### 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. 03-13-00285- CV

Texas Com ptroller of P ubl ic Acc ounts, App ellant

v. Walker Electr ic Com pany, L LC; Walker’s Elec tric Com pany; Walkers Electr ic Com pany; Calvin G. Walker ; and S tacy Walker , Appellees 1

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0361 3, 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 Texas Comptroller of Publ i c Accounts challeng es the trial court’s interlocutory order deny

ing the Comptroller’s plea to t h e j u ri s d i ction. I n the underly ing suit, Walker Electric complains about the Comptroller’s order barr ing Walker Electric from contra cting with state ag encie s and local g overnme ntal entities. The Comptroller asser ts that Walker Electric ’s pleading s either fail to invoke a valid waiver of sovere ign immunit y or do not pr esent a justiciable
controve rsy . We reve rse the trial court’s order deny ing the Comptrol l er ’s p l ea to the jurisdiction and re nder judg ment dismiss ing Walker Electric ’s claims for

want of jurisdiction.

We refe r to the appe llees collec tively as “Walker

Electric .” 1REGU LATORY AND F ACTUAL BACK GR OUND The Comptroller is responsible for purcha sing g oods and service s for state ag encie s. See generally Tex. Gov’t Code §§ 2155.001–.327. Fur thermore , local g overnme ntal entities such 2

as school districts can voluntarily participa te in the Comptrol ler’s purcha sing prog ram in lieu of adopting their own purcha sing proce sses. See L oc. Gov’t Code § § 2 7 1

. 0 8 1

– .083. Gene rally , g overnme nt purch as es must be acc omplished throug h competitive bidding, and the Comptroller has the authority to adopt rules to admi n i s t er b o t h competitive and non-compe titive bidding proce sses. See Tex. Gov’t Code §§ 2155.0012, .063.

A s p a r t o f th is p r o c u

r e me n t p r o c e s s , th e Co mp tr o ll e r is r e q u ir e d to c r e a

te a n d ma in ta in

a “Centra liz ed Master Bidde rs L ist” (the L ist) of vendors who are reg istered to bid on state contra cts. See generally id. §§ 2155.261–.270. Gene rally , state ag encies m u s t solicit bids from vendors on the L ist fo r al l purcha ses over $15,000 unless the ag ency obtains a waiver from the Comptroller. See id. §§ 2155.264, .269. Fur thermore , the Comptroller can cer tify a g iven vendor as a “Historica lly Under utiliz ed Business,” see id. § 2161.001, and state ag encie s or their g ener al contra ctors are require d to make a “g ood faith eff ort” to use historically underutilized businesses for state projec ts, see id. §§ 2161.252–.253.

Separa te and apar

t from maintaining the L ist and cer tify ing historically underutilized businesses, the Comptroller has the authority to c ompletely bar vendors from participa ting in state

These fu n ct i o ns wer e previously perf ormed by the now defunc t Gene ral Service s 2 Commi ssion. The leg islature transfe rre d these functions to the Comptroller, and any ref ere nces in chapte r 2155 of the Gover nment C o de to “the commission” is interpre ted as ref err ing to the Comptroller. See Tex. Gov’t Code § 2155.0011. 2contra cts for up to five y ear s throug h a proce ss called “deba rment.” See i d

. § 2 1 5 5 .077; see also 34 Tex. Ad m i n . C o d e § 20.105 (2005) (Tex. Comptroller of Pub. Acc ounts, Deba rment). The C o m p troller can debar vendors for various rea sons, including, as alleg edly rele vant here , frau d

. T ex . Gov’t Code § 2155.077(a) (3). Ancillary eff ects of debar

ment are that a vendor i s re m o v ed from the L ist and the vendor’ s cer tification as a historically underutilized business is revoke d. See 34 Tex. Admin. Code § 20.34(d)( 3) (2008) (Tex. Comptroller of Pub. Acc ounts, Centralized Master Bidde rs L ist) (n o t i n g t hat vendor can be remove d from L ist for conduct that would support debar ment under Te x . Gov’t Code § 2155.077). Acc ording to Walker Electric ’s pleading s and exhibi ts, the Comptroller lear ned that appellee Calvin G. Walker—the sole owner of Walker Electric Company , L L C; Walker’ s Electric Company ; and Walkers Electric Company —enter ed into a plea ag ree ment with the I nterna l Revenue Service (I RS). Mr. Walker pleade d g uilty to not timely pay ing income taxes. See 26 U.S.C. § 7203 ( ma k in g w il lf u l f a il u r e to p a y ta x a mi s d e me a

n o r o f f e n s e )

. A s p a

r t o f th e p le a a g

r e e me n t, M r . Wa lk e r admitted to altering bids from third-par ty contra ctors to look like invoices and then submitt ing those documents to the Be aumont I ndepende nt School District in connec tion with Walker Electric , L L C’s projec t for the school district. Acc ording to Mr. Walker’s admission, these altere d bids included invoices for materia ls used in other projec ts, with the implication that he char g ed the school district for mate rials that wer e not used in its project.

Ba sed on this p l ea agreement, the Comptroller beg an a debar ment investiga tion of Walker Electric to deter

mine if Walker Electric had committed fra ud or materia l misrepre sentations during the course of perf orming a co n t rac t with a state ag ency . See Tex. Gov’t Code

3§ 2155.077(a) (2)–( 3); 34 Tex. Admin. Code §§ 20.105(a) (1) (authorizing Comptroller to investiga te

alleg ations that may constitute cause for debar ment), .106(a) (2007) (Tex. Comptrol l er o f Pub. Acc ounts, Procedur es for I nvestig ations and Deba rment) (re quiring Comptroller to notify vendor of investiga tion). Walker Electric filed a response, as s er t i ng that Mr. W alker did not plead guilty to tax fra ud. See 34 Tex. Admin. Code § 20.106(c) (re quiring vendor to submit written response within
t en d ay s of rec eiving notice of investiga tion). The Comptroller informed Walker Electri c t h at Mr. Walker’s admission to invoicing Be aumo n t I ndepende nt School District for “mater ials [t hat]

wer e never delivere d” constituted fra udulent behavior in the perf ormanc e of a g overnme nt contra ct. Id. § 20.106(e) (re quiring Comptroller to make finding s and order debar ment within ninety day s of date that notice wa s s ent to vendor)

. There fore , the Comptroller debar red Walker Electric for a period of five y ear s. See id. § 20.105(d)( 5) (allowing Comptroller to debar vendo r for five y ear s based on “convic tion of a crime relat ed to fra ud in the procur ement or perf ormanc e of any g overnme ntal contra ct”)

.

Walker Electric filed a reque st for revie w, asser ting ag ain that Mr. Walker did not plead g uilty to f

raud. See id. § 20.107(a) (2005) ( Tex. Com ptroller of Pub. Ac counts, Request for Review) (allowing vendor to submit written reque st for revie w of debar ment finding to Comptroller within ten day s of being notified of finding ). Walker Electric also arg ued that althoug h Mr. Walker admitted that some of the docu m en t s filed with the Be aumont I ndepende nt School District wer e altere d, he did not admit to filing those documents with the school district, and noted that his w ife had previously testified that she mailed those documents to the school district by mistake. As part of its reque st for revie w, Walker Electric reque sted a contested case hear ing. The C omptroller

4revie wed the rec ord and, without conducting a contested case hear ing, aff irmed its finding s and decision to de bar Walker Electric

. See id. § 20.107(c) (re quiring Comptroller to issue decision on reque st for re view within six ty day s). Walker Electric filed this underly ing suit for judicial revie w of the Comptroller’s order debar

ring it from state contra cts. I n its pleading s, Walker Electric asser ts t h at (1) the Comptroller err ed in failing to conduct a contested case hearing , (2) the Comptroller’s decision i s not support ed b y substantial evidenc e, (3) the Comptroller was acting bey ond its authority , and (4 ) the Comptroller’s decision violates Walker Electric ’s constitutional rig ht to due proce s s an d due cours e o f l aw. Walker Electric also soug ht decla ratory judgme nt that (1) the Comptroller’s application of its debar

ment rules to this case is inconsistent w ith c hapter 2155 of the Gover nment Code and (2) the Comptroller was acting bey ond its authority in debar ring Walker Elect ri c for

rea sons not authorized by statute. The Comptroll er fi led a plea to the jurisdiction, asser ting that Walker Electric ’s pleading s either fail to invoke a valid waiver of sovere ign immunit y or do not pr esent a justiciable

con t rover sy and that, there fore , the trial court lacks subject-matter jurisdiction to hear this case . The trial court denied the Comptroller’s plea to the jurisdiction. This interlocutory appea l followed. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8) (allowing party to appe al i n terlocutory order g ranting or deny

ing g overnme nt’s plea to the jurisdiction).

STANDARD OF REVIEW A plea to the jurisdiction is a dilatory plea that challeng es the trial court’s authority
to deter mine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue , 534 S.W .3d 547, 553–54 (Tex. 2000). Sovereig n immu nity from suit deprive s a court of subjectmatter jurisdiction and there fore is proper ly asser ted in a plea to the jurisdict i o n . R ea t a Constr. Corp. v. City of

Dallas , 197 S.W .3d 371, 374 (Tex. 2006). The ultimate question of whether a trial

c o u r t h a s s u b je c t- ma tt e r ju r is d ic ti o n is a q

u e s ti o n o f la

w th a t w e r e v ie w d e n o v o . W

e s tb r o o k v . P e n le

y , 231 S.W .3d 389, 394 (Tex. 2007).

When, as here , the plea to the ju ri sdiction challeng es the pleading s, we construe the pleading s liberally in favor of the plaintiff, and unless neg ated by sufficie nt evidenc e, we acc ept all alleg ations as true. Texas Dep’ t of Parks & W ildlif e v. Mi r a n d

a , 1 3 3 S .W.3d 217, 226–27 (Tex

. 2004); Gattis v. Duty , 349 S.W .3d 193, 200–01 (Tex. App.—Austin 2011, no pet.) (“O ur ultimate inquiry is whether the plaintiff’s pled and un-neg ated fac ts, taken as true,

. . . aff irmatively demonstrate a claim or claims within the trial court’s subject matter jurisdiction.”). I f the pleading s do not contain suffic ient fac ts to affirmatively demonstrate the trial court’s jurisdiction but do not aff irmatively demons t rate an incura ble defe ct in jurisdiction, the plaintiff should be aff orded the opportunity to amend his pleading s. Miranda , 133 S.W .3d at 226–27. Howeve r, i f t he pleadings aff i rm atively neg ate the exis tence of j urisdiction, then a plea to the j urisdiction should be gra nted without allowing the pla intiff an opportunity to amend his pleading s. Id. Some of the jurisdictional issues in this case turn on the interpre tation of statutes, which itself is a questio n o f l aw that we revie w de novo. See First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631 (Tex. 2008). When construing a statute, our primary objective is to asce rtain and g ive eff

ect to the leg islature’s intent. Id. at 631–32. I n deter mining leg islative intent, w e first consider the plain lang uag e of the statute. Gene ral Motors Corp. v. Bray , 243 S.W .3d 678, 685

6(Tex. App.—Austin 2007, no pet.). When statutory text is clea r, it is deter

minative of leg islative intent, unless enfor cing the plain meaning of the statute’s words would produce an absurd result. Entergy Gulf States, Inc. v. S u mm ers , 282 S.W .3d 433, 437 (Tex. 2009). Only when the statutory text is ambig uous “do we resor t t o ru l es o f construction or extrinsi c aids.” Shook v. W alden , 304 S.W .3d 910, 917 (Tex. App.—Austin 2010, pet. denied) (interna l quotations omitted);

see also Combs v. Metropolitan Life Ins. Co. , 298 S.W .3d 793, 796–97 (Tex. A pp.—Austin 2009, pet. denied)

.

DISCUSSIO N

I n its plea to the jurisdiction, the Comptroller does not challeng e any of t he fa ctual alleg ations in Walker Electric ’s pleading s. Rather, the Comptroller asser ts t h at ev en if those alleg ations are true, Walker Electric ’s claims are either barr ed by sovere ign immunit y or fail to prese nt a justiciable controve rsy . Thus, acc ording to the Comptroller, Walker Electric has failed to demonstrate tha t the trial court ha s subject-matter jurisdiction to consider its claims. “Te x as law r ecog nizes no right to judicial re view of a n administrative order unless (1) a statute provides the rig ht, (2) the order adver sely aff ects a vested proper

ty rig ht, or (3) the order otherwise violates some constitutional rig ht.” Gene ral Servs. Comm’n v. Litt le-Tex Insulation Co. , 39 S.W .3d 591, 599 (Tex. 2001). Walker Electric ’s pleadings asser t four theories under which it contends that it is entitled to judicia l r eview. First, Walker Electric claims that the Administrative Procedur es Act (APA) cre ates a g ener al rig ht to a contested case hear ing as well as a rig ht to judicial revie w of that contested case . Second, Walker Electric arg ues that the APA waives sovere ign im mu n it y f o r d e c la r a to r y ju d g me n ts c h a ll e n g in g th e v a li d it y o f a n a g e n c y r u le

. T h ir d , Wa lk e r E le c tr ic

7contends that it has as s er t ed claims within the ultra vires exception to sovere ign immunit y and

there fore can pr operly

be broug ht unde r the Uniform Dec lara tory J udg ment Act (U DJ A). F inally , Walker Electric asser

ts that its constitutional due-pr ocess and due-c ourse- of-law claims invoke the trial court’s inhere nt authority for judicial revie w. We revie w eac h of these alleg ed bases for judicial revie w sepa

rate ly

.

Conteste d case hearing

I n its main arg ument both at trial and on appea l, Walker Electric asser ts that the APA waives the state’s sovere ign immunit y for these claims. Specifica lly , Walker Electric contends that the APA require s state ag encie s to conduct a contested ca s e hear ing befor e issuing any order that adver sely aff

ects an individual’s rig hts. Fur thermore , Walke r E l ectric arg ues that beca use it was entitled to a contested case hear ing, the APA provides it with a rig ht to judicial re v i ew o f the Comptroller’s administrative dec ision. See Tex. Gov’t Code § 2001.171.

The APA define s a contested case as “a proce eding , including a ra t em aking or licensing proce eding , in w hich the leg al rig hts, duties, or privileg es of a party are to be deter mined by a state ag ency afte r an opportunity for adjudicative hear ing.” Id. § 2001.003(1). “A person who has exhausted all administrative re medies ava ilable within a state ag ency and who is a g g rieve d by

a final decision in a contested case is entitle d to judicial revie w” under the APA. Id. (empha sis added)

. The supreme court has held that section 2001.171 provides a limit ed rig ht to judicial revie w of contested case s in which the state a g ency ’s ena bling statute “ neither spe cifica lly authorizes nor prohibits judicial r eview of the decision.” Texas Dep’ t of Protective & Regulatory Servs. v . Mega Child Care, Inc. , 145 S.W .3d 170, 173 (Tex. 2004); see also Coastal Habitat Alliance v. Public Util.

8Comm’n , 294 S.W .3d 276, 281 (Tex. App.—Austin 2009, no pet.). Howeve r, for section 2001.171

to apply , the complained- of administrative decision must, by definition, be the result of a contested

case . See McAllen Hosps., L.P. v. Suehs , 426 S.W .3d 304, 314–15 (Tex. App.—Amar illo 2014, no pet.) (citing Tex. Gov’t Code § 2001.171); Texas Logos, L.P. v. Texas Dep’ t of Transp. , 241 S.W .3d 105, 123 (Tex. App.—Austin 2007, no pet.).

“[N]ot ever

y dispute betwee n an age ncy and another party constitutes a ‘conte sted

case ’ proc eeding falling within the APA’s provisi on reg arding judicial revie w.” McAllen Hosps. , 426 S.W .3d at 314. I f an ag ency is not require d to conduct a contested case hear ing befor e issuing

a g iven order , then section 2001.171 does not cre ate a rig ht to ju d i ci al revie w of that order

. Id. “This Court has repe atedly held that, absent express statut o ry authority , the APA does not independe ntly provide a rig ht to a contested case hear ing.” Texas Logos , 241 S.W .3d at 123; see also Texas Comm’n on Envtl. Quality v. B o n s er-Lain , 438 S.W .3d 887, 894 (Tex. App.—Austin 2 0 14, no pet.) (conc luding APA does not authorize judicial revie w of ag ency ’s decision not t o promulg ate rule). Walker Electric has not provided any arg ument as to why we should depar t from this prec edent. I n the absenc e of any such arg ument, we cannot conclude that the APA itself cre ates

a rig ht to a contested case hear ing. We there fore consider whether chapte r 2155 of the Gover nment Code or some ad m i n istrative rule aff ords vendors the rig ht to a contested case hear ing befor e debar ment. See McAllen Hosps. , 426 S.W .3d at 314 (noting that statute or age ncy rule can cr eate rig ht to contested ca se hea ring ). Section 2 1 5 5

. 0 77—the provision in the Gover nment Code that g ives the Comptroller the authority to debar vendors—doe s not purport to provide vendors with a rig ht to a contested case

9hear ing. Rather, it states that the Comptroller “by rule shall: (1) state g ener ally the rea sons for which

a vendor may be barred from part i ci p at i ng in state contracts and the periods for which the vendor may be barr ed; and (2) presc ribe the proce dures under which the [C omptroller] wi l l d et ermine wh et h er and how long a vendor will be barr ed.” Tex. Gov’t Code § 2155.077(c)

. Simi l ar l y , t h e administrative rules for debar ment require only that a vendor be notified that the Comptroller is conducting an investiga

tion, that the vendor be g iven an opportunity “to submit a writt en response ” within ten day s of not ice of the i nvestig ation, and that the vendor be allowed to “submit a writt en reque st for revie w” to the Comptroller. See 34 Tex. Admin. Code §§ 20.105–.107 (empha sis added) ;

see also McAllen Ho s

p . , 4 2 6 S.W .3d at 314 (noting that Texas Hea lth and Human Service Commi ssion’s r

ules reg arding rec oupment of funds from hospitals do not aff ord rig ht to contested

case hear ing)

. Thus, neither the statute nor the administrative rules provide vendors with a rig ht to

a co n tested case hear ing in connec tion with debar ment, and Walker Electric there fore wa s n o t entitled to such a he aring in this case. See Tex as Logos , 241 S.W .3d at 123.

Be cause neit her the statutes nor the rules rela ting to debar ment provide Walker Electric with a rig ht to a contested case hear ing, s ec t i o n 2001.171 of the APA does not aff ord Walker Electric the rig ht to judicial revie w of a debar ment order

. See McAllen Hosps. , 426 S.W .3d
at 314–15. There fore , we conclude that Walker Electric ’s pleading s reg arding the Comptroll er ’s failure to conduct a c ontested ca se hea ring do not invoke a valid wa iver of sove reig n immunit y . Validity of

adm inis trat ive rule Wa lk e r E le c tr ic a ls o a s s e r

ts th a t th e Co mp tr o ll e r ’ s r

u le d e f in in g g r o u n d s f o r d e b a r me n t is invalid beca

use it is inconsistent with the debar ment statute. Specifica lly , Walker Electric claims

10that section 2155.077(a) (3) of the Gover nment Code authorizes the Comptroller to de bar a vendor only for fra

ud rela ting to a contra ct with the state, while rule 20.105(d)( 5) authorizes debar ment for conviction of frau d rela ting to any g overnme ntal contra ct, reg ardle ss of whether it was a contra ct with the state or a fede ral or local g overnme ntal entity

. Compare Tex. Gov’t Code § 2155.077(a) (3), with 34 Tex. Admin. Code § 20.105(d)( 5). Acc ording to Walker Electric , section 2001.038 of the APA waives the state’s sovere ign immuni t y fo r Walker Electric ’s decla ratory judgme nt action seeking to invalidate rule 20.105. See Tex. Gov’t Code § 2001.038.

Section 2001.038 of the APA allows a party to seek decla ratory relief challeng ing the “validity or applicability of a rule

. . . if it is alleg ed that the rule or its t h re at en ed ap p l i ca tion interfe res with or impairs, o r t h re atens to interfe re with or impair, a leg al rig ht or privileg e of the plaintiff.” Id. We have interpre ted this section as a waiver of sovere ign immunit y . See Texas Dep’ t of S t a t e Health Servs. v. Balquinta , 429 S.W .3d 726, 744 (Tex. App.—Austin 2014, pet. filed). “Howe ver, sectio n 2 0 0 1 .038, like other cause s of action, require s the exis tence of a justiciable
controve rsy to establish the district court’s subject-matter jurisdiction.” Texas Logos , 241 S.W .3d
at 123. There fore , if invalidating an ag ency rule would not redr ess a plaintiff’s complained- of injury , then any opinion by the trial court or this Court reg arding the validity of that rule “would amount to

a mere abstrac t advisory opinion.” Id. at 123–24; see also Texas Music Library & Researc h Ctr. v. Texas Dep’ t of Transp. , No. 13-13-00600- CV, 2014 WL 3802992, *9 (Tex. App.—Corpus Christi J uly 31, 2014, pet. filed) (mem. op.) (conc luding that library ’s claim that APA rule was i n valid would not entitle library to recei v e g overnme nt funds, and that there fore APA claim would not redr ess library ’s alleg ed injuries).

11I n this case , Walker Electric asser ts that rule 20.105 is invalid beca use it authorizes debar ment for fra

ud committed aga i n st any g overnme ntal entity , wher eas the Gover nment Code authorizes debar

ment only for fraud committ ed aga inst the state or state age ncies. Compare Tex. Gov’t Code § 2155.077(a) (3), w i t h 3 4 T ex. Admin. Code § 20.105(d)( 5). As we discuss below, there is nothingin the plain lang uag e of the Gover nment Code that indicates a vendor c an only

be debar red for fra ud committed ag ainst the state. Howeve r, even if Walker Electric could ultimately prove that ru l e 2 0

. 1 0 5 is inconsistent with the Gover nment Code and there fore invalid, that still would not entitle Walker Electr ic to overturn the Comptroller’s deba rment orde r. As discussed above , Walker Elec tric does not have a rig ht to judicial review of the Comptroller’s debarm ent order, and Walker Electric’s attempt to invalidate an ag ency rule would
not vitiate the debar

ment order

. See Texas Logos , 2 4 1 S.W .3d at 123–24 (“The relief provided under section 2001.038 does not extend to invalidating” ag ency ’s order s); Friends of Canyon Lake, Inc. v. Guadalupe-Blanc o River Auth. , 96 S.W .3d 519, 529 (Tex. App.—Austin 2002, pet. denied) (conc luding that party lacke d standing to bring APA rule challeng e w h e n u n d e r ly ing controve rsy was exti ng uished by complaining party ’s failure to e x haust administrative reme dies). Be cause Walker Electric ’s complaint about rule 20.105 would not redr ess its complained- of injury , Walker Electric ’s reque st for decla

ratory relief under section 2001.038 of the AP A wo u ld be mere ly advisory

. There fore , Walker Electric ’s challeng e to rule 20.105 does not prese nt a justiciable co n t ro v er s y , and the tria l court lac ked subjec t-matter jurisdiction to consider tha t complaint. See Texas Logos , 241 S.W .3d at 123–24.

12Ultra vir es Walker Electric also seeks a decla ratory judgme nt that the C o m p t ro l l er was acting b ey ond its statutory authority in barr ing Walker Electric from participa ting in state contra ct s . Specifica lly , Walker Electric arg ues that section 2155.077 of the Gover nment Code authorizes the Comptroller to debar vendors only for fraud committ ed aga inst t h e s tate or a st ate ag ency . Given that the alleg ed fra

ud in this case involved a local school district, Walke r E l ectric asser ts that its alleg ed wrong doing cannot form the basis for debar ring it from state contra cts. There fore , acc ording
to Walker Electric , the Comptroller exceede d its authority in debar ring Walker Electric for a rea son not authorized by

statute. A suit seeking to compel a go v er n m ental officia l “to comply with statutory or constitutional provisions”—i.e., an “ultra vires” suit—is not barr ed by sovere ign immunit y . City of El Paso v. Heinrich , 284 S.W .3d 366, 372 (Tex. 2009). Suits alleg ing ultra vires or unconstitutional conduct by a g overnme ntal officia l are not barr ed by sovere ign immunit y beca use they “do not seek
to alter g overnme nt policy but rathe r to enfor ce exis ting policy .” Id. “I f a plaintiff alleg es only fac ts demonstrating acts within the office r’s leg al au t h o ri ty and discretion, the claim seeks to control
state ac tion,” is not a valid ultra vires c laim, “and is barr ed by sovere ign immunity .” CreedmoorMa h a W a t er S u pply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 515–16 (Tex. App.—Austin 2010, no pet.). There fore , in deter mining whether Walker Electric ’s ultra vires claim is excepted from sovere ign immunit y , we must deter mine whether the fac ts that Walker Electric alleg es, take n as true, w ould constitute ultra vires conduc t.

13Relevant here, the Gover n m ent Code states t hat t he C omptroller m ay bar a vendor

from par ticipating in state contra cts for: (1) substandard pe rfor mance under a

contra ct with the state or a state ag ency ; (2) materia l misrepre sentations in a bid or proposal to the state or a state ag ency or during the course of perf orming a contra ct with the state or a state ag ency ; (3) fraud ; or (4) brea ching a contr act with the state or a state ag ency . Tex. Gov’t Code 2155.077(a) (empha sis added).

There is nothing in t he above lang uag e that indicates the Comptroller can only bar a vendor for fra

ud committed ag ainst the state or a state ag ency . See id. § 2155.077(a) (3); Gene ral Motors, 243 S.W .3d at 685 (noting that courts co n s i d er s tatute’s plain lang uag e in deter mining leg islative intent). I n fac t, fraud is the only g round for

debar ment listed in the statute that does not nece ssarily involve some prior or ong oing contra ctual rela tionship betwee n the vendor and the s tate. Compare Tex. Gov’t Code § 2155.077(a) (3), with id. § 2155.077(a) (1)–( 2), (4). Walker Electric does not asser t that section 2155.077(a) is ambig uous, nor does it explain why the fra ud envisioned in the statute must be committed ag ainst the state or state ag encie s. Ba sed on the p lain lang uag e of the s tatute, we conclude that the C omptroller can bar a vendor upon finding that the vendor has comm i t ted fra ud, reg ardle ss of whether that fra ud was committed ag ainst the state. S

ee Entergy Gulf States , 282 S.W .3d at 437 (noting that when statutory text is clea r, it is determinative)

.

14T h e r e f o r e , e v e n if th e f

a c ts th a t Wa lk e r E le c tr ic p le a d e d a r e tr u e

— i. e . , th e Co mp tr o ll e r debar red W alker E l ec t ri c for a conviction i nvolving fraud ag ainst a local school district—there is nothing in the lang uag e of section 2155.077 to indicate that such a decision was bey ond the authority of t he C omptroller. Thus, Walke r Electric ’s pl eading s fail t o alleg e a valid ultra vi res claim. See Creedmoor-M

aha W ater Supply , 307 S.W .3d at 515–16. Be cause this claim instead seeks to control
state action—the C omptroller’s exercise of her lawful discretion—it is barr ed by sovere ign immunit y . Id. Fur

thermore , Walker E l ec tric does not asser t any additional fac tual asser tions or l ega l arg uments that could arg uably raise a valid ultra vires claim. I t also conce des that there are

no additional fact s o r ar gu m en t s that it should be allowed to reple ad should we hold that it has failed to alleg e a valid ultra vi res claim. There fore , we conclude that Walker Electric’s pleading s aff irmatively neg ate the exis tence of jurisdiction as to this claim, and the trial court should have g rante d the Comptroller’ plea to the jurisdiction on this issue without a llowing Walker Electric an opportunity

to amend its pleading s. See M iranda , 133 S.W .3d at 226–27.
Due proce ss and due course of law

Finally , Walker Elec t ric’s pleading s asser t that the Comptroller’s debar ment order violates Walker Electric ’s constitutional rig hts to due proce ss and due course of law. See generally U.S. Const. amend. XI V, § 1 (Due Process Clause); Tex. Const. art. I , § 19 (af fording citizens rig ht
to due course of law). Specifica lly , Walker Electric contends that d u e p ro ce s s requires that it be aff orded a contested case hear i n g b efore the Comptroller barr ed it from participa ting in state

15contra cts. There fore , Walker Electric asser ts that the trial court had implicit jurisdiction to revie w the Comptroller’s debar

ment order beca

use that or d e r v io la

te s Wa lk e r E le c tr ic ’ s c o n s ti tu ti onal rig hts.

“ Wh e n th e L e g is la

tu r e r e ma in s s il e n t o r d e n ie s a ri g h t to ju d ic ia l r e v ie w , a d mi n is tr a ti v e decisions may never

theless be attacke d in court if they adver sely aff ect a v es t ed p ro perty rig ht or otherwise violate some provision of the State or F eder al C onstitut ion.” Continental Cas. Ins. C o.

v. Functional Restoration Assocs. , 19 S.W .3d 393, 404 (Tex. 2 0 0 0 ) (interna l citations omitted). Howeve r, Walker Electric can raise its due-pr ocess and due-c ourse- of-law claims only if the complained- of administrative action impaired Walker Electric ’s vested proper ty rig ht. See Scott v. Alphonso Crutch LSC Charter Sch., Inc. , 392 S.W .3d 165, 170 (Tex. App.—Austin 2010, pet. denied) (mem. op.) (noting that constitutional challeng e to ag ency order based on taking s claim and due proc ess claim re quire ve sted proper ty rig ht). “A r ight is ‘ve sted’ whe n it has some definitive,

ra t h er t h an potential, exis tence .” Id. (interna l citations omitted). I f the Comptroller’s debar ment order does not aff

ect Walker Electric ’s vested proper ty rig hts, then Walker Electric has failed to plead a valid due-pr ocess or due-c ourse- of-law cla i m an d , t here fore , has failed to invoke the trial court’s inhere nt authority to judicial revie w. See Creedmoor-M aha W ater Supply , 307 S.W .3d at 525–26. I n this case , Walker Electric asser ts that the Comptroller’s debar ment order deprive s it of the rig ht to contra ct with the state in the future. Howeve r, Walker Electric does not asser t that the Comptroller’s debar

ment order aff

ecte d any ong oing contra cts or projec ts tha t Walker Electric had been awa

rded. A vendor does not have a vested proper ty rig ht to contra ct with the state, and any expectation or hope of obtaining future contra cts with the state, its ag encie s, or local g overnme ntal

16entities is purely a potential or conting ent rig ht. See Texas Logos , 241 S.W .3d at 116–17 (noting that

vendor did not have vested prope rty rig ht in potential awar d of state c ontrac t). There fore , Walker Electri c h a s f a il e d to a ll e g e th a

t th e Comptroller’s debar

ment order impairs a vested proper

ty rig ht. See Scott , 392 S.W .3d at 170. Be cause Walker Electric ’s pleading s fail to identify some vested proper ty rig ht, Walker Electric has not alleg ed a valid d u e- proce ss

or due-c ourse- of-law claim and, thus, has failed to i n v o k e t h e trial court’s inhere nt authority for judicial revie w. See Cree dmoor-Maha W ater Supply , 307 S.W .3d at 526.

CONCLUSION Having deter

mined that Walker Electric ’s claims either fail to invoke a valid waiver of sovereig n immunit y or fail to prese nt a jus ticiable controversy , we conclude that th e t ri al court

err ed in de ny ing the Comptroller’s plea to the jurisdiction. Fur thermore , we conclude that Walker Electric ’s pleading s aff

irmatively neg ate the exis tence of subject-matter jurisdiction, and there fore Walker Electric should not be aff orded the opportunity to reple ad. Thus, we reve rse the trial court’s order deny ing the Comptro l l er ’s p l ea to the jurisdiction and rende r judgme nt dismiss ing Walker Electric ’s claims for

want of jurisdiction.

__________________________________________

Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Reverse d and Dismissed Filed: Nove mber 21, 2014

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