United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50828

____________

Philip C. James; John Ballantyne; William Noe, 

Plaintiffs—Appellees,

versus

Glenn Allen Hegar, Jr., in his individual and official capacities as 

Texas Comptroller of Public Accounts, and his official and custodial capacities as 

Chairman of the Texas Treasury Safekeeping Trust Company and administrator 

of Texas Unclaimed Property Funds; Joani Bishop, in her 

individual and official capacities as Director of Unclaimed Property Reporting 

and Compliance, Texas Comptroller of Public Accounts, 

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:22-CV-51

______________________________

Before King, Willett, and Douglas, Circuit Judges.

King, Circuit Judge:

Plaintiffs are three Texas residents whose assets escheated to the State 

under Texas’s Unclaimed Property Act. Plaintiffs brought a class action 

lawsuit against the Texas Comptroller and a director in the Comptroller’s 

office, alleging that the State is abusing the Unclaimed Property Act to seize 

purportedly abandoned property without providing proper notice. The 

United States Court of Appeals

Fifth Circuit

FILED

November 16, 2023

Lyle W. Cayce

Clerk

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district court dismissed most of Plaintiffs’ claims. However, applying the Ex 

parte Young exception to state sovereign immunity, the district court 

permitted Plaintiffs to seek prospective relief, including an injunction 

ordering state officials to comply with the Constitution’s Takings and Due 

Process Clauses. In this interlocutory appeal, Defendants contend that 

Plaintiffs cannot invoke Ex parte Young because they lack standing to seek 

prospective relief and have not alleged an ongoing violation of federal law. 

We agree with Defendants and REVERSE the district court’s denial of 

Eleventh Amendment sovereign immunity, and we REMAND with 

instructions to dismiss Plaintiffs’ remaining claims for prospective relief

without prejudice.

I.

This case arises from alleged systemic and ongoing violations of 

Plaintiffs’ constitutional rights by the State of Texas through its 

administration of the Texas Unclaimed Property Act (“UPA”), Tex. 

Prop. Code § 71.001 et seq. The UPA requires holders of presumptively 

abandoned property to report and deliver that property to the State 

Comptroller, along with last-known information about the property owner. 

Id. §§ 74.101, 74.301. “[P]roperty is presumed abandoned if, for longer than 

three years: (1) the location of the owner of the property is unknown to the 

holder of the property; and (2) according to the knowledge and records of the 

holder of the property, a claim to the property has not been asserted or an act 

of ownership of the property has not been exercised.” Id. § 72.101(a). 

The holder of the property is generally required to give notice to the 

owner at least 60 days before the property is delivered to the Comptroller. Id.

§ 74.1011(a). One year after the holder files a statutorily mandated report, the 

Comptroller “may use one or more methods as necessary to provide the most 

efficient and effective notice to each reported owner.” See id. § 74.201.

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When the Comptroller receives property in the form of unclaimed 

money, the Comptroller deposits the funds—as well as any income derived 

from investment of the unclaimed money—to the credit of the State’s 

general revenue fund, where it is “subject . . . to appropriation by the 

legislature.” Id. §§ 74.601(b), 74.603. 

The Comptroller maintains a website that lists the names and last 

known addresses of owners whose property has been transferred to the 

Comptroller under the UPA. An owner whose property has been transferred 

to the State can file an administrative claim to recover the property with the 

Comptroller’s office. Id. § 74.501; Clark v. Strayhorn, 184 S.W.3d 906, 910–

11 (Tex. App.—Austin 2006, pet. denied). If the Comptroller determines 

that an owner’s claim is valid, the Comptroller’s office returns any unsold 

property or pays the claimant from the general revenue fund. Tex. Prop. 

Code §§ 74.501, 74.602. This payment does not include any interest that 

the claimant’s funds generated before he or she filed a claim for recovery. Id.

§ 74.304(d); Clark, 184 S.W.3d at 913.

II.

Plaintiffs-Appellees Philip C. James, William Noe, and John 

Ballantyne (collectively, “Plaintiffs”) are three Texas residents who allege 

that their assets improperly escheated to the State under the UPA. Plaintiff 

James alleges that Charles Schwab & Co. closed his retirement account and 

transferred $305,203.56 from the account to the State as unclaimed property. 

James never received notice from the Comptroller’s office, which denied 

having any record of the retirement funds purportedly transferred to its 

possession. He further claims that $188 of his funds were improperly seized 

by the Comptroller without notice, his knowledge, or consent.

Plaintiff Noe alleges that an amount of $468.72 was transferred from 

his accounts receivable credit balance with Reed Elsevier to the Comptroller. 

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Noe claims that, other than the posting of his property on the Comptroller’s 

website, he received no notice of this transfer. Plaintiff Ballantyne alleges that 

his accounts with multiple holders, including IBC Bank, Chase Bank, Wells 

Fargo, and E-Trade, all improperly escheated to the State. He claims that the 

Comptroller failed to identify both the property type and the holders of his

seized property. 

Plaintiffs filed a class action complaint in federal district court on 

January 21, 2022. They named as defendants Glenn Allen Hegar Jr., the 

Texas Comptroller of Public Accounts, and Joani Bishop, the Comptroller’s 

Director of Unclaimed Property Reporting and Compliance (collectively, 

“Defendants”). The complaint alleges that Defendants “misused” the UPA 

“to take private property from people and businesses without meeting the 

basic threshold requirements for escheatment because they ha[d] not 

‘abandoned’ or ‘lost’ their property and they [were] not ‘unknown.’” 

Defendants allegedly utilized the UPA to convert private property into 

revenue for the State, which they achieved by unlawfully coercing financial 

institutions, businesses, and nonprofits to surrender Plaintiffs’ and class 

members’ property to the Comptroller. The complaint proposed a class 

defined as “[a]ll persons or entities whose property was escheated to the 

State of Texas between 2014 and the present without adequate notice.”

Based on the foregoing allegations, Plaintiffs asserted claims against 

Defendants in their individual and official capacities under 42 U.S.C. § 1983. 

Specifically, Plaintiffs sought a declaration that Defendants: (1) failed to 

provide notice and satisfy due process requirements under the UPA, the 

Texas Constitution, and the U.S. Constitution; (2) allowed and colluded with 

third parties to retain property that belonged to Texas citizens; (3) seized, 

sold, and destroyed contents of bank safety deposit boxes without adequate 

notice; (4) failed to enforce the requirement that corporations comply with 

the UPA; and (5) acted ultra vires in failing to provide notice and satisfy due 

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process. Plaintiffs additionally sought an accounting, attorneys’ fees, the 

creation of a common fund, and injunctive relief in the form of ordering 

Defendants to: (a) comply with and properly administer the UPA; and (b)

return Plaintiffs’ property. 

On April 14, 2022, Defendants filed a motion to dismiss pursuant to 

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In 

response to the claims against Defendants in their official capacities, 

Defendants invoked state sovereign immunity under the Eleventh 

Amendment. Defendants further claimed that Plaintiffs had failed to identify 

specific actions taken by either of the individual Defendants that would 

subject them to liability. 

In an order dated September 6, 2022, the district court dismissed most 

of Plaintiffs’ claims. Addressing Defendants’ jurisdictional arguments, the 

district court determined that the State had not consented to being sued in 

federal court, and it dismissed Plaintiffs’ requests for declaratory and 

injunctive relief under state law and the Texas Constitution for lack of subject 

matter jurisdiction. The district court also dismissed “Plaintiffs’ claims 

against Defendants in their official and individual capacity to the extent those 

claims seek funds from the general revenue fund.” Turning to Plaintiffs’ 

individual-capacity § 1983 claims, the district court found that Plaintiffs 

failed to allege individual causation regarding each Defendant. 

The district court noted that the only way for Plaintiffs’ officialcapacity claims to overcome sovereign immunity was through the Ex parte 

Young exception, which permits federal courts to enjoin state officials in their 

official capacities from violating federal law. See Hutto v. Finney, 437 U.S. 

678, 690 (1978) (citing Ex parte Young, 209 U.S. 123 (1908)). The district 

court determined that the following two requests for relief could survive 

under Ex parte Young: (1) “prospective injunctive relief in the form of 

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ordering [Defendants] to comply with the Takings and Due Process Clauses 

of the Constitution”; and (2) a “declaration that Defendants violated the 

U.S. Constitution’s requirements for due process of law and against 

takings.” The district court accordingly granted in part and denied in part 

Defendants’ motion to dismiss, solely permitting Plaintiffs to proceed with 

their requests for declaratory and injunctive relief under Ex parte Young.

Defendants filed a notice of interlocutory appeal seeking review of the denial 

of Eleventh Amendment sovereign immunity.1

III.

We first address our jurisdiction to review Defendants’ interlocutory 

appeal. Orders denying Eleventh Amendment sovereign immunity are 

reviewable on interlocutory appeal under the “collateral order doctrine.” See 

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993). 

Defendants on appeal argue that Plaintiffs “have not alleged an ongoing 

violation of federal law,” which is a necessary component of the Ex parte 

Young exception to Eleventh Amendment sovereign immunity. See Green 

Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471 (5th Cir. 2020).

In arguing that Plaintiffs failed to allege an ongoing violation, 

Defendants repeatedly cite legal standards governing Article III standing for 

prospective relief, specifically the well-established principle that “to meet 

the Article III standing requirement when a plaintiff is seeking injunctive or 

declaratory relief, a plaintiff must allege facts from which it appears there is 

a substantial likelihood that he will suffer injury in the future.” Bauer v. 

_____________________

1 On interlocutory appeal, we solely address the district court’s denial of Eleventh 

Amendment sovereign immunity concerning Plaintiffs’ requests for: (1) an injunction 

ordering Defendants to comply with the U.S. Constitution; and (2) a declaratory judgment 

that Defendants violated the U.S. Constitution. We do not address the district court’s 

dismissal of any of Plaintiffs’ claims. 

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Texas, 341 F.3d 352, 358 (5th Cir. 2003). Thus, although the primary issue on 

interlocutory appeal is the district court’s denial of Eleventh Amendment 

sovereign immunity under Ex parte Young, Defendants’ briefing also raises 

the closely related issue of Plaintiffs’ standing to seek prospective relief.

Standing is a component of subject matter jurisdiction, Ortiz v. Am. 

Airlines, Inc., 5 F.4th 622, 627 (5th Cir. 2021), and where “we have 

interlocutory appellate jurisdiction to review a district court’s denial of 

Eleventh Amendment immunity, we may first determine whether there is 

federal subject matter jurisdiction over the underlying case,” Hosp. House, 

Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002). Because “our Article III 

standing analysis and Ex parte Young analysis ‘significant[ly] overlap,’” City 

of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019) (quoting Air Evac 

EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 520 (5th 

Cir. 2017)), we have in prior cases considered standing on interlocutory 

appeals of a district court’s denial of Eleventh Amendment sovereign 

immunity, see id. at 1103 n.3; see also, e.g., Walker v. Livingston, 381 F. App’x 

477, 479 (5th Cir. 2010); Williams v. Davis, No. 22-30181, 2023 WL 119452, 

at *4–6 (5th Cir. Jan. 6, 2023).

Plaintiffs allege that they were subjected to constitutional violations, 

they allege that such violations are ongoing or may reoccur, and they seek 

prospective relief. Whether Plaintiffs have alleged ongoing constitutional 

violations is a central question of both the Article III standing analysis and 

the Ex parte Young analysis in this case. And, as discussed below, the most 

relevant authorities on “ongoing violations” as related to takings claims 

address this issue in the context of Article III standing. Because these 

authorities inform our analysis of “ongoing violations” in the context of Ex 

parte Young, we address standing before turning to an Ex parte Young analysis. 

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IV.

This court may address the jurisdictional requirement of standing for 

the first time on appeal. Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th 

Cir. 2001). “Constitutional standing has three elements: (1) an ‘injury in 

fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a 

causal connection between the injury and the conduct complained of; and (3) 

the likelihood that a favorable decision will redress the injury.” Croft v. 

Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009) (quoting Lujan v. Defs. of 

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

Although Plaintiffs in this case purport to act on behalf of a class, they 

must still demonstrate that they personally have standing. See Spokeo, Inc. v. 

Robins, 578 U.S. 330, 338 n.6 (2016). Litigants must demonstrate standing 

with respect to each type of relief they seek. TransUnion LLC v. Ramirez, 141 

S. Ct. 2190, 2210 (2021). To request prospective injunctive or declaratory 

relief, a litigant must demonstrate “continuing harm or a real and immediate 

threat of repeated injury in the future.” Soc’y of Separationists, Inc. v. 

Herman, 959 F.2d 1283, 1285 (5th Cir. 1992). The threat of future injury must 

be “certainly impending”; mere allegations of possible future injury will not 

suffice. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting 

Lujan, 504 U.S. at 565 n.2).

The Supreme Court’s holding in City of Los Angeles v. Lyons, 461 U.S. 

95 (1983), illustrates the principle that allegations of past harm cannot 

establish standing for a request for prospective relief. In Lyons, the plaintiff 

sought damages, an injunction, and declaratory relief following an incident in 

which police officers seized him and applied a chokehold. Id. at 97–98. The 

Lyons Court held that while the plaintiff had alleged a past harm resulting 

from being subjected to a chokehold, he was unable to seek prospective relief 

absent a showing that he was likely to suffer a future injury from the use of 

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chokeholds by police officers. Id. at 105. The plaintiff’s allegation of past 

harm ultimately did “nothing to establish a real and immediate threat that he 

would again be stopped” and subjected to that method of restraint. Id. 

This court has already applied the Lyons principle to an allegation of 

an unconstitutional taking under Texas’s UPA. In Arnett v. Strayhorn, 515 F. 

Supp. 2d 690, 693 (W.D. Tex. 2006), aff’d sub nom. Arnett v. Combs, 508 F.3d 

1134 (5th Cir. 2007), a plaintiff brought a facial challenge to the UPA, 

claiming that the State’s retaining of revenue generated from unclaimed 

property violates the Takings Clause of the Fifth Amendment. In addition to 

seeking the return of revenue held by the State, the plaintiff also sought a 

declaratory judgment decreeing the UPA unconstitutional and an injunction 

prohibiting the State from retaining any such revenue generated by

unclaimed property in the future. Id. The district court determined that the 

plaintiff lacked standing to assert a claim for prospective relief because he 

“[did] not, nor [did] the Court reasonably believe he [could], contend he 

[would] be likely to have property subject to the Texas Unclaimed Property 

Law in the future.” Id. at 697–98. In Arnett v. Combs, 508 F.3d 1134, 1134 (5th 

Cir. 2007), this court affirmed Arnett v. Strayhorn for the reasons stated by 

the district court. 

Like the plaintiff in the Arnett line of cases, Plaintiffs here have only 

alleged that they were injured by past takings; they allege no facts indicating

that another taking of their property is imminent or certainly impending. 

Plaintiffs reference their fear of another unconstitutional taking, requiring 

them to “routinely inspect the contents of their safe deposit boxes, check on 

the presence of funds in their retirement accounts, and search the website 

administered by Defendants to see if they have taken any more of their 

property.” But even if Plaintiffs take actions and incur costs out of fear of a 

future injury, these activities do not suffice to establish standing. See Clapper, 

568 U.S. at 416 (rejecting the theory that plaintiffs can “manufacture 

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standing merely by inflicting harm on themselves based on their fears of 

hypothetical future harm that is not certainly impending”). 

Plaintiffs point to no authority supporting their assertion that an 

unconstitutional taking is an “ongoing violation” for the purpose of seeking 

prospective relief when the government has failed to return a claimant’s 

property. In fact, the Arnett line of cases reaches the opposite conclusion—

that a prior taking is a past harm insufficient to confer standing for 

prospective relief, even when it is alleged that the government has unlawfully 

retained assets that rightfully belong to the plaintiff. See Arnett, 515 F. Supp.

2d at 697–98. Here, the district court permitted Plaintiffs to proceed with 

their request for prospective relief to prevent the State from violating the 

Constitution in the future. But if Plaintiffs allege no impending future injury, 

this prospective relief in no way redresses Plaintiffs’ alleged injuries. We 

therefore find that Plaintiffs’ allegations of past unconstitutional takings are 

insufficient to confer standing for prospective relief under the principle 

enounced in Lyons.

V.

We now turn to Ex parte Young. “In most cases, Eleventh Amendment 

sovereign immunity bars private suits against nonconsenting states in federal 

court.” Paxton, 943 F.3d at 997. Sovereign immunity applies to suits against 

state officials or agencies that are effectively suits against a state. Id. For the

Ex parte Young exception to Eleventh Amendment sovereign immunity to 

apply, three criteria must be satisfied: (1) A plaintiff must name individual 

state officials as defendants in their official capacities; (2) the plaintiff must 

allege an ongoing violation of federal law; and (3) the relief sought must be 

prospective, rather than retroactive. Green Valley, 969 F.3d at 471.

Our standing analysis makes clear that Plaintiffs have not 

demonstrated that they “seek prospective relief to redress ongoing 

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conduct.” See Freedom From Religion Found. v. Abbott, 955 F.3d 417, 424 (5th 

Cir. 2020). Just as Plaintiffs’ allegations of past harm are insufficient to 

confer standing to seek prospective relief, these allegations are also 

insufficient to show an ongoing violation of federal law and invoke the Ex 

parte Young exception to Eleventh Amendment sovereign immunity. See 

Spec’s Fam. Partners, Ltd. v. Nettles, 972 F.3d 671, 681 (5th Cir. 2020)(finding 

that an allegation of wrongful past behavior does not establish a claim that 

falls within the Ex parte Young exception).

We are not persuaded by Plaintiffs’ arguments that they have 

successfully pleaded ongoing constitutional violations to invoke Ex parte 

Young. Plaintiffs point out that their complaint alleges that Defendants 

“continue to violate” the Constitution by providing inadequate notice and 

performing unlawful takings. But the complaint contains insufficient facts to 

support Plaintiffs’ claim that Defendants continue to perform unlawful 

takings with inadequate notice, and factual allegations contained in a 

complaint “must be enough to raise a right to relief above the speculative 

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs’ 

nonspecific references to Defendants continuing to engage in unlawful 

conduct are too vague and unsupported by factual allegations to demonstrate 

an ongoing violation under Ex parte Young. See Williams, 2023 WL 119452, at 

*6.

Plaintiffs also claim that their lawsuit is a facial challenge to the UPA, 

which would permit an inference of ongoing violations because there is no 

evidence in the record to suggest that the State will halt enforcement of the 

UPA. Plaintiffs’ complaint, however, does not allege that the UPA is facially 

unconstitutional. The crux of Plaintiffs’ complaint is that the State of Texas 

has “misused” and is “skirting the requirements of” the UPA. For instance, 

the complaint alleges that “Defendants failed . . . to provide . . . 

Constitutional and statutorily required notices before taking personal 

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property,” and that “our State and Federal Constitutions and the State’s 

UPA laws do not permit the seizure and sale of private property, for public 

use, without adequate notice and Due Process of Law.” (emphases added). 

The complaint repeatedly asserts that Defendants’ allegedly

unconstitutional takings also violate the UPA; absent from the complaint is 

clear indication that Defendants commit unconstitutional takings even when 

they fully comply with the UPA’s statutory process to the letter. 

Plaintiffs’ claim that their lawsuit is a facial challenge to the UPA is 

further undermined by the language of their requests for prospective relief. 

Plaintiffs seek a declaration that Defendants violated the Constitution and 

the UPA; there is no request to declare the UPA facially unconstitutional.2

Plaintiffs’ request for injunctive relief specifically asks that the court 

“compel[] Defendants to immediately cease all unlawful conduct . . . and to 

properly administer the UPA.” (emphasis added). Plaintiffs’ contention that 

their lawsuit is a facial challenge to the UPA is contradicted by their 

complaint’s admission that the State’s unlawful conduct will be cured if the 

State “properly administer[s] the UPA.” A plain reading of the complaint 

thus indicates that Plaintiffs are alleging that Defendants’ abuse of their 

powers granted by the UPA—not the UPA itself—is unconstitutional.3

_____________________

2 In fact, Plaintiffs’ response to Defendants’ motion to dismiss plainly states that 

“Plaintiffs here do not seek a declaration that the UPA is unconstitutional.” 

3 We note that even if the complaint unequivocally challenged the constitutionality 

of the UPA or sufficiently pleaded that Defendants’ unconstitutional conduct is generally 

ongoing, Plaintiffs’ failure to show that they themselves are likely to suffer a future injury 

would still prevent them from being able to establish standing to seek prospective relief. See 

Spokeo, 578 U.S. at 338 n.6 (noting that plaintiffs purporting to represent a class must show 

that they personally have standing); Arnett, 515 F. Supp. 2d at 697–98 (deciding that the 

plaintiff lacked standing to seek prospective relief because he was unable to show that he 

himself was likely to have property taken under the UPA in the future).

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Plaintiffs allege insufficient facts to indicate that these alleged abuses are 

ongoing.

* * *

Plaintiffs have failed to allege facts indicating that Texas’s alleged

abuse of the UPA is ongoing or will continue in the future. As there is no 

ongoing violation of federal law sufficiently pleaded in the complaint, 

Plaintiffs have failed to satisfy the Ex parte Young requirements, and their 

claims for prospective relief are barred by sovereign immunity.

VI.

Plaintiffs have failed to demonstrate that they have standing to seek 

prospective relief, and they have not met their burden to proceed with their 

constitutional claims under the Ex parte Young exception to Eleventh 

Amendment sovereign immunity. Accordingly, we REVERSE the district 

court’s denial of Eleventh Amendment sovereign immunity, and we 

REMAND with instructions to dismiss Plaintiffs’ remaining claims for 

prospective relief without prejudice.4

_____________________

4 Because we find that the State is entitled to sovereign immunity on the claims 

before us on interlocutory appeal, we need not and do not address Defendants’ alternative 

argument that Plaintiffs’ takings claims are not ripe. We also need not and do not address 

Defendants’ argument that Plaintiffs’ requests for prospective relief impermissibly seek 

monetary damages. The district court dismissed Plaintiffs’ request for an injunction 

ordering the State to return their assets, and that decision is not before this court on 

interlocutory appeal. 

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