### 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. 03-08-00475- CV

Texans Unitin g for Reform and Fre edom , Appellan t

v. Am adeo Saenz, Jr., P .E., Ind ividu ally and in h is Of fi cial Capacity as Executive D irec tor of the Texas Departm ent of Transp ortat ion; Coby Chase, In divid ually an d in his Of fi cial Capacity as Dire ctor of the Texas Departm ent of Transp ortat ion Gover nm ent and Publi c Affai rs Division; Texas Departm ent of Transp ortat ion; and T exas Transportation Com m ission , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0316 5, H ONO RAB LE P AUL DAVIS, JUDGE P RESIDING

O P I N I O N

Texans U niting for Reform and Fr eedom (TURF ) appea ls a district c ourt judgme nt dismiss ing, on a plea to the jurisd i ction, its suit ag ainst appellee s Amadeo Saenz, J r., P.E., individually and in his officia l capa city as Ex ecutive Direc tor of the Texas Depa rtment of Transpor tation; Coby Chase, individually and in his officia l capa city as Direc tor of the Texas Depa

rtment of Transpor

ta ti o n G o v e r

n me n t a n d Pu b li c A f f a ir s Division; the Texas Depa rtment of Transpor

tation (TxDOT); and the Texas Transpor tat i o n C o m mission (Commissi on). I n
two issues, TURF argues that the district c ourt (1) err ed in g ranting appellee s’ plea and (2) abused its discretion in denying it a continuance and adjudicating appellee s’ “mer i t s -b ased” plea throughpreliminary proce eding s rather than trial. For the rea sons e x plained below, we will overrule the se contentions and a ffirm the district c ourt’s judg ment.

BACK GR OUND Wit hin the last deca de, the Texas L eg islature has enac ted signific ant chang es to the

manner in which Texas’s transporta tio n infrastruc ture is financ ed, constructe d, and maintained. Among these enac tments have been leg islation authorizing the Commi ssion to desig nate a statewide
sy stem of highw ay s, toll roads, and other modes of transporta tion faci l i t i es k n o wn as the “TransTexas Corridor” (TTC); empower ing Tx DOT to develop and operate TTC fac iliti es either direc tly 1

or throug h the partici p at i on of g overnme ntal or private entities (with private participa tion to be

encour ag ed “[t] o the maxi mum extent prac tical and economica l ”); and expanding the ag ency ’s 2
power to toll both new and ex i s t i n g s t at e highw ay infrastruc ture. Howeve r, as Tx DOT and the 3 Commi ssion proce eded with steps t o m ak e these sorts of projec ts a rea lity , issues rela ted to the tolling of ne w or e x isting roa ds and the TTC conc ept prove d to be controve rsial.

Particularly controve rsial wer e Tx DOT’s plans to build two TTC projec ts—TTC-35, which would run roug hly para llel to curr ent I nterstate 35, and TTC-69, whi ch wo u l d run roug hly
para llel to curr ent U.S. Hig hway 59. Simpl y descr ibed, the planning proce ss for ea ch projec t incl u d ed , am ong other steps, sever al rounds of public meeting s or hear ings to elicit public input

conce rning whether the projec t s h o u l d be built in particula r are as and the viability of alterna tive
See ge nerallyTex. Transp. Code Ann. §§ 227.001-083 ( West S upp. 2009). 1 See id. §§ 227.021-.023. 2 See ge nerally id. §§ 228.001-254 (West Supp. 2009). 3 2potential routes. The proce ss would culminate in either a “no-bui l d o p t i o n ” o r a “tier one”

environmenta l-impact statement conce rning a sever al mile-wide “pre fer red corr idor,” which would be submitt ed for approva l by the Fe dera l Hig hway Administration. Assuming the projec t proce eded throug h “tier one,” the proce ss would essentially be repe ated in a “tier 2” in which the environmenta l impact of spec ific routes a nd transporta

tion facilities would be asse ssed. As this process continued, in the latter half of 2006 Tx DOT hired a marke ting firm
to provide cre ative service s, media place ment, and website development for what appellee s term “a statewide public information eff ort to inform and educa

te the public about meeting Texas’ transporta tion needs.” I n J une 2007, an adver tising campa ign—w ith the sloga n “Ke ep Texas Moving” —was launche d, with television, radio, print, billboard, and internet adver tisements that emphasized what wer e portray ed as the need for and benef its of toll projec ts and the TTC conce pt. 4
W h i l e some adver

tising ran statewide, the campa ign was focuse d on cities in or near the TTC-69 study are a, and to some e x tent, major cities along the TTC-35 study are a. Also, in J anuar

y 2007, Tx DOT contra cted with a public aff airs consulting firm, the Rodman Company , to provide communications and outrea ch conce rning the TTC to various specific audienc es at the local, state, and fede ral levels, including local officia ls. Among the stated g oals of Rodman’s “Te x as Outrea ch” work plan wer e “to identify highly targ eted leade rship audienc es and communicate w ith them directly to improve their under standing of Tx DOT’s g oals and strateg ies, and incre ase support for Tx DOT prog rams—par ticularly t h e Trans- Texas Corridor and tolling.” Rodman was also to provide “F eder al Outrea ch” to “educ ate audienc es about issues of importance

The visual mater ials fea tured a “Ke ep Te x as Moving ” log o. 4 3to [TxDOT] and the succe ssful implementation of Tx DOT’s fede ral leg islative ag enda.” Rodman

also assisted with planning and orga nizi ng for Tx DOT a series of “t o wn h al l ” m eeting s along the TTC-69 cor

ridor. Appellant TURF descr ibes itself as “a non-prof i t o rga nization whose mi ssion is to educate the public about the Texas g overnme nt’s new shift to tolling using controve rsial financ ing called public-private partne rships[,]

. . . the tolling of exis ting corr idor s , . . . the eminent domain abuse inhere nt in these claims (conf iscating private land to g ive to a private company for commerc ial
g ain),” and the TTC. TURF adds that i t i s “a g rassroots g roup of taxpay ing Texans who are asking for ref

orms that require acc ountability and g ood public policy as well as promoting non-toll, sensible transport at i o n s o l utions.” I n September 2007, TURF’ s founder and direc tor, Terr i Hall, filed an orig inal petition seeking injunctive and decla ratory relief t o restra in, as illega l, Tx DOT’s expenditures of public funds on the KTM campa ign or “lobby ing” of g overnme ntal units conce rning toll ro ads or TTC projec ts. Named as defe ndants wer e Tx DOT’s then-e x ecutive direc tor and
ap p el l ee C h ase. The defe ndants responde d with a plea to the jurisdiction asser ting, among other
g rounds, sovere ign immunit y and lack of standing

. Multipl e rounds of amendments to the pleading s and pleas to the jurisdiction followed. Ul t i m at ely , TURF proce eded as the sole plaintiff, naming appellee s Saenz, Chase, TxDOT, and the Commissi on as def endants. A hear ing on the defe ndants’ plea to the jurisdiction was initially set for October 18, 2007. On that day , the district court g rante d TURF a n inety -day continuance

. The hear ing was ultimately rese t for Marc h 20, 2008. During the interim, the parties conducte d discovery , including

4depositions of Saenz, Cha se, and other Tx DOT employ ees. Both parties f iled discovery

products, aff idavits, and other e vidence in connec tion with the pending ple a.

On the morning of Marc h 20, 2008, prior to the hear ing, T UR F fi led an amende d petition (which also incorporated its evidenc e by ref er en ce ) and another motion for continuance seeking additional time f or discovery

. The district c ourt took the continuance motion under advisement and proce eded with the hear ing. At the hear ing’ s conclusion, the court also took the plea under advisement. Approxim ately two wee ks afte r the hear ing, TURF moved to supplement the re cord w ith additional documents.

The district court ultimately g rante d both TURF’ s motion to supplement the rec ord and appellee s’ plea to the jurisdiction. I t rende red judgme nt dismiss ing TURF’ s suit in its entirety

. This appea l followed.

ANALYSIS

I n two issues on appea l, TURF argues that the dis t ri ct co u rt (1) err ed in g ranting appellee s’ plea to the jurisdiction and (2) abused its discretion in deny ing it a continuance and adjudicating , at the pre trial stag e, appe llees’ “ merits-base d” plea to the jurisdiction.

Stand ard and s cope of review

A plea to the jurisdiction challeng es a t ri al co urt’s authority to decide a case . See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 225-26 (Tex. 2004). An al y sis of whether this authority exis ts beg ins with the plaintiff’s live pleadings. Id

. at 226. The plaintiff has the initial burden of alleg ing fac ts that aff irmatively demonstrate the trial court’s jurisdiction to

5hear the cause . Id. (citing Texas A s s ’n o f B u s. v. Texas Air Control Bd. , 852 S.W .2d 440, 446 (Tex. 1993)). Whether the plaintiff met this burden is a question of law that we revie w de novo. Id. We construe the pleading s liberally , taking them as true, and look to the pleade r’s intent. Id. ; Texas Logos, L.P. v. Brinkmey er , 254 S.W .3d 644, 659 (Tex. App.—Austin 2008, no pet.). I f the pleading s do not contain sufficie nt fac ts to aff irmatively demonst ra t e t he trial court’s jurisdiction but do not aff

irmatively d emons trate incurable defe cts in jurisdiction, the i ssue i s one of pleading sufficie ncy , and the plaintiff s hould be afforde d the opportuni ty to amend. Mi r anda , 133 S.W .3d
at 2 2 6 -2 7. I f, on the other hand, the pleading s aff irmatively neg ate the exis tence of jurisdicti o n , then a plea to the jurisdiction may be g rante d without allowing the plaintiff an opportunity to amend. Id. at 227. When resolving issues prese nted by the plea t o t h e j urisdiction, we may consider evidenc e that the parties have submitt ed and must do so when nece ssary to resolve the jurisdictional issues. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000). I n fa ct , i n a p l ea t o the jurisdiction, a party may prese nt e vidence to ne g ate the exis tence of a jurisdictional fac t a lleg ed in the pleading s, which we would otherwise presume to be true. See Miranda , 133 S.W .3d at 227. To the ex tent the challeng e im plicates the merits of t he plainti ff’ s cause of action, the pa rt y as serting the plea has the burde n o f n ega t ing a g enuine issue of materia l fac t as to the jurisdictional fac t’s exis tence , in a manner simil ar to a traditional summary -judg ment motion. See id. at 227-28. Whether the party meets this burden is a question of law that we revie w de novo. Id. at 228. I f the pleading requirement has been met and the party challeng ing jurisdiction submits evidenc e that

6implicates the merits of the ple ader ’s ca use of a ction, we take as true a ll evidence favor able to the pleade r and indulge ever

y rea sonable infere nce and resolve any doubts in the pleade r’s favor

. Id. 5
T o i nvoke the district court’s subject-matter jurisdiction, a claimant must h av e the standing require d by the state consti t u t i o n . See Texas Ass’n of Bus. , 852 S.W .2d at 443-45. TURF claims associational standing to asser t its claims on behalf of its members. To have standing
to sue on its members’ behalf , TURF must demonstrate that: (1) its members would otherwise have standing to sue in the ir own rig ht; (2) the interests the org anization seeks to protec t a re g erma ne to the org anization’s pur

poses; and (3) neither the claim asser ted nor the relief reque sted require s the participa tion of individual members in the lawsuit. Id. at 445-46. At this juncture, the sole disputed element is whe ther TURF ’s member s would have standing to sue in their own rig ht.

To have standing to challeng e a g overnme ntal action or asser t a public rig ht (the sort of claims TURF asser

ts on behalf of its members) , a claimant g ener ally must demonstrate that he has suffe red a particula

rized injury distinct from that of the g ener al public. See Bland Indep. Sch. Dist. , 34 S.W .3d at 555-56. Howeve r, t here is a narrow e x ception to that rule—a taxpay er ha s standing
to seek prospec tive injunctive or decla ratory relief to restra in the illega l expenditure of public funds,

even without showing a distinct injury

. See id. at 556; Hende e v. Dewhurst , 228 S.W .3d 354, 373- 74, 378-79 & n . 3 1 (T ex. App.—Austin 2007, pet. denied)

. TURF relies on this exception as the basis for the individual stan d i n g of its members. Specifica lly , TURF asser ts—and it appea

rs undisputed on appea l—that its membership includes s t at e t ax pay ers who would have individual

A somewhat differ ent standard applies when a challeng e to a jurisdictional fac t’s exis tence 5 does not im p l i ca te the merits. See University of Tex. v. Poindexte r , 306 S.W .3d 798, 806 (Tex. App.—Austin 2009, no pet.). 7standing to sue to restra in ongo i n g illega l state expenditures. Fur ther, TURF insists , it has stated claims that appe llees ar e making “illeg al expenditures” within the mea ning of this ex ception.
I m p ortantly , these principles confe r standing on taxpay ers only to asser t clai m s
to restra in prospe cti ve g overnme ntal expenditures—money that has not y et been spent. See Bland Indep. Sch. Dist. , 34 S.W .3d at 556-58. As long as the public money has not y et been spent, the taxpay er is considere d to have a justiciable interest in ensuring that the money not be spent illega lly

. See id. at 556 (“‘ When a tax pay er brings an action to restra in the i l l egal expenditure

. . . of tax money he sues for himself, and it is held that his interest in the subject-matter is sufficie nt to support the ac tion .

. . .’” (quoting Hoffman v. Davis , 100 S.W .2d 94, 95 (Tex. 1937))). H oweve r,

o n ce t h e m o ney has been spent, a cause of action based on the past expenditures belong s to t h e taxi ng entity alone. See id. The Texas Supreme Court has also explained that this distinction rests upon a bala

ncing of taxpay ers’ interests in r estraining illega l spe nding of their tax dollars with the interest in avoiding disruption of g overnme ntal operations. See id. at 555-58.

I ndepende nt from the question of T UR F’ s standing , but somewhat rela ted to it, is the issue of whether its claims are barr ed by sovere ign immunit y . Absent waiver by the leg islature,

sovere ign immunit y g ener ally deprive s courts of subject-matter jurisdiction over suit s against the State, its ag encie s, or office rs or employ ees acting within their officia l capa city

. See City of El Paso

v. Heinrich , 284 S.W .3d 366, 369-76 (Tex. 2 0 0 9 ). I n its attempt to invoke the district court’s subject-matter jurisdiction, TURF relies on the “ultra vires” exception to sovere ign immunit y , which permits a plaintiff to sue a state officia l in his officia l capa city (there by binding the State throug h its
ag ent) for prospec tive injunctive or decla ratory relief to restra in the officia l from violating statutory

8or constitutional provisions. See id. at 372-73, 377. Sovereig n immunit y d o es not bar such suits

beca use, in c oncept, acts of state off icials that are not lawfully authorized are not considere d to be
acts of the State, and the reme dy of compelling such officia ls to comply with the law, while binding

on the State, “do[es] not attempt to exert control over the state [but ] attempt[s] to rea ssert the control of the state.” Id. at 372-73 (e mphasis added)

.

To asser t a valid ultra vires claim, the claimant “must not complain of a g overnme nt officer ’s ex erc ise of di scre tion, but rathe r m ust alleg e, and ultimately prove, that the officer acted without leg al authority or failed to perf orm a purely minist eria l act.” Id. at 372. Otherw ise, the suit,

even if seeking only prospec tive decla ratory or injunctive relief , im plicates sovere ign immunit y beca use it seeks to control state action. See id. Additionally , even if the suit complains of ultra vires actions, the reme dy soug ht cannot have the eff ect of awa rding retrospe ctive monetary relief ag ainst the State or other relief that would independe ntly implicate sovere ign immunit y . See id. at 369-76; Creedmoor-M

aha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 515 (Tex. App.—Austin 2010, no pet.).

As detailed below, TURF complains of the same acts as both “illeg al expenditures” and “ultra vires” acts. Wit h respe ct to both complaints, it is not enoug h that TURF pleads or arg ues leg al conclusions that appel l ee s ar e violating statutory provisions. Rather, TURF has the initial b u r d e n o f a ll e g in g

facts that aff

irmatively demonstrate the district court’s subject-matter jurisdictio n . See Miranda , 133 S.W .3d at 226. And “we construe the statutory

. . . provisions that are implicated, apply them to the fac ts [TURF] has pled and that wer e not neg ated by evidenc e [per Miranda ], and deter mine whether [TU R F] has alleg ed acts that would constitute violations of the rele vant

. . .

9statutory

provisions.” Creedmoor-M aha W ater Supply Corp. , 307 S.W .3d at 516 (c iting Director of Dep’ t of

Agric. & Env’t v. Printing Indus. Ass’n , 600 S.W .2d 264, 265-70 (Tex. 1980) ; Hende e , 228 S.W .3d at 368-69))

.

B e f o re turning to this analy sis, howeve r, we observe th a t T U RF ’ s c la im s a g a in s t s o me of t he appellees are barre d by sovere ign immuni ty reg ardle ss of whether it has ot herwi s e i n v oked the district court’s subject-matter jurisdiction. The Texas Supreme Court has rec ently clar ified that an ult ra vires suit (1) must be asserted ag ainst a st at e o ff icial i n his officia l capa city , and (2) even while the reme dy binds the S t ate and thus has the same prac tical eff ect as a judgme nt ag ainst the State itself, “the g overnme ntal entities themselves—as opposed to their office rs in their officia l ca p ac i t y

—rema in immune from suit.” See Heinrich , 282 S.W .3d at 373. Thus, even assuming TURF has standing to asser t its claims, it cannot, throug h relianc e on the ultra vires exception, avoid the sovere ign immunit y of Tx DOT and the Commi ssion. Consequently , its claims
ag ainst those appellee s are barr ed unless the leg islature has w aived that immunity . TURF ha s not pled or otherwise demonstrated such a waiver with r espec t to its ultra vires claims ag ainst Tx DOT and the Commi ssion. Although TURF cites prior state ments from this Court to the effec t that the UDJA “wa ives” sovere ign immunit y with respe ct to an ultra vires suit, Heinrich and other rec ent Texas Supreme Court decisions have clar ified that the UDJA’s waiver is limit ed to suits challeng ing the validity of cer

tain g overnme ntal ordinanc es or statutes. See id. at 373 & n.6; accord Texas Dep’ t of Ins. v. Rec onvey ance Servs., Inc. , 306 S.W .3d 256, 257-59 (Tex. 2010) (per curiam). Acc or d ingly ,

10we hold, as an initial matter, that the district court did not err in dismiss ing TURF’ s claims ag ainst

Tx DOT a nd the Commiss ion for wa nt of subject-ma tter jurisdiction. 6 This leave s Saenz and Chase, whom TURF has purported to sue in both their officia l and individual c apac ities. Heinrich ag ain g uides us in na rrowing the parties and issues in dispute.
I n that case , the supreme court indicated that injunctive reli ef t o co n trol a g overnme ntal unit’s spending would “nec essar ily ” come from the g overnme ntal unit rathe r than indi v i d u al m ember s of its g overning body , meaning that the plaintiff must sue an appropr iate ag ent of the unit in his or her officia l capa city to obtain that relief

. See Heinrich , 282 S.W .3d at 377. The same is true here

. The reme dy TURF seeks in its suit—restraining state spending —would lie ag ainst Saenz and Chase in their officia l ra t h er t han individual capa cities. TURF’ s complaints on appea l are limit ed to challeng ing the dismiss al of its claims seeking these reme dies. To the extent TURF is complaining about the dismiss al of its “individual” claims ag ainst Saenz and Chase, it has prese nted nothing for revie w. See Tex. R. App. P . 33.1.

We now turn to whether TURF invoked the district court’s subje c t- ma tt e r ju r is d iction
to adjudicate its claims ag ainst Saenz and Ch as e in their officia l capa cities (the “off icials”). Specifica lly , we consider whether the fac ts TURF has alleg ed and that wer e not neg ated by evidenc e constitute violations of the statutory provisions on which TURF r elies.

I n the alternative, TURF’ s claims ag ainst Tx DOT and the Commi ssion wer e proper ly 6 dismiss ed for the same rea sons that we aff irm dismiss al of TURF’ s claims ag ainst Saenz and Chase in their offic ial capa city , discussed below. 11TURF ’s claim s On appea l, TURF argues th at it stated claims predic ated on violations of three prohibitions in chapte r 556 of t h e g overnme nt code, as well as violations of the fede ral Hatch A ct.

Gove rnm ent code se ction 556.004 TURF urg es that it stated a claim that t h e o fficials are violating g overnme nt code section 556.004. This section provide s:

Sec. 556.004. PROHI BI TED ACTS OF A GENCI ES AND I NDIVI DUAL S. (a) A state ag ency may not use any mon ey under its control, including appropr iated money , to financ e or otherwise support the candida cy of a person for an office in the leg islative, executive, or judic i al branc h of state g overnme nt or of the g overnme nt of the United States. This prohibition extends to the direc t or indirect employ ment of a person to perf

orm an action descr ibed by

this subsection. (b) A state office r or employ ee may not use a state-owne d or state-lea sed motor vehicle f or a pur pose desc ribed by

Subsection (a)

. (c) A state office r o r employ ee may not use officia l authority or influence or p er mit the use of a prog ram administered by the state ag ency of wh i ch t h e person is an office r or employ ee to interf er e wi t h or aff

ect the result of an elec tion or nomination o f a candida te or to achie ve any other political purpose. (d) A state employ ee m ay n o t co er ce , at t empt to coer ce, command, re strict, attempt to restric t, or preve nt the pay ment, loan, or contribution of any thing of value to a per son or political org anization for a political purpose

. (e) For purposes of Subsection (c) , a state office r or employ ee does not interfer e with or aff

ect the results of an elec tion or no m i n ati on if the individual’s conduct is permitted by a law rela t ing to the individual’s office or employ ment and is not otherwise unla wful.

12Tex. Gov’t C ode Ann. § 556.004 (West 2004). A s tat e em p l o y ee who vi olates subs ections (c) or

(d) of section 556.004 is subject to immedi at e t er m i n ati on of employ ment, see id. § 556.007 (West 2004), and a state ag ency is pro hibited from using appropr iated funds to compensa te such employ ees, state office rs who violate subsection (c) , or state office rs or employ ees who violate subsections (a) or (b) of sec tion 556.004. See id. § 556.008 (West 2004).

On appea l, TURF relies on subsection (c) of section 556.004. I t asser ts that the fac ts it alleg ed in its pleading s that wer e not co n cl u s i vely neg ated by evidenc e demonstrate that the officia ls’ “ac tions in spending public money on the ‘Ke ep Texas Moving’ campa ign” constitute

a prohibited use of their officia l authority or influence or the p er m i t t i n g o f the use of a prog ram they administer “to achie ve [a] political purpose” within the meaning of this provision. The parties’ 7
arguments on this point cente r on conclusory asser tions that KTM advert i s em en t s and communications are “political” in nature , as TURF urg es, versus mere ly “informa tional” or “educ ational,” as the officia ls insist. To deter mine whether TURF has stated a claim for a violation of subsection (c) , howeve r, we must first deter mine what the leg islature meant by “political purpose” in that provision.

Statutory construction prese nts a question of law that we revie w de novo. See State

v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006). Our primary objective in statutory construction is to
g ive eff ect to the leg islature’s intent. See id. We seek that intent “first and fore most” in the statutory

There is no dispute that eac h officia l is either a “state office r” or “state employ ee,” and the 7 distinction betwee n the t wo s tatutory cate g ories is not materia l to this case . See T ex . Gov’t C ode Ann. § 556.001(3), (4) (West 2004). L ikewise, there is no dispute that Tx DOT is a “state ag ency” under c hapter

556. See id. § 556.001(2) ( West 2004). 13text

. Lexington Ins. Co. v. Strayhorn , 209 S.W .3d 83, 85 (Tex. 2006). “W h er e t ex t is clea r, text is deter minative of that i n t en t

. ” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2 009) (op. on reh’ g ) (citing Shumake , 199 S.W .3d at 284; Alex Sheshunoff Mgmt. Servs.

v. Johnson , 209 S.W .3d 644, 651-52 (Tex. 2006)). We consider the words in context, n o t in isolation. State v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002). We rely on the plain meaning of the
text , unless a differ ent meaning is supplied by leg islative definition or is a ppare nt f rom context, or unless such a construction leads to absurd results. See Entergy Gulf States, Inc ., 282 S.W .3d at 437; City of Rock

wall v. Hughes , 246 S.W .3d 621, 625-26 (Tex. 2008) ; see also Tex. Gov’ t Code Ann. § 311.011 (West 2005) (“Words and phrase s shall be rea d in context and construed acc ording to the rules of g rammar and common usag e,” but “ [w] ords and phr ases that have ac quired a technica l or particula r meaning , whether by leg islative definition or otherwise, shall be construed acc ording ly .”). We should also rea d ever

y word, phrase , and expression in a statute as if it wer e deliberately chosen, and likewise presume that words excluded from t h e s tatute are done so purposef ully

. See Shook

v. W alden , 304 S.W .3d 910, 917 (Tex. A pp.—Austin 2010, no pet.). Our a naly sis of the statutory
text is also informed by the presumptions that “the entire statute is intended to be eff ective” and that “a just and rea sonable result is intended,” Tex. Gov’t Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as “the object soug ht to be attained,” “cir cumstance s under which the
statute was enac ted,” leg islative history , and “common law or former statutory provisions, including laws on the same or simil ar subjects.” Id. § 311.023(1)- (4) (West 2005). Simi larly , we assume that when e nacting a statute, the leg islature was awa re of the backg round law a nd acte d with refe renc e to it. See Ack

er v. Texas W

ater Comm’n , 790 S.W .2d 299, 301 (Tex. 1990)

. Howeve r, only when

14the statutory text is ambiguous “do we ‘re sort to rules of c onstruction or extrinsic aids.’” Entergy Gulf States, Inc ., 282 S.W .3 d at 437 (quoting In re Estate of Nash , 220 S.W .3d 914, 917 (Tex. 2007)). Although the leg islature used the term “political purpose” in both subsection (c) and (d) of section 5 5 6 .004, it did not define the t erm any wher e in chapte r 556. All other thi ng s being equal, the adjec tive “political,” like its noun form, “politics,” can have a rang e of meaning s. I n its
most g ener al sense, “politics” ref ers to the scienc e of the org anizatio n o r ad m i n istration of
g overnme nt, and “political” is that which rela tes to g overnme nt or the conduct of g overnme nt. The

8 9 leg islature used “political” in this sense elsewhe re in chapter 556—section 556.0055 regulates the

use of state funds for “lobby ing” by “political subdivisions .” See Tex. Gov’t Code Ann. § 556.0055 (West 2004). The terms also have narr ower (and sometimes pejora tive) connotations rela ting to the
g rappling betwee n individuals and g roups for power , leade rship, and influence over g overnme nt ,

See Black’

s Law Dictionary 1277 (9th ed. 2009) (“[t] he scienc e of the org anizat ion and 8 administration of the state”) ; W ebster’s Ni nth New Collegiate Dictionary 911 (1984) (“the art or scienc e of g overnme nt”); see also id

. (“the total complex of rela tions betwee n people in society ”). S ee Black’ s Law Dictionary 1276 (“of or rela ting to the conduct of g overnme n t ”) ; 9 W ebster’s Ninth New Collegiate Dictionary 910 (1984) (“of and rela ting to g ov er n m ent, a g overnme nt, or the con d u ct of g overnme nt,” “org anized in g overnme ntal terms”) ; see also Margrave

s v. State , 56 S.W .3d 673, 687 & n.6 (Tex. App.—Houston [14t h Dis t

. ] 2 0 0 1 , n o pet.) (citing dictionary definition of “political” as “of or perta ining to public policy

. . . rela ting to aff airs of state or ad m i nistration” in distinguishing “political” use of state airc raf t from “per sonal” use); Heidtman v. City of

Shaker Heights , 126 N.E.2d 138, 143 (Ohio 1955) (quoting dictionary definition of “politics” as “the branc h of civics that trea ts of the principles of civil g overnme nt and the conduct of s t at e aff

airs; the administration of public aff airs in the interest of peac e, prosper ity and safe ty of the state; statecr aft; political scienc e; in a wide se nse embra cing the scienc e of g overnme nt and civil polity ”). 15espec ially throug h elec toral or partisan competit ion. Additionally , a third set of definitions, 1 0 somewher e in betwee n the other two in their scope and g ener ality , ref ers to the formulation and influencing of g overnme ntal policy , as distinguished f rom the administration of such policy

. 1 1
We can quickly conclude that the leg islature did not i n t en d to incorporate the first definition of “political” in subsec tion (c). Assumingthat meaning of “political” in subse ction (c) , the provision would prohibit stat e em p l o y ees from using their officia l authority or influence or permitting the use of a state ag ency progra m to achie ve a purpose rela ted to g overnme nt or the conduct of g overnme nt. The leg islature could not possibly have intended to mandate g overnme ntal inaction, and we must reje ct such a co n s t ru ction. See T.C.R. v. Bell County Dist. Atty’s Office , 305 S.W .3d 661, 671-72 (Tex. App.—Austin 2009, no pet.) (discussing “absur d results” limit ation

on text ual literalism, wher eby we reje ct constructions that leg islature could not possibly have i n t en ded); see also Tex. Gov’t Code Ann. § 311.021(2), (3) (we are to presume that “the entire
statute is intended to be eff ective” and that “a just and rea sonable result is intended”)

. Howeve r, the

rema ining potential definitions and constructions require further analy sis. I t is not inconce ivable

See Black’

s La w Di cti onary 1277 (“politics” includes “[t] he activity or profe ssion of 1 0 eng ag ing in political aff

airs”) ; W ebster’s Ninth New Collegiat e D ic tionary 910-11 (1984) (“politics” includes “the art or scienc e conce rned with wi n n i ng and holding control over a g overnme nt

. . . competition betwee n competin g interest g roups or individuals for power and leade rship (as in a g overnme nt)

. . . p olitical life esp. as a principal activity or profe ssion

. . . political activities char acte rized by artful and often dishonest prac tices

. . . the political opinions or s y m p at h i es o f a p er son” and “political” includes “of, rela ting to, or involving politics and esp. party politic s ”) ; see also Heidtman , 126 N.E.2d at 143 (“politics” includes “political aff airs in a p arty sense; the administration of public aff airs or the conduct of political matters so as to car ry elec tions and secur e public office ; party

intrigue s; polit ical wire pulling; tricke ry ”). W ebster’s Ni nth New Collegiate Dictionary 911 (“ p o l i tics” i ncludes “the art or scienc e 1 1 conce rned with guiding or i nfluenc ing gove rnmental poli cy ” and “political” includes “of, relating to, or conce rned with the making as distinguished from the administration of g overnme ntal policy ”). 16that the leg islature intended subsection (c) to prohibit state employ ees from using officia l authority

or influence or permitting use of state prog rams to impact the formulation of broade r public policy ,
as opposed to mere ly exercising deleg ated power s t o i m p l ement and administer such policy

. Alterna tively , subsection (c) could have been intended t o more narrowly prohibit state employ ees from using officia l authority and inf l u ence or permitting use of state prog rams to help particula r individuals or g roups g ain power , leade rship, and influence over g overnme nt and the policy making
proce ss throug h elec toral or pa rtisan competition. We can obtain additional g u id a nce reg arding the meaning of “political purpose” from the s tructure of subs ection (c). Wit hin subsection (c), t he legislatu re p ro h i bited state officers and employ ees from using their officia l authority or influence or permitting state prog rams (1) to aff ect the re s u l t of an elec tion; (2) to aff ect the nomination of a candida te; or (3) to achie ve “any other political purpose.” This usag e demonstrates that the l eg islature considered the fi rs t t wo purposes (af fec ting elec tion results or candida te nominations) to be “political purposes.” Fur ther, the fac t that the leg islature prec eded th e c a tc h

- a ll phrase “any other political purpose” with two specific examples of “political purposes” is also signific ant. Under the rule of ejusdem g ener is, when words of a g ene ral nature are used in connec tion with the desig nation of particula r objects or things, we g ener ally presume that the leg islature intended to limit the g ener al words to the same class or kinds

as the specific examples. See Hilco Elec. Coop. v. Midlothian Butane Gas Co. , 111 S.W .3d 75, 81 (Tex. 200 3 ) (“ [ T ] he rule of ejusdem g ener is

. . . provides that when words of a g ener al nature are used in connec tion with the desig nation of particu l ar objects or classes of persons or things, the meaning of the g ener al words will be restric ted to the particula r desig nation.”); Hightower v. State

17Comm’r of Educ. , 778 S.W .2d 595, 598 (Tex. Civ. App.—Austin 1989, no writ) (apply ing ejusdem
g ener is i n co n struing “other full-time profe ssional employ ee” to be limit ed to jobs entailing

same ty pes of activities as specific job classifications that prec eded it in stat u t e) ; see also Hilton

v. Southwestern Bell Tel. Co. , 936 F.2d 823, 828 (5th Cir. 1991) (per curiam) (ejusdem g ener is rule “is one of limit ation, restric ting g ener al terms, such as ‘any other’ and ‘and the like,’ which follow specific terms, to matters simil ar to those specifie d”). Apply ing that g uidepost here , it indicates that the leg islature in subsection (c) viewed “politi ca l p u rposes” to mean purposes simil ar in kind or
nature to achievingor aiding the nomination or elec tion of candida tes. 1 2

Also instructive are subsection (c) ’s historical origi ns. The statute that beca me g overnme nt code chapte r 556 was orig inally enac ted in 1983. Act of May 28, 1983, 68th L eg ., R.S., ch. 579, 1983 Tex. Gen. L aws 3763 , 3 7 6 3 -6 5

. As enac ted, the statute’s prohibitions included only those found in curr ent subsections (c) an d (d ), as well as the lang uag e found in curr ent subsection (e)

. See id. at § 3, 1983 Tex. Gen. L aws 3763, 3763-64. These t y p es o f re s t ri ctions 1 3

The leg islature’s use of “political purpose” in subsection (d) is not inconsistent with this 1 2 construction. The re, a s previously noted, t he leg islature bar red c erta in actions by

state employ ees to influence other persons’ contributions or loans of things of value “to a person or politic al org anization for a political purpose.” Tex. Gov’t Code Ann. § 556.004(d) (West 2004). “Political org anization,” like “political purpose,” is not define d. Howeve r, subsection (d) implies that acts in rela tion to a “political orga n i z ati on” are not in themselves “for a political purpose,” as the provision’s focus is limit ed to inf luencing contributions or loans of things of value “to a per son or political org anization for a polit ical purpose .”

The prohibition ag ainst state ag encie s using appropr iated money for leg islative lobby ing 1 3 found in curr ent section 556.006 (discussed below) did not appea r unt i l 1 9 97, when it was added as part of a broader series of enac tments rela ted t o state fiscal matters. See Act of M ay 2 8 , 1 9 9 7 , 75th L eg ., R.S., ch. 1035, § 86, sec. 556.006, 1997 Tex. Gen. L aws 3845, 3866-67. The limit ations on use of state resour ces for supporting candida tes for office contained in curr ent subsections (a) and (b ) o f s ec tion 556.004, as well as curr ent section 556.005’s restric tions ag ainst state ag encie s employ ing lobby ists (discussed below) wer e added in a 1999 enac tment intended to codify spending 18have a long history in Americ an law, d at i n g b ac k to as ear ly as the Civil Service Act of 1883,

also known as the Pendleton Act, in which Congr ess cre ated a merit-base d civil service , esche wing “the spoils sy stem under which fede ral employ ees came and went, depending upo n p arty service and cha ng ing a dminist rations ra

ther than meritorious perf ormanc e.” See United States Civil Se rv. Comm’n v. National Ass’n of Letter Carriers , 413 U. S

. 5 48, 557-59 (1973) (summarizing this history). To preve nt the former “mix ing of partisan politic s and routine fede ral service ” from undermining the merit sy stem, id ., Congr ess provided that “no person in the public service is for that

rea son under any obligations to contribute to any political fund, or to r ender any political se rvice ,” and that “no person in said service has any rig ht to use his official author ity or influenc e to coe rce the political action of any person o f b o d y . ” Id. at 558 (quoting Pendleton Act). Additional limit ations on fede ral employ ees’ political activities wer e subsequently imposed by rule, Civil Service Commi ssion decisions, and statute, most prominently the Hatch Act, which was also extended to cer

tain employ ees of state g overnme ntal entities that rec eive fede ral funds. Letter Carriers , 413 U.S. at 559-63; see 5 U.S.C. §§ 1501-08 (state and local employ ees) , 7221-26 (fe dera l employ ees)

. As the United States Supreme Court has observe d, these limit ations advanc ed the g oals of ensuring that cover ed employ ees impartially execute the laws “without bias or favor itism for or ag ainst any p o l i t i cal party or g roup or the members there of,” preve nting a “ra pidly expanding Gover nment work forc e” from being “employ ed to build a power ful

. . . political machine,” ensuring that “employ

ment and advanc ement in t h e Go v ernment service not depend on political

restric tions that had former ly been imposed throug h appropr iations act riders. Act of May 29, 1999, 76th L eg ., R.S., ch. 1498, § 1, s ec s. 556.004-.005, 1999 Tex. Gen. L aws 5153, 5153-54; see Senate Comm. on Financ e, B ill Analy sis, Tex . S.B. 177, 76th L eg ., R.S., 1999. 19perf

ormanc e,” and sh i el d i n g empl oy ees “fr om pressure and express or tacit invitation to vote in a certain way or perform poli tical chores i n order to curr y favor with superiors.” L et t er Carriers , 413 U.S. at 566-67. I n light of these orig ins and purposes, the fede ral courts have long held that the “political” activities targ eted b y th e e n a c tm e n ts a r e p a r ti san political activities, those direc ted toward the succ ess of a

political party

. See U

nited Pub. W

orkers v . Mitchell , 330 U.S. 75, 100 (1947). Some version of these restric tions on g overnme nt employ ees’ political activities has since been replicated in e very state, including Texas. Although ther e appe ar to be no repor ted Texas judicial decisions on point, the Attorney Gene ral, analy zing statutes with lang uag e materia lly simil ar to subsections (c) and (d) of sectio n 556.004, has conclude d that the Texas enac tments

are modeled on the Hatch Act and prohibit only partisan or elec toral political activities. See Opinion No. MW-149 (1980) (re striction on DPS employ ees) ; Opinion No. M -1 0 99 (1972) (re strictions on depar

tment of public welfa

re employ ees)

. Court s ap ply ing other states’ para llel political-ac tivity restric tions have rea ched simil ar conclusions

. See Bauers v. Cornett , 865 F.2d 1517, 1524-27 (8th Cir. 1989) (Missouri prohibition on s o l i ci ting financ ial assistance from
st at e em p l o y ee s for “any political party , candida te, political fund, or publication, or for any other political purpose” tied to elec tions having substantial political-party participa tion); Montana Sports S h o o ting Ass’n, Inc. v. State of Montana , 185 P.3d 1003, 1005-09 (Mont. 2008) (prohibition
ag ainst ag enc y em p l o y ee using “off icial authority or influence for the purpose of

. . . influencing the political actions of any person or body ” did not bar ag ency employ ees from lobby ing leg islature; U.S. Su p re m e C o urt’s prec edents supported “dec ision to limit the phrase ‘political actions’ to partisan politics”); Heidtman v. City of Shaker Heights , 126 N.E.2d 138, 142-43 (Ohio 1955) (city

20employ ee’ s circ ulating of initiative petition did not violate local prohibition on “political activity ”;

term re fer red to “ politics in i ts narrow er pa rtisan sense” ). We must presume t h at t h e leg islature was familiar with these connotations of “p o l itical” purpose when enac ting a statute of this ty pe. See State v. Y

oung , 265 S. W

. 3 d 6 9 7 , 703 (Tex. App.—Austin 2008, pet. denied)

. These co nnotations, along with the structure of subsection (c), l ead us to conclude that the l eg islative focus of g overnme nt co d e s ection 556.004, subsection (c), i s on preve nting state office rs and employ ees fr o m u s ing their officia l authority or influence or per

mitti ng the us e of state ag ency prog rams to ac hieve “ political purposes” r elated to candidate elec tions and partisan politics, as opposed to achie ving more g ener al influence on public policy . TURF c omplains only of the latter

. I n its live petition, TUR F alleg es that “[f]ol lowing a leg islative session [2007] in which it was roundly criticized for its advoca cy of an expansive toll road policy , Tx DOT launche d

a political campa ign called “Ke ep Texas Moving” (“K TM”) in an attempt to advocate a public policy

o f t o l ling most roads in Texas. As fede ral, state, and local officia ls debate and vote on the advisability of this policy , and the public weig h s i n on the issue via environmenta l clea ranc e hear ings, Tx DOT has soug ht to influence this political issue with its KTM campa ign.” T U RF further pleads that “the KTM campa ign is a one-sided attempt to advocate one political point of view on a highly controve rsial matter that is far fro m p o l i t i ca l ly decide d” and that Tx DOT is eng ag ing in “blatant a dvocac y

for a toll road policy

throug hout the state.” Simi l ar l y , TURF relies on evidenc e that, in its view, demonstrates that the KTM
campa ign is “political advoca cy ” intended “to skew the political debate in Texas in favor of

21expansive toll road policy .” This i n cl u d es materia ls from the marke ting firm that devised the

KTM campa ign, which ref lect that a major focus of the campa ign was t o co m bat what had been deter

mined from polling to be “ver y low overa ll publ i c aw ar eness” reg arding “the TTC and toll roads” c o mb in e d with “neg ative press” g ener ated by “per sistent local opposition and the series of public meeting s held around the state reg arding the Trans- Texas Corridor.” Goals of the campa ign included “cr eat[ing] an informed public about the benef its o f t h e T T C and tolls,” “mitigat[ ing]
neg ative press,” and “implement[ing] a sustainable and measura ble means for Tx DOT to proac tively inform and involve the public on the ag ency ’s strateg ic i n i t iatives.” The rec ord also includes adver tisements, scre en shots from the “Ke ep Texas Moving” website, and Tx DOT training materia ls used to prepa

re repr esenta tives for talk-ra dio appea ranc es, which ref

lect t h e m es s ag ing that road cong estion in Texas is a problem, that T ex as ’s population g rowth is outpacing traditional transporta tion-funding mecha nisms, th at T x DO T has innovative solutions for the problem that include, but are not limit ed to, toll roads and the T T C conce pt, and that toll roads and the TTC

conce pt have numerous benef its. Citi ng expert aff

idavits, TURF attacks various Tx DOT asser tions
reg arding toll roads as “slanted,” “unsupported,” or “fa lse.” TURF also cites evidenc e to the eff ect
t hat issues rela ting to toll roads and the TTC have been controve rsial, that individual ci t i z en s and gra ssroots g roups l ike TURF had spoken out in opposition to these sorts of p ro j ec t s , an d that various plans and proposals rela ted to such projec ts wer e curr ently being debate d at public hear ings and other fora

. Whil e these alleg ations and evidenc e, if taken as t ru e, might ref lect ag ency eff

orts
to influence public o p i n i o n (a n d, ultimately , public policy ) conce rning TTC projec ts or tolling,

22TURF has not alleg ed nor prese nted evidenc e of the sorts of “political purposes” that are the conce rn

of subsection (c)

. I n fac t, the evidenc e is to t h e co n t ra ry . I n his deposition, Chase testified that
Tx DOT had postponed the KTM media eff ort until June 2007 so it would not coincide with e ither
t h e 2006 g overnor ’s rac e or the 2007 leg islative session. We also observe that durin g S ae n z ’s deposition, T UR F’ s counsel, while questioning the witness reg arding his understanding of chapte r 556.004(c) ’s limit s, acknow ledg ed “I k n o w y ou’re not doing that” when posing a hy pothetical of Tx DOT using “tax money to promote Gover nor Perry as part of its promotion of t oll roads.” The closest T UR F comes to raising a fact i ssue reg arding “political purpose” i s an aff idavit from a Be x ar County commissioner who “be lieve[d] that Tx DOT’s Keep Texas Moving
campa ign constitutes a

n indirect political a

ttack on me and other public off icials who question the advisability of an extensive toll road policy ” in that it “implies that those public officia ls

. . . are not i n favor of ‘kee ping Texas moving.’ ” Wit hout more, we cannot conclude that these sta t em en t s raise a fac t issue as t o t h e s o rt o f nexus with partisan and elec toral politics require d to violate subsection (c)

. We c onclude that TURF has failed to sta te a claim to r estrain actions ultra vires of section 556.004 and lacks standing to a ssert its c laims pr edica ted on violations of that provision. 1 4

As on e of its response s to TURF’ s arg uments conce rning g overnme nt code 1 4 section 556.004, t h e o ff

icials have asser

ted that the KTM campa ign is specific ally authorized by section 228.004 of the tr ansportation code , which provide s: The de partment may , notwithstanding Chapter 2113, Gover

nment Code, eng ag e in marke ting, advertising , and other activities to promote the development and use of toll projec ts and may enter i nto contra cts or ag ree ments nece ssary to procur e marke ting, adver

tising, or other promotional service s from outside service providers. Tex. Transp. Code Ann. § 228.004 (We st Supp. 2009). Even if the KTM campa ign somehow violated g overnme nt code section 556.004(c) , they rea son, transporta tion code section 228

. 0 0 4’s 23Statu tory prohibit ions agai nst “l

obbying” by state agencies TURF al s o asser

ts that it stated a claim for violations of two provisions of
go v ernme nt code chapte r 556 that restric t lobby ing by state ag encie s. First, it relies u p o n t h e following prohibition in section 556.005:

A state ag ency may not use appropr iated money to employ , as a regular full-time or part-time or contra ct employ ee, a person who is r equire d by Chapter 305 to reg ister as a lobbyist.

Tex. Gov’t C ode Ann. § 556.005(a) (West 2004). The “Chapter 305” ref ere nced in the provisi on ref ers to chapte r 305 of the g overnme nt code, which require s that a person who rec eives a specifie d
amount of compensa tion for “communica t[ ing] direc tly with one or more members of the leg islative

or executive branc h to influence leg islation or administrative action” must reg ister and disclose his clients and amount of compensa tion. See id. § 305.003-.005 (West 2005 & Supp. 2009)

. Second, TURF r elies upon g overnme nt code se ction 556.006:

Sec. 556.006. L EGI SL ATI VE L OB BY I NG. (a) A state ag ency may not use appropr iated money to at t em p t t o influence the passag e or defe at of a leg islative measure .

specific authorization would control ov er the g ener al prohibition. See Tex. Gov’t Code Ann. § 311.026 (West 2005). Be cause we have conclude d that TURF has not stated a claim for violations of g overnme nt code section 5 5 6

. 0 04, we do not addre ss the implications of transporta tion code sec t i o n 2 2 8

. 004. For the same rea sons, we do not rea ch arg uments advanc ed by TURF that section 228.004 is unconstitutional. TURF al s o ar gues that section 228.004 is pree mpted by the Hatch Act. Whil e we need not re ac h t h e pree mption question, we addre ss TURF’ s stand-alone Hatch A ct claim below. 24(b) This section does not prohibit a state office r or employ ee fr o m u s i n g state

resources to provide public information or to provide information responsive to a reque st.

Id. § 556.006 (West 2004).

I n its live petition, TURF alleg es that “TxDOT has hired lobby is ts and openly lobbied local, s t at e, and fede ral officia ls in support of Tx DOT’s desire to toll exis ting fede ral interstate h i gh wa y s an d other tol ling init iatives that are not y et i n development.” TURF further pleads t hat “De fenda nts have directe d the ex penditure of public funds to lobby the Unit ed S tates C ong ress in favor of a policy of expanding toll roa ds and tolling exis ting interstate highw ay s.” TURF seeks to
restra in “any attempt to lobby any g overnme ntal unit or officia l in favor of any policy or leg islative

measure to expand or chang e toll road p o l i cy and/or any attempt to hire lobby ists require d to be
reg istered with the Te x as Ethics Commissi on under [chapte r] 305 of the [gover nment code].”
L ike TURF’ s alleg ations re gar d i ng the “political” purpose of the KTM campa ign, whether the ag ency has “lobbied” or “hire d” a “lobby ist” in any sense rele vant to se ctions 556.005

o r 556.006 depends on what those provisions mean and the specific conduct that is t h e b as i s for TURF’ s claims. As further elucidate d by the evidenc e on which it relies, TURF is complaining primarily about conduct by the Rodman Company in its outrea ch eff orts to audienc es in the TTC-69 study are a. Some of these eff orts wer e aimed at g aining support for the projec t from local officia ls, including at least one i n s t ance wher e there is evidenc e that a Rodman Company subcontrac tor

was involved in g arne ring a supportive formal resolution from a count y c o mm issioner ’s court. There was also evidenc e that the R odman C ompany provided “ Fe dera l Outrea ch” to “educa te audiences about issues of importance to [Tx DOT] and the succes s fu l i mplementation of Tx DOT’s

25fede ral leg islative ag enda.” I n TURF’ s view, these fac ts constitute violations of section 556.006’s

prohibition ag ainst Tx DOT’s using appropr iated money “to attempt to influence t h e p as s age

or defe at of a leg islative measure .” TURF also emphasizes evidenc e that the Rodman Company subcontrac ted with Gar

y Bushe ll, L .L .P. for communications and outrea ch to local officia ls and that Gar y Bushe ll, L .L .P., is reg istered under chapte r 305. This, T URF rea sons, c onstitut es a violation of section 556.005’s prohibition ag ainst using appropr iated money “to employ , as a regular full-time

or part-time or contra ct employ ee, a person who is require d by Chapter 305 to reg ister as a lobby ist.”

We do not rea ch these contentions beca use the evidenc e conclusively demonstrates that the Rodman Company ’s work in connec tion with the TTC -69 had ended by Marc h 2008. As previously ex p l ai ned, TURF’ s associational standing derive d from the taxpay er standing of its members is limit ed solely to challeng ing future or ong oing illega l expenditures. See Bland Indep. S ch

. Dist. , 34 S.W .3d at 556-58. Howeve r, TURF’ s justiciable interest in its claims— ev en i f meritorious—dissipated once the funds wer e sp en t

. S ee id. at 556. Consequently , TURF lacks standing to prosecute claims predic ated on the Rodman Company ’s ac tions.

TURF additionally relies on an aff idavit from an attendee at the Fe bruar y 1, 2008 “Eminent Domain SuperConfer ence ,” Hank Gilbert. Gilbert re co unted t hat appellees’ counsel of

rec ord “g ave a brief overvie w of all the eminent domain leg islation that had been prese nted during
t h e 8 0 t h Reg ular leg islative session,” including H.B

. 2006, which would have place d vario u s restric tions on the eminent domain power s of g overnme ntal units. Acc ording to Gilbert, counsel 1 5 “listed various portions of the bill that Tx DOT objected to,” “by her own admittance, she attended

H.B . 2006 passed both houses of the leg islature but was ve toed by the g overnor . 1 5 26a ‘closed door’ meeting on behalf of Tx DOT with other lobby ists,” and “wa s asking , on their behalf

(TxDOT), to include $100 milli on for the acc ess portion of HB 2006.” Howeve r, as with T URF’s

c o mp la in ts a b o ut th e Ro d

man Company ’s activities, TURF lacks standing to enjoin any expenditur e s for any activities by counsel that would have violated section 556.006, which would have occur red not later than Ma

y 2007. Finally , TURF relies on evidenc e that Tx DOT has long eng ag ed in fede ral leg islative advoca cy and continues to do so. This includes de position t estimony from a TxDOT officia l who acknow ledg ed that the ag ency has a fede ral leg islative ag enda and hired “consultant lobby i s t s” in Washington D.C. to h el p s eek fede ral funds and other favor able measure s from the Congr ess

or fede ral ag encie s. The officia ls respond in part th at s ec t i on 556.006’s lobby ing prohibition does not extend to fede ral legislation. They observe that section 751.005 of t he gover nment code

cre ates an age n cy , the Offic er of State-F eder al Relations (OSFR), that is authorized to advocate for fede ral leg islation on behalf of the Stat e. S ee T ex . Gov’t Code Ann. § 751.005(b)( 5)(C) (West S u p p. 2009). OSFR is further authorized to enter into interag ency contra cts with other
state ag encie s to locate staff o f t h e o t h er ag encie s in Washington D.C. to work under the OSFR direc tor’s supervision, and OSFR has done so with Tx DOT. Especia l l y i n l i ght of these leg islative authorizations for fede ral leg islative advoca cy , we ag ree that the leg islature did not intend section 556.006’s lobbying pr ohibition t o extend to federa l leg islation.

We conclude that TURF lacks standing to asser t its c la im s r e g a

r d in g g o v e r

n me n t c o d e sections 556.005 and 556.006 and, further , has not stated a claim of ultra vires conduct with respe ct to Tx DOT’s f

eder al leg islative advoca cy .

27Hatch Act Finally , in additi o n t o rely ing on the fore g oing prohibitions in chapte r 556 of the g overnme nt code, TURF asser ts that it has stated a claim that expenditures made in connec tion with the KTM campa ign violate provisions of the fede ral Hatch Act that extend to cer tain state and local g overnme nt e mploy ees. See 5 U.S.C.A. §§ 1501-08 (2007). Specifica lly , TURF relies upon

a prohibition ag ainst “a state or local office r or employ ee . . . direc tly or indirectly

. . . command[ing] or advis[ ing] a st ate or local o ff i ce r or employ ee to pay , lend, or contribute any thing of value to a political party , committee, org anization, ag ency or person for political purposes.” Id. § 1502(a) (2). As previously explained, the “political” activities and purposes that are restric ted by the Hatch Act have long been construed as limit ed to partisan political activit i es . See Letter Carriers , 413 U.S.
at 562; Bauers , 865 F.2d at 1523-24. There are no alleg ations or evidenc e of that sort of “political”
purpose or activity here

. Acc ording ly , TURF has not stated a cl ai m o f ac t ions ultra vires of the Hatch A ct and lac ks standing to a ssert its claims predicated on that provision.

Conclu sion regardin g TURF’s claim s Although the officia ls advanc e other g rounds for aff irming the dismiss al of TURF” s claims, we need not addre ss them. For the fore g oing rea sons, we hold that the district court did not

err in gr anting the offic ials’ plea to the jur isdiction. W e over rule TURF ’s first issue.

P roce dural is sues

I n its s econd issue, TURF arg ues that the district court abused its discretion in ref using to g rant it a second continuance of t he hearing on appellee s’ pl ea to the j urisdiction. We

28have previously summarized the proce dural history of this case , including the fac ts that the

district court had alre ady granted TURF one ninety -day continuance of the hear ing to conduct discovery —a postponement that ultimately exceede d five months—and that TURF had the opportunity to obtain sever al depositions from Tx DOT personne l and document discovery in the i nterim. Fur

thermore , the district court g rante d TURF leave afte r the hear ing to sup p l em en t t h e

rec ord with over one-hundr ed pag es of additional documentar y evidenc e. On this rec ord, we cannot conclude that the district court abused its discretion in denying TURF’ s second continuance motion.

TURF also complains that appellee s’ plea to the jurisdiction “dee ply implicates the merits of Appellant’s cause s of action” and that resolution of these issues turned on intent, motive, and cre dibilit y

—namely , whether

expenditures made in c onnection with the KTM campa ign wer e motivated by a “political purpose.” Consequently , TURF rea sons, it was an abuse of discretion for the district court to resolve those issues at the jurisdictional stag e. See Hende e , 228 S.W .3d at 369 ( “ [A ] tria l c o u

r t mu s t exercise sound discretion in deter mining whether a jurisdictional deter mi n a ti o n impacting the merits ‘should be made at a preliminary hear ing or awa it a fuller development of the

case . . . .’” (quoting Miranda ,133 S.W .3d at 227)). Howeve r, as we rece ntly explained, “[w] h i l e g enu i n e disputes over the exis tence of fac ts materia l to jurisdiction will prec lude dismiss al,

see Miranda , 133 S.W .3d at 227-28, the pure leg al questi on of whether pled a nd un-neg ated f

acts would establish

. . . ultra vi res conduct ca n—and must—be re solved to deter mine the t rial court’s jurisdiction, and this is true reg ardle ss of whether that issue para llels the merits.” Creedmoor-M aha W ater Supply Corp. , 307 S.W .3d at 516 (citing Hende e , 228 S.W .3d at 368-69); see also Miranda , 133 S

. W

. 3 d at 2 27 (empha siz ing that jurisdictional issues should be resolved “as soon as

29prac ticable” ). Her e, as we have detailed above, wh et h er T URF stated claims for violations of

g overnme nt code section 556.004(c) or the Hatch Act turns on a pure question of law—construc tion of “ political purpose” as used in those provisions—and was proper ly resolved by the district court in determining its subject-matter jurisdiction.

We overrule TURF’ s second issue.

CONCLUSION Having overr

uled both of TURF ’s issues, we a ffirm the district c ourt’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pember ton and Waldrop; Concurring Opinion by J ustice Patterson Affir med Filed: Aug ust 20, 2010

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