individually, and who all seek the same relief, the 

court need not analyze the standing of more than one plaintiff—so long as that plaintiff 

has standing to pursue as much or more relief than any of the other plaintiffs.” Patel, 469 

S.W.3d at 77 (cleaned up).

2. Associational Standing

An association has standing to sue on behalf of its members when “‘(a) its 

3 Appellees did not challenge redressability as an element of standing.
10

members would otherwise have standing to sue in their own right; (b) the interests it seeks 

to protect are germane to the organization’s purpose; and (c) neither the claim asserted 

nor the relief requested requires the participation of individual members in the lawsuit.’” 

Tex. Ass’n of Bus., 852 S.W.2d at 447 (quoting Hunt v. Wash. State Apple Advert.

Comm’n, 432 U.S. 333, 343 (1977)). However, an association does not need to have 

formal membership to have associational standing, so long as the individuals associated 

therewith bear “all the indicia of membership.” Friends of the Earth, Inc. v. Chevron Chem. 

Co., 129 F.3d 826, 828 (5th Cir. 1997) (citing Hunt, 432 U.S. at 344–45). “Under the 

indicia-of-membership test, we consider whether an organization’s purported ‘members’

(1) elect the organization’s leaders, (2) serve in the organization’s leadership, (3) finance 

the organization’s activities, (4) associate voluntarily with the organization, and (5) provide 

sworn testimony of membership.” Students for Fair Admissions, Inc. v. Univ. of Tex. at 

Austin, 37 F.4th 1078, 1084 n.7 (5th Cir. 2022) (citing Hunt, 432 U.S. at 344–45).

B. Sovereign Immunity

Sovereign immunity protects the State of Texas and its political subdivisions from 

liability for negligence. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 

177 (Tex. 1994). However, immunity may be waived by constitutional or statutory 

provisions. Id. If a political subdivision of the State enjoys sovereign immunity, the trial 

court does not have subject matter jurisdiction. Miranda, 133 S.W.3d at 225–26. Whether 

a court has subject matter jurisdiction is a question of law, which we review de novo. Id.

at 226. A waiver of immunity must be clear and unambiguous. Oncor Elec. Delivery Co. 

LLC v. Dall. Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012).

Under the UDJA, “[a] person . . . whose rights, status, or other legal relations are 
11

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.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). If a statute, 

ordinance, or franchise is alleged to be unconstitutional, “the attorney general of the state 

must . . . be served with a copy of the proceeding and is entitled to be heard.” Id.

§ 37.006(b). This provision of the UDJA waives sovereign immunity for suits challenging 

the constitutionality of a statute. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6

(Tex. 2009) (first citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b); then citing Wichita 

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697–98 (Tex. 2003) (“[I]f the Legislature 

requires that the State be joined in a lawsuit for which immunity would otherwise attach, 

the Legislature has intentionally waived the State’s sovereign immunity.”); and then citing 

Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994)); see also Swanson, 590 

S.W.3d at 552 (noting that the UDJA provides “a limited waiver [of immunity] for 

challenges to the validity of an ordinance or statute”).

Under the APA, “[t]he validity or applicability of a rule . . . may be determined in an 

action for declaratory judgment if it is alleged that the rule or its threatened application 

interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege 

of the plaintiff.” TEX. GOV’T CODE ANN. § 2001.038(a). “The state agency must be made a 

party to the action.” Id. § 2001.038(c).

IV. ANALYSIS

A. Standing

By their first issue, appellants argue that they possessed standing to pursue their 

claim. In contrast, appellees contend, through a multifaceted argument, that appellants 
12

lack standing to bring their suit. Specifically, appellees argue that appellants lack standing 

because: (1) their members did not suffer an injury-in-fact;4 (2) their challenge to Texas 

Natural Resource Code §§ 61.011(d)(11) and 61.132 and the Cameron County 

Commissioners’ Court order fails because the alleged injury is not traceable to any action 

by the appellees; (3) Texas Constitution Article I, § 33 does not create a private right of 

enforcement; and (4) the UDJA does not provide a separate basis for standing.

1. Injury-in-Fact

Appellants argue that they did in fact suffer an injury-in-fact, not just the public at 

large. We agree. The Open Beaches Amendment provides the public, individually and 

collectively, with the unrestricted right to use and a right of ingress to and egress from a 

public beach in the form of a permanent easement. TEX. CONST., art. I, § 33(b) (emphasis 

added). Sierra Club and the Tribe’s petition in intervention pleaded specific times their

members attempted to use their permanent easement to access the public beaches but 

were denied due to closure for space flight launches. See Severance v. Patterson, 370 

S.W.3d 705, 721 (Tex. 2012) (“Because the easement holder is the dominant estate 

owner and the land burdened by the easement is the servient estate, the property owner 

may not interfere with the easement holder’s right to use the servient estate for the 

purposes of the easement.”). Thus, although the beach closures affected the public at 

4 The Attorney General’s plea to the jurisdiction also challenged SaveRGV’s associational standing 

because it did not plead facts demonstrating that the individuals associated with the organization bore the 

indicia of membership. See Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 828 (5th Cir. 

1997) (citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 344–45 (1977) (holding that an 

association does not need to have formal membership to have associational standing, so long as the 

individuals associated therewith bear “all the indicia of membership”)). Sierra Club, who does have a 

traditional membership structure, intervened in the suit. As discussed infra, because at least Sierra Club 

has standing, we do not review whether SaveRGV would have standing independently. See Patel v. Tex. 

Dep’t of Lic. & Regul., 469 S.W.3d 69, 77 (Tex. 2015).
13

large, the individual members pleaded an injury-in-fact specific to them, not just the public 

at large. See Heckman, 369 S.W.3d at 155.

2. Traceability

Appellees next argued in their pleas that appellants’ alleged injury cannot be traced 

to any acts or omissions of the GLO, the Commissioner, or Cameron County, but instead 

to the Texas Legislature and the Cameron County Commissioner’s Court. Appellants in 

turn argue that their injuries are directly traceable to the unconstitutional statutes and 

actions taken thereunder. Again, we agree with appellants. Although the legislature 

passed the statute that permits the closure of beaches for space flight launches, it is 

Cameron County itself who has actually closed the beaches. The GLO and Commissioner 

permitted the beach closure through the adoption of § 15.32(d) of Title 31 of the Texas 

Administrative Code. See 31 TEX. ADMIN. CODE § 15.32(d). Appellees provide no authority 

for their contention that Cameron County Commissioners Court is the proper defendant 

as opposed to the County itself. See TEX. R. APP. P. 38.1(i); see also Tex. A & M Univ. 

Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“[A] suit against a state official is 

merely ‘another way of pleading an action against the entity of which [the official] is an 

agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see, e.g., Flores v. 

Cameron County, Texas, 92 F.3d 258, 261 (5th Cir. 1996) (dismissing claims against 

County Judge in his official capacity as redundant of claims against Cameron County).

Accordingly, we conclude that appellants’ alleged injury is fairly traceable to the conduct 

of Cameron County and the GLO. See Heckman, 369 S.W.3d at 155.

3. Private Right of Enforcement

As noted, the Open Beaches Amendment states that it “does not create a private 
14

right of enforcement.” TEX. CONST. art. I, § 33(d). Appellees argued in their pleas that this 

provision necessarily prohibits appellants from challenging the constitutionality of the 

statutes and rules permitting the closure of beaches for space flight launches.

5 However, 

as appellants point out, they did not bring a private action to enforce their right to access 

the beach. Such an action would most likely take the form of an injunction against a 

private entity, such as SpaceX, to prohibit their space flight launches that lead to the 

closure of Boca Chica Beach. Instead, appellants challenge the constitutionality of the 

statutes, rule, memorandum of agreement, and order.

Appellees rely on Texas Medicine Resources, LLP v. Molina Healthcare of Texas, 

Inc., which held that an insurance code provision regarding the payment for emergency 

care services performed by out-of-network physicians did not create a private cause of 

action. 659 S.W.3d 424, 435 (Tex. 2023). However, Texas Medicine Resources involved 

a group of physicians suing an insurance provider for payment under the insurance code 

provision being considered. See id. In other words, the plaintiffs brought suit against a 

private third-party rather than challenging the constitutionality of the statute. See id. at 

428–30. Texas Medicine Resources is thus inapposite. Because appellants did not bring 

a private cause of action to enforce their right to access the beach, but instead brought a 

declaratory judgment action seeking to have the statutes and rule declared void, 

appellants’ suit is not barred. See TEX. CONST. art. I, § 33(d); see also id. art. I, § 29 (“To 

guard against transgressions of the high powers herein delegated, we declare that 

every[]thing in this ‘Bill of Rights’ is excepted out of the general powers of government, 

5 Although the Attorney General abandoned this argument at oral argument, the GLO and 

Cameron County maintained it.
15

and shall forever remain inviolate, and all laws contrary thereto, or to the following 

provisions, shall be void.”).

4. UDJA Standing

Lastly, appellees now argue on appeal that “the UDJA does not provide any 

separate basis for standing.” Because we conclude that appellants satisfied injury-in-fact 

and traceability, they have standing, and we need not address appellees’ argument that 

“the UDJA does not provide any separate basis for standing.” Accordingly, we sustain 

appellants’ first issue.

B. The Commissioner 

The GLO and the Commissioner next argued in their plea that the trial court 

properly dismissed appellants’ suit against the Commissioner because claims against the 

Commissioner are redundant to those against the GLO. “Under Texas law, a suit against 

a government employee in his official capacity is a suit against his government employer 

with one exception: an action alleging that the employee acted ultra vires.” Franka v. 

Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (internal citations omitted). Appellants’ suit 

against the Commissioner is, in essence, an ultra vires suit: appellants allege that the 

Commissioner adopted the rule in question in contravention of the Texas Constitution and 

seek a declaration of such. See Heinrich, 284 S.W.3d at 372–73 (“[I]t is clear that suits to 

require state officials to comply with statutory or constitutional provisions are not 

prohibited by sovereign immunity . . . . To fall within this ultra vires exception, a suit must 

not complain of a government officer’s exercise of discretion, but rather must allege, and 

ultimately prove, that the officer acted without legal authority or failed to perform a purely 

ministerial act.”); see also Hall v. McRaven, 508 S.W.3d 232, 240 (Tex. 2017) (“[A]n ultra 
16

vires suit must lie against the ‘allegedly responsible government actor in his official 

capacity.’” (quoting Patel, 469 S.W.3d at 76)). Accordingly, appellants’ suit against the 

Commissioner is not prohibited.

C. Immunity

Appellants argue that the UDJA expressly waives sovereign immunity in suits 

challenging the constitutionality of a statute. See Heinrich, 284 S.W.3d at 373 n.6. We 

agree. Longstanding case law holds that the UDJA, which requires the inclusion of the 

relevant governmental unit as a party, waives immunity for suits seeking to have a statute 

declared unconstitutional. See id.

Appellees argue for the first time on appeal that “[s]ince [a]ppellants challenged 

the [a]ppellees’ actions under the aforementioned provisions of the Texas Natural

Resources Code, the UDJA does not waive sovereign immunity vis-à-vis [a]ppellants’ 

claims against the [a]ppellees.”6 However, appellees misstate appellants’ suit. Appellants 

are not challenging appellees’ actions, but instead seek a declaratory judgment that the 

statutes and rule in question are invalid and violative of Texas Constitution, article I, § 33.

In other words, appellants are challenging the validity of a statute, which is expressly 

permitted by the UDJA and under long-standing precedent. See Heinrich, 284 S.W.3d at

373 n.6; see also Swanson, 590 S.W.3d at 552 (“[T]he UDJA does not contain a general 

waiver of sovereign immunity, providing only a limited waiver for challenges to the validity 

of an ordinance or statute.”); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 

2011) (per curiam) (“[T]he state may be a proper party to a declaratory judgment action 

6 Appellees do not elaborate on how appellants’ pleadings challenge their actions rather than the 

statutes.
17

that challenges the validity of a statute.”). Moreover, the APA provides that a party may 

challenge the validity or applicability of a rule and that the state agency must be made a 

party to the action. See TEX. GOV’T CODE ANN. § 2001.038(a), (c). Accordingly, Cameron 

County and the GLO’s immunity is waived. Appellants’ second issue is sustained.

D. Merits Challenge

Appellees also argued in their pleas that appellants’ suit fails on its face because 

the challenged statutes are “plainly rational” and “do[] not violate the right to public beach 

access.” Appellants, in turn, contend that this argument goes to the merits of their case 

rather than to whether the trial court possessed jurisdiction. Appellees assert that the 

statutes and rule provide “for the protection of the public health, safety, and welfare on 

dates when an FAA-approved launch is to take place.” Senate Comm. On Admin., Bill 

Analysis, Tex. H.B. 2623, 83 Leg., RS. at 1 (2013). During oral argument, the Attorney 

General cited Klumb v. Houston Municipal Employees Pension System, wherein the 

Texas Supreme Court held that the plaintiffs “failed to plead a viable equal-protection 

claim because the board’s actions are rationally related to at least two legitimate 

government objectives which are promoted by the challenged classification.” 458 S.W.3d 

1, 13–14 (Tex. 2015). There, the Texas Supreme Court reviewed the trial court’s order 

granting the Houston Municipal Employees Pension System’s (HMEPS) plea to the 

jurisdiction as to the plaintiff’s equal protection and due process claims. See id. at 3–4.

Ultimately, the court upheld the dismissal because the plaintiffs failed to plead “viable” 

constitutional claims; specifically, the court concluded that HMEPS had a rational basis 

for treating employees and former employees of the City of Houston differently. See id.

However, Klumb did not involve a challenge to the constitutionality of a statute, but rather
18

involved a challenge to HMEPS’s actions (its classification of employees) under the Texas 

Constitution equal protection clause. See id. 3–4 (applying TEX. CONST. art. I, § 3). Thus, 

to the extent appellees argue that Klumb stands for the proposition that we must 

determine the merits of appellants’ constitutional arguments at this stage of the 

proceeding, we are unpersuaded.7 Accordingly, Klumb does not compel us to uphold the 

dismissal of appellants’ suit.

E. Redundant Remedies

Lastly, appellees argue for this first time on appeal that appellants’ UDJA claims 

are barred by the redundant remedies doctrine because they challenged the GLO’s 

amended rule under the APA. See TEX. GOV’T CODE ANN. § 2001.038 (permitting a 

declaratory judgment regarding the validity or applicability of an administrative rule). 

“Under the redundant remedies doctrine, courts will not entertain an action brought under 

the UDJA when the same claim could be pursued through different channels.” Patel, 469 

S.W.3d 79. “When a plaintiff files a proceeding that only challenges the validity of an 

administrative rule, the parties are bound by the APA and may not seek relief under the 

UDJA because such relief would be redundant.” Id. However, similar to Patel, the 

appellants here challenge more than just the validity of an administrative rule—they 

challenge the constitutionality of statutes and the commissioner’s court order as well. See 

7 We recognize that statutes are not always reviewed for constitutionality under a means-end test, 

such as rational basis, intermediate scrutiny, or strict scrutiny. For example, the United States Supreme 

Court rejected the application of such tests to determine the constitutionality of statutes under the Second 

Amendment. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 19 (2022) (“[T]the government 

must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer 

bounds of the right to keep and bear arms.”). However, we do not decide today what test should be applied 

to determine the constitutionality of the challenged provisions.
19

id. at 80. Accordingly, the redundant remedies doctrine does not bar appellants’ UDJA 

claims. See id. (“Here the Threaders challenge both rules as defined by the APA and 

statutes. Because the Threaders cannot attack the constitutionality of the statutes 

pursuant to [§] 2001.038 of the APA, their UDJA claims are not barred by the redundant 

remedies doctrine.”).

V. CONCLUSION

Having concluded that the appellants possessed standing and that immunity was 

waived for each appellee, and having rejected the appellees’ additional arguments 

supporting dismissal, we sustain appellants’ sole issue. We reverse the trial court’s 

judgment and remand this case to the trial court for further proceedings.

CLARISSA SILVA

Justice

Delivered and filed on the

1st day of February, 2024.