### 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. 03-17-00463- CV

Thomas & Le wi n Associates, Inc., Appellant

v. Texas Health and Human Servic es Com m ission , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0374 4, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Thomas & L ewin Associates, I nc. filed a petition f or judicial revie w of a final order of the Appea ls Division of the Texas Hea lth and Human Service s Commi ssion (HHSC). The order s u s t ai n ed ce rtain cost adjustments that the HHSC made in an informal revie w of Appellant’s mandatory cost repor ts filed in compliance with HHSC reg ulations. See 1 Tex. Admin. Code § 355.722(j)(2) (2019) (Texas Hea lth & Human S ervs. Com m’n, Reporting Costs by Home and Communi ty -ba s ed Service s (HCS) and Texas Home L iving (TxHmL ) Providers). I n a final order , the trial court g rante d the HHSC’s plea to the jurisdiction an d, to the extent nece ssary , g rante d the HHSC’s motion for summary judgme nt. For the following rea sons, we aff irm the trial court’s or der g ranting the HHSC’s plea to the jurisdiction.BACK GR OUND Ap p el l ant provides long- term car e for persons with mental reta rdation or rela ted conditions under a contra ct with the State of Texas in the HCS prog ram funded by Medica id. As an HCS provider, Appellant is require d to file annual cost repor ts with the HHSC. See id. I n 2010, the HHSC issued Appellant a letter stating that it intended to rec oup $80,528 from Appellant based on adjustments the HHSC m ade to the undisputed actua l costs incurre d and repor ted on Appellant’s 2006 cost repor

t. See id. (j)(5) (outlining cost adjustment and rec oupment proce dures)

. Appellant

re quested informal revie w of the HHSC’s rec oupment decision, specific ally reque sting revie w o f particula r “l i n es” of its 2006 cost repor t. See id. §§ 355.110(c) (2019) (Texas Hea lth & Human Servs. C omm’n, I nformal Reviews and Formal Appeals), 355.72 2 (b ) (“ A provider who di sag ree s with HHSC’s exclusion or adjustment of items in cost repor ts may reque st an i n formal revie w and, whe n appropr iate, an a dminist rative he aring as specified in § 355.110 of this titl e (r elating to I nform al R ev i ew s and For mal Appea ls).”). After the informal revie w, the HHSC reduc ed its

rec oupment demand to $63,611. See id. § 355.722(j)(5) (re quiring HHSC to notify providers of any adjustments to rec oupment amount afte r informal revie w of initial rec oupment deter mination). The HHSC attache d an appendix to it s I nformal Review Dec ision outlining the various lines aff

ecte d by its adjustm en t t o the rec oupment amount. Appellant reque sted a formal hear ing befor e an administrative law judge (AL J ) with the HHSC’s Appea ls Division, taking issue with sever al lines of the cost repor t that the HHSC had adjusted in its informal revie w. See id. § 355.110(d) (providing that “intere sted party who disag ree s with the results of an informal revie w . . . may file a f ormal appe al”)

.

2T h e AL J conducte d the formal hear ing on September 14, 2012, but announce d no

rendition of judgme nt on t h e m er i t s i n open court. On May 24, 2013, the AL J signe d a “F inal Orde r.” The Final Or der ma de the f ollowing r eleva

nt Finding s of Fa cts and Conclusions of L aw: Finding of Fa ct 7. On November 1 7 , 2 0 1 0 , HHSC notified Appellant that it had completed the I nformal Review an d reduc ed the amount that it would rec oup to $63,611.00. Finding of Fa ct 11. At the hear ing Appellant and HHSC stipulated that only line 181 rema ined at issue. Finding of F act 12. L ine 181 repr esente d Staff Ex penses - Case Manag ers Salaries and Wage s. A portion of the salarie s and wag es repor ted on line 181 wer e for rela ted party wag es. Finding of Fa ct 17. The allowable non-re lated party hourly wag e rate for employ ees who work a s Case Mana g ers wa s $16.99 per hour in 2006. Finding of Fa ct 18. Appellant showed that non-re lated parties provided 40% or more of the hours worke d as Case Manag ers, there by allowing Appellant to c alculate the rela ted par

ty ’s re portable hour s at the ra te of $16.99. Finding of Fa ct 1 9

. HHS C adjusted line 181 of Appellant’s 2006 Cost Report to ref lect the a llowable ra te of pa y for r elated pa

rty employ ees. Finding of Fa ct 20. HHSC proper ly adjusted line 181 of Appellant’s Cost Report to ref lect the a llowable ra te of pa y for r elated pa

rty employ ees. Co n c lu s io n o f L a

w 2

. T h e p r o p e r r a

te o f p a y f o r A p p e ll a n t’ s r e la te d p a r ty ’ s r e p o r ta b le hours in 2006, was $16.99. Conclusion of L aw 3. HHSC corr ectly adjusted Appellant’s 2006 Cost Report to ref lect the pr oper c alculation of the rate of pay for r elated pa

rties.

The F inal Orde r then c oncluded:

3I T I S ORDERED that the I nformal Review of adjustments to Appellant’s 2006 Cost

Report IS SUST AINED and that HHSC IS AUTHORIZED to rec ou p $5,400.00 from Appe llant for adjustments to its 2006 Cos t Report.

Neither the HHSC nor Appellant filed a motion for rehe aring with the Appea ls Division taking issue with the Final Orde r or any of its finding s of fac t or conclusions of law. See id. § 357.498(c) (Texas Hea lth & Human Servs. Comm’n, Final Orde rs and R eh ea ri n g ) (2019) (“A party must file any motion for rehe aring

. . . on or befor e the 20th day afte r the final order is presumed rec eived.” ); see also BFI W

aste Sys. of N. Am. v. Martinez Envt’l Grp. , 93 S.W .3d 570, 5 7 8 (T ex . App.—Aust in 2002, pet. denied) (holding that to prese rve err or, complaining party ’s motion for rehe aring must set forth particula

r finding of fac t, conclusion of law, ruling , or other ag ency action that party asser ts

was e rror and leg al basis upon which c laim of err or re sts). On Aug ust 22, 2013, the HHSC filed with the Appea ls Division a “Motion for Orde r Nunc Pro Tunc” seeking to amend the Final Orde r to chang e its incorre ct rec itation of the date of the hear ing a nd amount of re coupment orde red. I n its mot ion, the HHSC arg ued that the AL J made a cler ical err or in memorializing the rec oupment amount to which the HHSC was en titled beca use, in sustaining the I nformal Review Dec ision’s adjustment of Appellant’s costs, the AL J “upheld all of HHSC’s adjustments” and, there fore , “af firmed the adjusted rec oupment of $63,611.00 specifie d in HHSC’s [I ]nformal [R ]eview Dec ision of November 17, 2010.” On August 27, 2013, the AL J signe d an “Or der on Motion for J udg ment Nunc Pro Tunc,” order ing that “a J udg ment Nunc P ro Tunc be enter ed as it appea rs in the attache d and corr ecte d final order , entitled: NUNC PRO TUNC FI NAL ORDER.” The attache d Nu n c P ro Tunc Final Orde r (NPT Orde r) was identical to the

4orig inal Final Orde r except for its m o d i fi ca t ion of the rec ited hear ing date and the amount of

rec oupment authorized in the conc luding se ntence :

I T I S ORDERED that the I nformal Review of adjustments to Appellant’s 2006 Cost Report IS SUST AINED and that HHSC IS AUTHORIZED to rec oup $63,611.00 from Appe llant for adjustments to its 2006 Cos t Report.

On Septem ber 16, 2013, Appellant filed with the Appea ls Division a Motion for Rehea ring challeng ing the NPT Orde r “cha ng ing the order ed rec oupment from the amount of $5,400.00 contained in the Final Orde r issued in this cause on M ay 2 4 , 2 0 1 3 t o the amount of $63,611.00.” See 1 Tex. Admin. Code § 357.498. Appellant’s motion contende d that the Appea ls Division “lost jurisdiction of this matter on May 24, 2013, the expiration of the time for filing a motion for rehe aring on the Final Orde r . . . [ an d ] the Nunc Pro Tunc Final Orde r is there fore i n valid.” The motion also challeng ed Finding s of Fa ct 16–20 and Conclusions of L aw 2 an d 3

. When its motion for rehe aring was overr uled by operation of law, see id. (e) (providing that, if judge does not rule on motion for rehe aring within 45 day s af ter date final order was mailed, motion is

overr uled by opera tion of law), Appellant filed a p et i t i o n fo r judicial revie w in the district court seeking revie w of the N PT Order and a de clar atory

judgme nt that the NPT Order was void. Appellant filed a motion for summary judgme nt on its de clar atory -judg ment claim. The HHSC filed a plea to the jurisdiction and a cross-motion for summary judgme nt. I n its plea, the HHSC contende d that the trial court lacke d jurisdiction over the cause beca use Appellant “fa iled to exhaust its administrative remed i es befor e filing this suit” by failing to “timely file a motion for rehe aring in response to HHSC’s May 24th Final Orde r.” After a hear ing on all of the motions, the

5trial court g rante d the HHSC’s plea to the jurisdiction. The trial court’s order also provided that “to

the extent it is nece ssary to rea ch the motions for summary judgme nt, Def endant’ s Cross-Motion for Summary J udg ment is GRANTED, and Plaintiff’s Motion for Summary J udg m ent is DENI ED.” I n sever al issues on appea l, A ppellant contends that the trial court err ed in g ranting the plea and in its im plied conclusion of law that the NPT Orde r was va lidly issued. Appellant asks this Court to

vacate the NPT Orde r and de clar e it void and af firm the May

24 Final Or der

DISCUSSIO N We first addre s s whether the trial court proper ly g rante d the HHSC’s plea to the jurisdiction. I n its plea, the HHSC asser ted that the trial court lacke d jurisdiction over Appellant’s petition for judicial revie w beca use Appellant failed to file a timely motion for rehe aring of the May 24 Final Orde r. Although Appellant filed a motion for rehe aring within 20 day s of its rec eipt of t he NPT Orde r, t he HHSC contende d that the NP T Orde r m ere ly corrected cler ical mi stakes in the May 24 Final Orde r and did not restar t the timeline for filing a motion for rehe aring

. See Gonzales v. Rickm an , 762 S.W .2d 277, 278 (Tex. App.—Austin 1998, no pet.) (per curia m) (holding that judgme nt nunc pro tunc entered after ex piration of t rial cou rt ’s p l en ar y power did not extend time to perf

ect appea l when complaining party did not contend that judgme nt nunc p ro tunc was improperly enter ed); see also Tex. R. Civ. P. 316 (“Cler ical mistakes in the rec ord of any judgme nt may be made by the judge in open court acc ordi n g t o the truth or justice of the case afte r notice of the motion there for has been g iven to the parties i n t er est ed in such judgme nt, as provided in Rule 21a, and the rea fter the execution shall conform to the judg ment as amended.”)

. But cf. In re Cherry , 258 S.W .3d 3 2 8 , 3 3 4 (Tex

. App.—Austin 2008, orig

. proce eding ) (“A nunc pro tunc
6judgme nt made to corr ect a judicial err or is void.”). Acc ording ly , the HHSC conclude d, Appellant

failed to exhaust its administrative reme dies, depriving the trial court of subject-matter jurisdiction. See Tex. Gov’t Code § 2001.145(a) ; 1 Tex. Admi n. Code § 357.498(c)

.

Whether a court ha s subject-matter jurisdiction is a question of l aw that we review d e n o v o . Te

x a s D e p ’ t o f P a r k s & W il d li fe v . M ir a n d a , 1 3 3 S. W. 3 d 2 1 7 , 2 2 6 ( T e x. 2 0 0 4 )

. F o r p u r p o s e s of jurisdiction in th i s case , the Administrative Procedur e Act (APA) permits a party that has exhausted all of its administrative reme dies and is ag g rieve d by a final ag ency decision in a contested

case to seek judicial revie w of the ag ency ’s decision. See Tex. Gov’t Code § 2001.171. To exhaust its administrative reme dies, a party must timely file a motion for rehe aring with the ag ency . See Tex. Gov’t Code § 2001.145(a) ; City of Jack sboro v. Two Bush Cmty. Action Grp. , No. 03-10-00860- CV, 2012 WL 2509804, at *3 (Tex. App.— Au s t in J une 28, 2012, pet. denied) (mem. op.) (“I f a party does not timely file a m o t i o n fo r rehe aring [wit h an ag ency ], the trial court lacks subject-matter jurisdiction over a suit for judicia l reviewof the a g ency ’s dec ision.”).

The HHSC’s plea to the jurisdiction implicates the merits o f Appellant’s petition for judicial revie w and decla ratory -judg ment claim b y co ntending that, contra ry to Appellant’s

asser tion, the NPT Orde r proper ly corr ecte d cler ical err ors rathe r than judicial err ors. Acc ording ly , in revie wing the propriety of the trial court’s ruling on the HHSC’s plea to the jurisdiction, we must adjudicate the merits of the centr al dispu t e— wh et h er the err or was judicial or cler ical—bec ause i t is a leg al question subject to de novo revie w. See Miranda , 133 S.W .3d at 227

– 2 8 (n o t i n g that standard fo r re viewing plea to jurisdiction mirrors that of summary judgme nt and, when jurisdictional challeng e implicates merits of cause of ac t i o n , court may make deter mination on

7merits in absenc e of any fac t issues); Escobar v. Escobar , 711 S.W .2d 230, 232 (Tex. 1986) (“[T]he

decision whe ther a

n err or in a judg ment is judicial or cler ical is a que stion of law.”)

. As the HHSC urg ed t h e Ap peals Division to do in its Motion for Nunc Pro Tunc Orde r, we look to the Texas Rules of Civil Procedur e and case law construing them for g uidance in deter mining wh et h er Appellant’s motion for rehea ring was ti mely in light of the NP T Orde r. See 1 Tex. Admin. Code § 357.481(a) , (b)( 2), (3) (Texas Hea lth & Human Servs. Comm’n, Application of this Subcha

pter) (2019) ( providing that when APA or HHSC’s rules do not spe cifica lly addre ss proce dures of administrative hear ings, AL J “may

. . . apply the Texas Rules of Civil Procedur e . . . or dete rmine that the matter at issue is g overne d by

other law ”). Rule 3 1 6 permits a court to rende r a judgme nt nunc pro tunc to corr ect a cler ical

err or that was made in the “entr y ” of a judgme nt but not to co rre ct a judicial err or made in the “re ndition” of a judgme nt. Comet Aluminum C o . v. Di b r el l , 450 S.W .2d 56, 58 (Tex. 1970); see In re Elizondo , 544 S.W .3d 824, 829 (Tex. 2018) (per curiam) (“A trial cour t may corr ect c lerica l

err ors in a judgme nt even afte r its plenar y power has expired.

. . . But it must corr ect judicial err ors within thirty day s of judgme nt or not at all.”); Andrews v. Koch , 702 S.W .2d 584, 585 (Tex. 1986) (per curia m) (same) ; see also Coleman v. Zapp , 151 S.W

. 1040, 1041 (Tex. 1912) (“The judgme nt of a court is what the court pronounce s. I ts rendition is the judicial act by which the court settles and decla res the de cision of t he law upon the m atters at issue. I ts entry is the minist eria l act by

which an endur ing e vidence of the judicial a ct is aff orded.” ). A cler ical err or is a mis t ak e o r omission preve nting a judgme nt, as enter ed in the officia l rec ord, from acc urate ly ref lecting the judgme nt as it was actua lly rende red. Fiske v. Fiske ,

8No. 01-03-00048- CV, 2004 WL 1847368, at *5 (Tex. App.—Houston [1st Dist.] Aug

. 19, 2004,

no pet.) (m em . o p . ) (citing Universal Underwriters Ins. Co. v. Ferguson , 471 S.W .2d 28, 29–30 (Tex. 1971)). “A cler ical err or resul t s from inacc urate ly rec ording the decision of the court,” and the corr ection of a cler ical err or “does not eff ect a substantive chang e” i n t h e o ri gi n al judgme nt. Dicke ns v. W

illis , 957 S.W .2d 657, 659 (Tex. A pp.—Austin 1997, no pet.). When a prior judicial deter mination is evidenc ed, but the signe d judgme nt inacc urate ly ref lects the t ru e decision of the court, the err or is cler ical and may be corr ecte d by a nunc pro tunc order

. A n d r ew s , 7 0 2 S.W .2d at 586. A j udicial error, on the ot her hand, “occ urs i n the rendering as opposed to the entering of

a judgme nt.” Escobar , 711 S.W .2d at 231. J udg ments nunc pro tunc “ca nnot substantively chang e

a final order ,” and “a substantive chang e occur s when a judicial err or is corr ecte d beca use such a

n

err or re sults from judicial rea soning a nd deter mination.” Dicke ns , 957 S.W .2d at 659. When deciding whether a corr ection is of a judicial or a cler ical err or, we look to the judgme nt actua lly rende red, not the judgme nt that should have been rende red. Escobar , 711 S.W .2d
at 232. “The salient dis t inction betwee n ‘cle rica l’ and ‘judicial’ err ors lies in the exercise of the judgme ntal office s of the court. A cler ical err or is one which does not result from judicial rea soning or dete rmination.” Andrews , 702 S.W .2d at 585.

Appellant contends that the err or corr ecte d by the NPT Orde r (cha ng ing the amount

o f r e c o u p me n t f r o m $ 5 , 4 0 0 to $ 6 3 , 6 1 1 ) w a s ju d ic ia l b e c a u s e it “ s u b s ta n ti v e ly c h a n g e d ” th e ju d g me n t. 1 See Southern Union Gas Co. v. Railroad Comm’n , 690 S.W .2d 946, 948 (Tex. App.—Austin 1985,

Appellant does not take issue with the other chang e made in the NPT Orde r—the chang e 1 to the incorre ct re citation of the he aring date. 9writ ref

’d n.r.e.) (holding that subsequent order of Commi ssion, wh ich on party ’s motion for rehe aring chang ed implementation date of ener g y rate s from date in prior order , was applicable “fina l order ” for purposes of timelines for motions for rehe aring ). We di s agr ee . T h e issue does not turn upon the deg ree of cha ng e but the re ason for

or sourc e of the chang e. I n the May 24 Final Orde r’s concluding para g raph, the AL J first rende red judgme nt “that the I nformal Review of adjustments to Appellant’s 2006 Cost Report IS SUSTAINED

. . . .” Fi n ding of Fa ct No. 7—which Appellant does not challeng e—provide d the rec oupment am o u n t demande d in the I nformal Review Dec ision: “On November 17, 2010, HHSC notified Appellant that it had completed the I nformal Review and reduc ed the amount that it would rec oup to $63,611.00.” Howeve r, the sec ond half of the May 24 Final Orde r’s concluding para g raph incorre ctly stated the I nformal Review rec oupment amount as “$5,400.00.” Be cause the Final Order’s concluding p ar agraph had alre ady rende red judgme nt sustaining the rec oupment amount in the I nform al Review Dec ision, which Appellant does not contest wa s $ 63,611, the concluding para g raph’ s 2 subsequent incorre ct rec itation of the rec oupment amo u n t could only have been a cler ical err or. Correc ting the subse quent re citation of the e rrone ous rec oupment amount of $5,400 t o the cor rec t amount of $63,611 to h ar m o n i z e with the antec edent clause “sustain[ing]” the I nformal Review Dec ision did “not involve additional judicial rea soning” on the part of the AL J

. S ee A n d r ew s , 3 A copy of the I nformal Review Dec ision, indica ting the HHSC’s rec oupment demand in 2 the amount of $63,611, was admitted without objection as an exhibi t at the administrative hear ing. The AL J ’s Finding of Fa ct 20 and Conclusion of L aw 3 additionally support t he Final 3 Orde r’s “sustain[ ing] ” t h e I nformal Review Dec ision’s rec oupment amount, stating, respec tively : “HHSC proper ly adjusted line 181 of Appellant’s Cost Report

. . . .” and “HHSC corr ectly adjusted Ap p el l an t ’s 2006 Cost Report

. . . .” No Finding s of Fa ct or Conclusions of L aw conflicte d with the re ndition “sustaining” the I nformal Revie w Dec ision. 10702 S.W .2d at 585–86. The corr ection mere ly ensure d that the NPT Orde r acc urate ly ref lected the AL J ’s decision in the May 2 4 Fi n al Or d er to “sustain” the rec oupment amount in the “I nformal Review of a djustments.”

We deter mine that South er n Un i o n Gas Company , which Appellant cites, is distinguishable be cause the cha ng e made to the prior order in that case —a chang e to t he ef fec tive date of implementation of new ener g y rate s—was not a mere cler ical err or made to acc urate ly ref lect the judgme nt actua lly rende red but was a chang e to the judgme nt actua lly rende red. See 690 S.W .2d
at 9 4 8

– 4 9

. The chang e made in the NPT Orde r here is more akin to the chang e held to be the

corr ection of a cler ical order in Daniels v. Commission for Lawyer Discipline , No. 05-02-01636- CV, 2003 WL 1878840, at *1–2 (Tex. App.—Dallas Apr. 16, 2003, pet. denied) (per curia m) (mem. op.) (holding that judgme nt suspending lawy er from prac ticing law for three y ear s with “first thirty day s being active suspension” that also provided specific dates of act i v e suspension spanning total of thirty-one day s was proper ly corr ecte d by nunc pro tu n c t o specify that active suspension period

was a ctually thirty -one day s, to harmonize with dates of suspension “c lear ly specifie d” in orig inal judgme nt). Whil e the May 24 Final Orde r specifie d a rec oupment amount “for adjustments to [Ap p el l an t ’s] 2006 Cost Report,” it also “sustain[ed]” the “I nformal Review[’s] adjustments to Ap p el l an t ’s 2006 Cost Report.” The NPT Orde r’s corr ection of the rec oupment amount ensure d that the offic ial administrative re cord “ acc urate ly ref lected” the judg ment as rende red by the AL J : sustaining the I

nformal Revie w Dec ision. See F iske , 2004 WL 1847368, at *5. The rec ord contains clea

r and convincing evidenc e that the NPT Orde r corr ecting the
amount o f re coupment to which the HHSC is entitled was a mere cler ical corr ection of the

11“inac cura te rec ording ” of that amount in the May 24 Final Orde r. See In re Cherry , 258 S.W .3d at

334 (“A judgme nt nunc pro tunc should be issued only if the record is clea r and convincing that a cler ical err or was made.” ); Dicke ns , 957 S.W .2d at 659 (“[W] hen an err or results from inacc urate ly

rec ording the decision of the court, the err or is cler i ca l

. ”)

. Acc ording ly , the AL J proper ly issued the NPT Orde r, which is not void. SeeTex. R. C iv. P. 316; Andrews , 702 S.W .2d at 585–86. 4 Fur thermore , the eff

ective date of the NPT Orde r rela tes back to t h e d ate of the M a y 2 4 F in a l O r d e r , a

n d A p p e ll a n t’ s mo ti o n f

o r r e h e a r in g

— f il e d mo r e th a

n 2 0 d a y s a f te r th e M a y 2 4 Final Orde r—wa s untimely

. See Charles v. Texas Prop. & Cas. Ins. Guar. Ass’n , No. 03-06-00404- CV, 2007 WL 700841, at *1 (Tex. App.—Austin Mar. 6, 2007, pet. denied) (mem. op.) (holding that order n u n c p ro tunc corr ecting cler ical err ors did not extend deadlines for filing notice of appea l from orig inal order ); Daniels v. C o mmis sion for Lawyer Discipline , 142 S.W .3d 565, 572 (Tex. App.—Texarkana 2004, no pet.) (“A nunc pro tunc judgme nt, althoug h signe d later, rela tes back to the date of the orig inal judgme nt a nd is e ffe ctive as of the ear lier date.” ); Gonzales , 762 S.W .2d at 2 7 8 (h o l d i n g t hat entry of judgme nt nunc pro tunc “did not extend the time in which to perf ect appea l”); see also 1 Tex. Admin. C ode § 357.498(c ) (providing that motion for re hear ing must be filed wit hin 20 day s of presumed rec eipt of final order ). Having failed to timely fi l e a m o t ion for

We note that even if we wer e to hold that the NPT Orde r wer e void—or, alternatively , had 4 the AL J not issued the NPT Order at all—the HHSC w ould be entitled to rec oup the full $63,611, as any court asked t o enfor ce the May 24 Final Or der w ould be bound to construe the Final Order as the NPT Orde r did, authorizing the HHSC to rec oup the full $63,611 as “sustain[ed]” by the Appea ls Division. See Point Lookout W ., Inc. v. W

horton , 742 S.W .2d 277, 278 (Tex. 1987) (per curiam) (“A judgme nt shou l d b e co n strued as a whole toward the end of harmonizing and g iving eff ect to all the court has written.”) ; Star Cement Corp. v. Fair , 467 S.W .2d 402, 404–05 (Tex. 1971) (noting that when construing ambig uous order s, “[t] he entire contents of the instrument and rec ord should be consider ed [and t]he judgment is to be re ad as a whole”)

. 12rehe aring , Appellant did not exhaust its administrative reme dies, and the trial court wa s wi t h o ut

jurisdiction ove r Appellant’s suit for judicia l review

. See Tex. Gov’t Code § 2001.145(a) ; City of Jack sboro , 2012 WL 2509804, at *3.

We rea ch the same conclusion with respe ct to Appellant’s decla ratory -judg m en t claim, which soug ht relief redunda nt to that provided by Appellant’s suit for judicial re v i ew o f the NPT Orde r. See Poole v. Karnack Indep. Sch. Dist. , 344 S.W .3d 440, 445 (Tex. App.—Austin 2011, no pet.) (“When a statute provides an avenue for attacking an ag ency ord er , a d ecla ratory

judgme nt action will not lie to provide redunda nt reme dies.”); see also City of El Paso v. Heinrich , 284 S.W .3d 366, 370–71 (Tex

. 2 0 0 9 ) (hol ding that UDJA “does not enlar g e a trial court’s jurisdiction, and a litigant’s reque st for decla ratory relief does not alter a suit’s underly ing nature ”); Texas Liquor Control Bd. v. Canyon Creek Land Corp. , 456 S.W .2d 891 , 8 9 5 (Tex. 1970) (“A s a g ener al rule, a

n action for

decla ratory judgme nt will not be entertaine d if there is pe nding, at the time it is filed, another action or proce eding betwee n the same parties in which may be adjudicate d the issues in v o l ved in the decla ratory action.”)

. Acc ording ly , the trial court proper ly g rante d the HHSC’s plea to the jurisdiction with respe ct to all of Appe llant’s claims. 5

CONCLUSION We affir m the trial court’ s g rant of the HHSC’s plea to the jurisdiction.

Be cause we conclude that the trial court proper ly g rante d the HHSC’s plea to the 5 jurisdiction and properly dismiss ed Appellant’s claims, we ne ed not consider the cour t’s alterna te ruling g ranting the HHSC’s motion for summary judgme nt. See Tex. R. App. P . 47.1. 13__________________________________________ Thomas J . Ba

ker, Justi ce Be fore Chief J ustice Rose, Jus tices Goodwin a nd Ba ker Affir med Filed: J une 6, 2019

14