Regina Carson v. Blue Cross Blue Shield of Texas, Inc., a Division of Health Care Service Corporation, Anita C. Johnson, Yvonne Sternadel A/K/A Vonnie S., Laura M. McClelland, Lauren Collins Reeser, Jane Cordray, Jason Ramirez, Jennifer Tracey, Christopher Flinn, and Teacher Retirement System of Texas

Affirmed and Memorandum Opinion filed August 29, 2025.

In The

Fifteenth Court of Appeals

NO. 15-24-00108-CV

REGINA CARSON, Appellant

V.

BLUE CROSS BLUE SHIELD OF TEXAS, INC., A DIVISION OF HEALTH

CARE SERVICE CORPORATION, ANITA C. JOHNSON, YVONNE

STERNADEL A/K/A VONNIE S., LAURA M. MCCLELLAND, LAUREN

COLLINS REESER, JANE CORDRAY, JASON RAMIREZ, JENNIFER

TRACEY, CHRISTOPHER FLINN, AND TEACHER RETIREMENT

SYSTEM OF TEXAS, Appellees

On Appeal from the County Court at Law No. 5

Dallas County, Texas

Trial Court Cause No. CC-23-02212-E

MEMORANDUM OPINION

Appellant Regina Carson appeals the trial court’s order granting pleas to the

jurisdiction filed by Appellees Teacher Retirement System of Texas (TRS), Blue

Cross Blue Shield of Texas (BCBSTX), and Anita C. Johnson, Yvonne Sternadel,

Laura M. McClelland, Lauren Collins Reeser, Jane Cordray, Jason Ramirez, and

Jennifer Tracey (collectively, the Individual Defendants). In three issues Carson

challenges the trial court’s orders alleging the trial court (1) abused its discretion in

refusing to compel Appellees to produce the contract between TRS and BCBSTX;

(2) erred in granting BCBSTX’s plea to the jurisdiction without considering the

contract; and (3) erred in granting TRS’s plea to the jurisdiction without considering

the contract and Carson’s entitlement to judicial review of her claim.

Reviewing the jurisdictional allegations, taking them as true, and construing

them in favor of Carson, we conclude that Carson’s petition does not present a claim

for which sovereign immunity is waived, and affirm the trial court’s orders granting

the pleas to the jurisdiction.

BACKGROUND

I. The Allegations

Carson, a public school teacher, scheduled mastopexy surgery in March 2021.

Carson was insured through the public school system under the TRS ActiveCare

Plan (the Plan), which is administered by BCBSTX. The Plan is funded exclusively

by the Texas School Employees Uniform Group Coverage Trust Fund, which is a

trust established by the State. See Tex. Ins. Code §§ 1579.051, .251–.303. Carson’s

chosen in-network surgeon was not authorized by BCBSTX until the day after

Carson’s surgery was scheduled. As a result Carson was unable to reschedule with

the in-network surgeon and chose another out-of-network surgeon who required an

upfront payment of $45,800 and would not submit an insurance claim on Carson’s

behalf.

Carson began the process of obtaining pre-approval of the out-of-network

surgeon, communicating with the BCBSTX employees whom she later named as

Individual Defendants. Carson’s pleading acknowledged that the second surgeon

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was considered out of network and that a BCBSTX employee had informed her that

the surgery would not be covered at the same level as an in-network surgeon. Carson

alleged she obtained pre-authorization and proceeded with surgery. When Carson

submitted her claim, she alleged it was “returned/rejected.” Carson contacted

BCBSTX and was advised by an individual she identified as “Lori”1 to resubmit the

claim with certain medical codes. After communicating with several BCBSTX

employees, Carson’s claim was denied, and she submitted an appeal. Carson alleged

she eventually learned that her appeal had been denied. TRS and BCBSTX dispute

Carson’s assertion that her claim was denied. In initial disclosures served on Carson,

BCBSTX averred that it “paid benefits in accordance with [Carson]’s health benefits

plan based on the services performed by an out-of-network provider.”

Carson subsequently filed suit against TRS, BCBSTX, and the Individual

Defendants asserting claims against BCBSTX and the Individual Defendants for

negligent misrepresentation, violations of the Insurance Code and Deceptive Trade

Practices Act, and estoppel. Carson also asserted a claim for declaratory relief

against TRS and BCBSTX under the Uniform Declaratory Judgments Act (UDJA).

Carson sought damages in addition to attorney’s fees on her declaratory-judgment

claim. All of Carson’s claims concern the handling of her insurance claim for the

2021 surgery.

II. Pleas to the Jurisdiction

TRS filed a plea to the jurisdiction in which it alleged Carson failed to plead

any facts that demonstrate a waiver of sovereign immunity. TRS alleged that Carson

did not plead any waiver of immunity that would permit her declaratory-judgment

claims to proceed. BCBSTX and the Individual Defendants filed a plea to the

1

Carson alleged that “Lori” was either Appellee Lauren Collins Reeser or Appellee Laura

M. McClelland.

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jurisdiction in which they asserted derivative sovereign immunity.

Carson responded asserting that BCBSTX and the Individual Defendants were

not protected by sovereign immunity because BCBSTX acted independently of TRS,

exercising discretion in determining whether claims would be paid, and was not

merely an administrator of the TRS Plan. Carson relied on the Benefits Booklets

BCBSTX attached to its plea and argued that the booklets reflected BCBSTX

exercised independent discretion to operate, control, and create the Plan.

Carson asserted TRS was not protected by sovereign immunity because the

UDJA and the Administrative Procedure Act (APA) waived TRS’s sovereign

immunity. Specifically, Carson argued she was not seeking damages from TRS, and

Section 37.004(a) of the UDJA waived TRS’s immunity regarding Carson’s rights

and remedies associated with the contract or agreement between TRS and BCBSTX.

See Tex. Civ. Prac. & Rem. Code § 37.004(a). Carson further asserted she was

entitled to judicial review pursuant to Section 2001.171 of the APA because TRS is

a state agency, and the denial of her claims constituted an appealable final decision.

See Tex. Gov’t Code § 2001.171.

Finally, Carson argued the trial court should not decide the pleas to the

jurisdiction without first reviewing the contract between TRS and BCBSTX.

III. Motion to Compel

In the meantime, Carson filed a motion to compel discovery from TRS of,

among other things, the contract between TRS and BCBSTX “relating to the

handling, adjusting, determining, paying, rejecting, and deciding claims for those

submitted by Plaintiff which are the subject of this lawsuit.” At a hearing on the

motion to compel Carson argued that discovery of the contract between the parties

was necessary to inform the jurisdictional issue. Carson argued that the evidence

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attached to the parties’ jurisdictional pleas was insufficient to determine whether

BCBSTX was entitled to derivative sovereign immunity as the Plan administrator.

TRS stated it would be amenable to producing the contract with a sufficient

protective order in place to protect confidential information. Carson responded

asking the court to compel TRS to “produce the contract under a confidentiality order

. . . . Otherwise, the Court can decide both motions as they are.” The trial court

concluded the hearing by granting leave for TRS and BCBSTX to file replies to

Carson’s response to the jurisdictional pleas and encouraging the parties to confer

and agree on production of a redacted contract. The trial court did not rule on

Carson’s motion to compel.

The trial court subsequently granted both pleas to the jurisdiction and

dismissed Carson’s claims with prejudice. This appeal followed.

ANALYSIS

In three issues Carson asserts the trial court (1) abused its discretion in

refusing to compel Appellees to produce the contract between TRS and BCBSTX;

(2) erred in granting BCBSTX’s and the Individual Defendants’ pleas to the

jurisdiction; and (3) erred in granting TRS’s plea to the jurisdiction.

I. Standard of Review

Whether a trial court has jurisdiction is a question of law subject to de novo

review. See Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855

(Tex. 2002). A plea to the jurisdiction can take two forms: (1) a challenge to the

sufficiency of the plaintiff’s pleadings regarding the allegations of jurisdictional

facts, or (2) an evidentiary challenge to the existence of jurisdictional facts. Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Thus, the

plea may challenge the pleadings, the existence of jurisdictional facts, or both.

5

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

When considering a plea to the jurisdiction, our analysis begins with the live

pleadings. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). We first

determine if the pleader has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the case. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). In doing so, we construe the pleadings liberally in favor of the

plaintiff, and unless challenged with evidence, we accept all allegations as true. Id.

at 226–27. The plea must be granted if the plaintiff’s pleadings affirmatively negate

the existence of jurisdiction or if the defendant presents undisputed evidence that

negates the existence of the court’s jurisdiction. Heckman, 369 S.W.3d at 150.

When “the plea challenges the existence of jurisdictional facts, we must move

beyond the pleadings and consider evidence when necessary to resolve the

jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction

and the merits of a claim.” Alamo Heights, 544 S.W.3d at 770–71. When a

“jurisdictional challenge implicates the merits of the [plaintiff’s] cause of action and

the plea to the jurisdiction includes evidence, the trial court reviews the relevant

evidence to determine if a fact issue exists.” Miranda, 133 S.W.3d at 227. In other

words, in those circumstances, the standard of review “generally mirrors that of a

summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228.

Initially, the defendant carries the burden to meet the summary judgment proof

standard for its assertion that the trial court lacks jurisdiction. Garcia, 372 S.W.3d

at 635. If the defendant meets that burden, the plaintiff is then required to show that

a disputed material fact exists regarding the jurisdictional issue. Id. The evidence is

reviewed in the light most favorable to the nonmovant to determine whether a

genuine issue of material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d

544, 550 (Tex. 2019). If the evidence creates a fact question regarding the

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jurisdictional issue, the trial court may not grant the plea, and the fact issue will be

resolved at trial by the fact finder. Miranda, 133 S.W.3d at 227–28. “However, if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of

law.” Id. at 228.

II. Sovereign Immunity

Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State, its agencies, and its political subdivisions from lawsuits and

liability for money damages. Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371,

374 (Tex. 2006). The State’s political subdivisions, which include agencies such as

TRS, are afforded the same immunity protections as the State. Mission Consol.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).

Sovereign immunity embraces two concepts: immunity from suit and

immunity from liability. Reata, 197 S.W.3d at 374; Tooke v. City of Mexia, 197

S.W.3d 325, 332 (Tex. 2006). Sovereign immunity deprives a trial court of subject

matter jurisdiction for actions in which certain governmental units have been sued

unless the unit has expressly consented to suit. Reata, 197 S.W.3d at 374; Miranda,

133 S.W.3d at 224; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.

2003). Because immunity from suit defeats a trial court’s subject matter jurisdiction,

it is properly raised in a plea to the jurisdiction. Dohlen v. City of San Antonio, 643

S.W.3d 387, 392 (Tex. 2022). In this case TRS, BCBSTX, and the Individual

Defendants asserted immunity from suit.

By challenging a governmental unit’s assertion of immunity, a plaintiff

generally overcomes a governmental unit’s immunity defense by demonstrating that

the Legislature has clearly and unambiguously waived immunity. Rattray v. City of

Brownsville, 662 S.W.3d 860, 865 (Tex. 2023). Without such a waiver, the trial court

7

lacks subject matter jurisdiction to proceed, and the causes of action alleged against

the governmental unit are barred. Id. Accordingly, the trial court must dismiss the

suit if the plaintiff cannot satisfy the burden of affirmatively demonstrating the trial

court’s subject matter jurisdiction to hear and decide the case by showing that the

causes of action asserted by the plaintiff fall within a statutory waiver of immunity.

Id.

Sovereign immunity may also apply and extend to protect private companies

who contract with the State or other governmental entities under certain

circumstances. Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 124 (Tex.

2015); see Foster v. Tchr. Ret. Sys., 273 S.W.3d 883, 889–90 (Tex. App.—Austin

2008, no pet.) (extending immunity to Aetna for claims that arose from the denial of

health coverage based on the relationship between the state agency and Aetna, who

was the administrator of the state agency’s health plan). Thus, under the principle of

derivative sovereign immunity, a private company that acts on behalf of a

governmental entity may be protected from liability and suit unless (1) the

Legislature has expressly and unambiguously waived, as to a plaintiff’s asserted

causes of action, the immunity of the governmental entity that the private company

has contracted with or (2) the private company’s actions on behalf of a governmental

entity do not support an extension of immunity. See Olivares, 461 S.W.3d at 124–

28 (discussing extension of sovereign immunity to private parties); Foster, 273

S.W.3d at 889–90; see also Chambers-Liberty Cntys. Navigation Dist. v. State, 575

S.W.3d 339, 344 (Tex. 2019). In this case, the parties do not argue an express waiver

by the Legislature; Carson asserts BCBSTX’s actions on behalf of TRS do not

support an extension of immunity to BCBSTX and its employees. With those

principles in mind, we address Carson’s issues on appeal.

8

III. Carson did not Preserve Error on the Issue of Production of the

Agreement Between TRS and BCBSTX.

In Carson’s first issue she asserts the trial court abused its discretion in failing

to grant her motion to compel production because (1) TRS’s use of general

objections are no objections at all; (2) TRS presented no evidence to support its

objections; (3) TRS did not seek a protective order; (4) TRS admitted the requests

were relevant to jurisdiction; and (5) the requests included agreements and contracts

between TRS and BCBSTX that are relevant to the question of jurisdiction.

In the trial court Carson sought production of several documents from TRS

including:

A true and correct copy of any contract, agreement, or understanding

between BCBS and TRS relating to the handling, adjusting,

determining, paying, rejecting, and deciding claims for those submitted

by Plaintiff which are the subject of this lawsuit.

When TRS did not produce certain documents, including the contract between

BCBSTX and TRS, Carson moved to compel TRS to produce the requested

documents. The record does not reflect any request by Carson that BCBSTX produce

the agreement.

The trial court held a hearing on Carson’s motion to compel but did not rule

on the motion. In response to TRS’s request for confidentiality in certain matters,

Carson asked the court to compel TRS to produce the contract under a confidentiality

order, or “decide both motions as they are.” The trial court encouraged the parties to

cooperate in reaching an agreed protective order, but did not rule on the motion to

compel.

Contrary to Carson’s arguments on appeal, the trial court did not grant or deny

the motion to compel production of the documents. After the hearing on the motion

to compel, the parties engaged in a protracted letter writing campaign in which they

9

demonstrated their efforts and eventual unsuccess in agreeing on a protective order

that would have allowed production of the contract. Carson did not pursue a ruling

on the motion to compel or object to the trial court’s failure to rule.

To preserve error on a discovery dispute, the complaining party must obtain a

ruling from the trial court on the discovery matter. Gespa Nicar., S.A. v. Recom AG,

705 S.W.3d 362, 380 (Tex. App.—El Paso 2024, pet. denied); Peters v. Volkswagen

Group of Am., Inc., No. 01-21-00634-CV, 2023 WL 5436383, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 24, 2023, pet. denied) (mem. op.). To preserve a complaint

on appeal, Rule 33.1 of the Rules of Appellate Procedure requires the record to show

that a specific complaint was made to the trial court by a timely request, objection,

or motion, and that the trial court ruled on that request, objection, or motion. Tex. R.

App. P. 33.1(a).

Because Carson did not secure a ruling on her motion to compel, she failed to

preserve error for appeal. See Tex. R. Civ. P. 215.1(b); In re Marriage of Bivins, 393

S.W.3d 893, 902 (Tex. App.—Waco 2012, pet. denied) (“Where there are objections

to discovery, the party seeking discovery can either file a Motion to Compel or seek

a ruling on [the] objections.”); see also Christiansen v. Prezelski, 782 S.W.2d 842,

843 (Tex. 1990) (“The burden is on the appellant to see that a sufficient record is

presented to show error requiring reversal.”). We overrule Carson’s first issue.

IV. The Trial Court did not Err in Granting TRS’s Plea to the Jurisdiction.

In Carson’s second issue she challenges the trial court’s ruling on the pleas to

the jurisdiction filed by TRS, BCBSTX, and the Individual Defendants. We address

each defendant in turn beginning with TRS.

TRS filed a plea to the jurisdiction in which it alleged Carson failed to plead

any facts that demonstrate waiver of sovereign immunity and would be unable to

plead facts to demonstrate jurisdiction over TRS if given the opportunity to replead.

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TRS as a state agency is a public entity entitled to sovereign immunity. See Tex.

Gov’t Code § 821.003; Foster, 273 S.W.3d at 887. Immunity from suit bars a suit

against TRS, a state agency, unless the Legislature expressly consents to the suit.

See Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002). Carson argues she established a waiver of immunity through the UDJA and

the APA.

A. Declaratory Judgment Claim

Carson first argues that TRS’s immunity was waived under the UDJA, which

permits a plaintiff to seek “relief regarding interpretation or application of a statute,

ordinance, or contract.” See Tex. Civ. Prac. & Rem. Code § 37.004 (“A person . . .

whose rights, status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any question of construction

or validity arising under the instrument, statute, ordinance, contract, or franchise and

obtain a declaration of rights, status, or other legal relations thereunder.”). Carson

asserted a claim against TRS for declaratory judgment seeking declarations that,

among other things, her insurance claim was covered and should have been paid by

the Plan. Carson bore the burden to plead facts that affirmatively demonstrated a

valid waiver of immunity. See Matzen v. McLane, 659 S.W.3d 381, 394 (Tex. 2021).

The UDJA, however, “does not contain a general waiver of sovereign immunity; it

provides only a limited waiver for challenges to the validity of an ordinance or

statute.” Morath v. Kingsville Indep. Sch. Dist., 710 S.W.3d 918, 929 (Tex. App.—

15 Dist. 2025, no pet.) (internal quotations omitted). “Claims for ‘other types of

declaratory relief are barred absent a legislative waiver of immunity with respect to

the underlying action.’” State v. Zurawski, 690 S.W.3d 644, 660–61 (Tex. 2024)

(quoting Town of Shady Shores, 590 S.W.3d at 553). Carson does not challenge the

validity of a statute or ordinance, but asserts TRS erred in denying her insurance

11

claim. Accordingly, her pleading under the UDJA is insufficient to waive immunity.

B. Administrative Procedure Act

Next, Carson asserts TRS’s immunity was waived by the APA. See Tex. Gov’t

Code § 2001.171. The APA provides that “[a] person who has exhausted all

administrative remedies available within a state agency and who is aggrieved by a

final decision in a contested case is entitled to judicial review under this chapter.”

Id. A contested case is a proceeding “in which the legal rights, duties, or privileges

of a party are to be determined by a state agency after an opportunity for adjudicative

hearing.” Id. § 2001.003(1). The APA creates a right to judicial review for those who

satisfy the statute’s threshold requirements, but does not create an inherent right to

judicial review. See Tex. Dep’t of Protective & Regul. Servs. v. Mega Child Care,

Inc., 145 S.W.3d 170, 172, 196 (Tex. 2004). The APA provides “a limited waiver of

sovereign immunity” in suits for judicial review if certain statutory prerequisites to

suit are satisfied. Id. at 198.

Generally, if the Legislature assigns exclusive or original jurisdiction to an

administrative body, then no right to judicial review exists. Tex. Disposal Sys.

Landfill, Inc. v. Travis Cent. Appraisal Dist. by & through Crigler, 694 S.W.3d 752,

757–58 (Tex. 2024). In those circumstances, a right to judicial review only exists if

“a statute provides a right” or “the order adversely affects a vested property right or

otherwise violates a constitutional right.” Id. (quoting Cont’l Cas. Ins. Co. v.

Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000)). Moreover, even

if a statute provides a right to judicial review, the court only acquires jurisdiction

when the claimant exhausts all administrative remedies under the statute. Id. A

statutory prerequisite to suit is jurisdictional. Tex. Gov’t Code § 311.034.

The APA provides a waiver of immunity as to suits for judicial review from

“a final decision in a contested case.” Tex. Gov’t Code § 2001.171. Relying on the

12

Texas Administrative Code, Carson asserts the APA provides an independent

avenue for judicial review of her insurance claim. See 34 Tex. Admin. Code § 41.50.

Therefore, assuming without deciding that the APA otherwise applies to a decision

under Section 41.50 of the Administrative Code, to establish a waiver of sovereign

immunity under the APA, Carson must show that all internal agency review

procedures have been exhausted and that a contested case hearing has been held. See

Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) (when an administrative body

has exclusive jurisdiction to make the initial determination in a dispute, a party must

exhaust all administrative remedies before seeking judicial review of the decision).

Carson, however, did not assert a claim under the APA in her live pleading in

the trial court. The only claim Carson asserted against TRS was for declaratory

judgment. Carson did not raise the APA as a waiver of sovereign immunity until her

response to TRS’s plea to the jurisdiction. Carson’s petition, not her response to the

plea to the jurisdiction, defined the issues before the trial court in reviewing whether

sovereign immunity applied. See Murray v. O & A Express, Inc., 630 S.W.2d 633,

636 (Tex. 1982) (“The office of pleadings is to define the issues at trial.”). As the

claimant, Carson bears the burden of pleading facts affirmatively demonstrating that

a waiver of sovereign immunity applies. See Matzen, 659 S.W.3d at 388–89.

Carson asserted for the first time in response to the plea to the jurisdiction,

that TRS falls within the scope of the APA’s waiver of immunity because TRS is a

state agency that has exclusive jurisdiction to review the denials of TRS-ActiveCare

claims, and the denial of her claims was a final decision under the APA. However,

Carson’s live pleading does not assert a claim for judicial review under the APA.

Carson failed to plead facts that affirmatively demonstrate that the waiver or

exception of judicial review under the APA apply. See Miranda, 133 S.W.3d at 226

(requiring plaintiff’s pleadings to affirmatively demonstrate that sovereign

13

immunity either does not apply or has been waived).

V. The Trial Court did not Err in Granting BCBSTX’s Plea to the

Jurisdiction.

Carson asserts the trial court erred in granting the plea to the jurisdiction filed

by BCBSTX because (1) evidence attached to the plea is inadmissible; and (2)

BCBSTX is an independent and private contractor.

As the administrator of TRS’s Plan, BCBSTX asserts it is also immune under

the principle of derivative sovereign immunity. A private company, such as

BCBSTX, operating as a third-party administrator to an insurance program that is

funded by the State, such as TRS, is entitled to sovereign immunity like the

governmental entity for which it contracts. Bellamy v. Allegiance Benefit Plan

Mgmt., Inc., 696 S.W.3d 751, 767–68 (Tex. App.—Eastland 2024, no pet.) (holding

Allegiance was entitled to derivative immunity as the plan administrator for a City

run insurance plan); see also Foster, 273 S.W.3d at 885–90 (extending immunity to

Aetna as a third-party administrator of a TRS plan); see also McAllen Anesthesia

Consultants, P.A. v. United Healthcare Servs., Inc., No. 7:14-CV-913, 2015 WL

9257154, at *8 (S.D. Tex. Dec. 14, 2015) (extending immunity to the third-party

administrator of the Employees Retirement System of Texas’s (ERS) health

insurance plan because final decisions on benefit payments rested with ERS). Courts

have held that the governmental unit’s immunity protections extend to, and may be

asserted by, the third-party administrator that is retained to supervise the unit’s

insurance plan. Id. A third-party administrator’s entitlement to immunity is derived

from the governmental unit’s assertion of immunity. Bellamy, 696 S.W.3d at 764.

The facts and analysis in this case are similar to those in Foster. In Foster, a

retired teacher sued TRS and Aetna, a private company retained by TRS to act in the

capacity as the administer of TRS’s insurance plan, for breach of contract, breach of

14

the duty of good faith and fair dealing, violations of the Insurance Code, and

violations of the Deceptive Trade Practices Act, after Aetna denied the retired

teacher’s claim for health benefits. See Foster, 273 S.W.3d at 885, 889. The Third

Court of Appeals concluded that the Legislature had not waived TRS’s immunity

from the retired teacher’s suit. Id. at 887. The court, in considering whether Aetna,

as a private entity, was entitled to derivative sovereign immunity, held that Aetna

was immune from suit because “Aetna simply provide[d] administrative services to

facilitate the provision of health care to [covered] retirees.” Id. at 888–90.

In concluding that Aetna had derivative immunity as a third-party plan

administrator, the court in Foster relied on evidence that the insurance plan was fully

funded by the state such that Aetna had no stake in a claim’s approval or denial, TRS

set the terms of the plan, Aetna acted as an agent of and in a fiduciary capacity for

TRS, and TRS agreed to indemnify Aetna for any obligations arising out of its good-

faith performance. Id.; see also Olivares, 461 S.W.3d at 127 (discussing Foster).

Additionally, the Foster court stated that “[t]o hold otherwise would implicate State

funds and expose Aetna to liability from which its principal is protected and, more

importantly, would undercut the public policy that favors allowing the State to

contract with private entities to more efficiently provide services to government

employees.” Foster, 273 S.W.3d at 890.

In determining whether BCBSTX is entitled to derivative sovereign

immunity, we look to Carson’s pleadings for facts that affirmatively demonstrate the

trial court’s jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993). In Carson’s pleadings, she asserted multiple claims against

BCBSTX and the Individual Defendants, all of which arise from the denial of her

healthcare claim she alleges should have been covered by the TRS Plan. Carson

alleged that the Plan was not administered or overseen by TRS, or, in the alternative,

15

that BCBSTX is a plan administrator with full authority to decide claims and

coverage.

In support of its jurisdictional plea BCBSTX attached the declaration of Steve

K. Alexander, a senior account executive, and benefits booklets describing benefits

offered by the TRS Plan. Alexander averred that Carson was a beneficiary of the

TRS Plan and that the booklets addressed benefits available to her in 2021 when her

surgery was performed. Alexander confirmed that the benefits booklets stated that

BCBSTX was not the insurer, but merely a claims administrator and that TRS was

ultimately responsible for paying benefits under the Plan. Alexander further averred

that the Individual Defendants were acting in the scope of their employment in

communicating with Carson regarding her claim.

In response, Carson asserted that BCBSTX was not entitled to derivative

sovereign immunity because it is a private entity that exercises independent

discretion regarding the TRS Plan. Carson did not attach evidence to her response.

Carson attempts to distinguish Foster and other authority relied on by BCBSTX by

arguing that BCBSTX was not a third-party administrator of the Plan. Because both

parties challenged jurisdictional facts in the trial court, we examine the jurisdictional

facts and evidence to determine whether BCBSTX is entitled to derivative sovereign

immunity. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)

(“[B]ecause a court must not act without determining that it has subject-matter

jurisdiction to do so, it should hear evidence as necessary to determine the issue

before proceeding with the case.”).

The question that we must address on this point is whether the facts and

allegations recited in Carson’s pleadings, when taken as true and construed liberally

in her favor, necessarily demonstrate that BCBSTX, as the Plan administrator, is

shielded and protected from suit by TRS’s sovereign immunity like the third-party

16

administrator was in Foster. See Foster, 273 S.W.3d at 888–90.

The record before us shows that (1) BCBSTX “assumed only the authority

and discretion as given by the employer to interpret the plan provisions and benefit

determinations”; (2) BCBSTX and TRS entered into an Administrative Services

Agreement; and (3) BCBSTX, in its role as Claims Administrator, did not “assume

any financial risk or obligation with respect to claims.” Any recovery Carson may

be entitled to would be paid from the State treasury by TRS; it would not be paid by

the private entity, BCBSTX.

We conclude that the evidence attached to BCBSTX’s jurisdictional plea

establishes BCBSTX as the third-party administrator of the TRS Plan. BCBSTX’s

role and authority in administering the Plan is analogous to and consistent with

circumstances where courts have extended the protections of sovereign immunity to

a private entity who acts in the capacity as an administrator for a governmental unit.

See Stegall v. TML Multistate Intergovernmental Emp. Benefits Pool, Inc., No. 05-

18-00239-CV, 2019 WL 4855226, at *5 (Tex. App.—Dallas Oct. 2, 2019, no pet.)

(mem. op.) (extending immunity to UMR, Inc. as an administrator for the TML

Multistate Intergovernmental Employee Benefits Pool’s intergovernmental self-

insurance risk pool); United Healthcare Choice Plus Plan for City of Austin Emps.

v. Lesniak, No. 03-15-00309-CV, 2015 WL 7951630, at *2–3 (Tex. App.—Austin

Dec. 1, 2015, pet. denied) (mem. op.) (extending immunity to United HealthCare

Services as an administrator of the City’s self-funded health plan); Foster, 273

S.W.3d at 889–90. Thus, because BCBSTX is a third-party administrator of TRS’s

Plan, we conclude that BCBSTX is afforded the same protections of sovereign

immunity that TRS enjoys and is immune from the suit and claims that Carson has

asserted against it. See Foster, 273 S.W.3d at 890.

Carson presents two arguments asserting BCBSTX is not entitled to derivative

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sovereign immunity. Carson argues that (1) Alexander’s declaration is not

admissible; and (2) BCBSTX failed to produce its agreement with TRS. We address

each challenge in turn.

A. Admissibility of Declaration

First, Carson argues Alexander’s declaration is inadmissible because it uses

the term, “to the best of my knowledge.” Carson concedes she did not object to the

declaration in the trial court, but argues this is a substantive defect that cannot be

waived by failure to object. Carson further argues that Alexander’s declaration

contains several conclusory statements concerning whether the Individual

Defendants acted within the scope of their employment. Finally, Carson challenges

Alexander’s authentication of the benefits booklets attached to BCBSTX’s plea.

When reviewing objections to affidavits or declarations, we apply different

preservation rules to defects in the form and the substance of an affidavit or

declaration. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (per

curiam) (holding that in the context of summary judgment affidavits a defect in

“form” cannot provide grounds for reversal unless the party timely objects and

obtains a ruling). Defects in substance are “those that leave the evidence legally

insufficient” and may be raised for the first time on appeal despite party’s failure to

object or the trial court’s failure to rule on the objections. Stone v. Midland

Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.).

A defect in form of an affidavit must be objected to in the trial court, and the failure

to obtain a ruling waives the objection on appeal. FieldTurf USA, Inc. v. Pleasant

Grove Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022).

Complaints that a declarant was not testifying to personal knowledge or was

not competent to testify are objections to defects in form and are therefore waived

for failure to object or to obtain a ruling. See Grand Prairie Indep. Sch. Dist. v.

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Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). Similarly, a defect in a declaration or

affidavit attempting to authenticate an attached document is waived by failure to

object in the trial court. Medic Pharmacy, LLC v. AVK Properties, LLC, No. 01-21-

00447-CV, 2022 WL 2347923, at *6 (Tex. App.—Houston [1st Dist.] June 30, 2022,

no pet.) (mem. op.). Carson’s objections to defects of form, raised for the first time

on appeal, are therefore waived. See Tex. R. App. P. 33.1(a); Seim, 551 S.W.3d at

164.

An objection that an affidavit is conclusory, however, raises a defect of

substance, which can be raised for the first time on appeal. Nationwide Coin &

Bullion Reserve, Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.—Houston [14th

Dist.] 2020, pet. denied). A conclusory statement is one that expresses a factual

inference without providing underlying facts to support that conclusion. See Arkoma

Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex.

2008).

Alexander’s declaration is not conclusory and therefore can be considered as

evidence to support the trial court’s jurisdictional ruling. Appellant contends that

Alexander’s statements about the Individual Defendants acting within the scope of

their employment is conclusory. Alexander stated in his declaration that his

statements were based on personal review of documents and data, which provide

sufficient foundation for his declaration that the Individual Defendants were within

the scope of their employment. See id. (citing Black’s Law Dictionary definition of

“conclusory” as “[e]xpressing a factual inference without stating the underlying facts

on which the inference is based.”).

B. Production of the Agreement

As to production of the agreement between BCBSTX and TRS we addressed

Carson’s attempts to obtain the agreement in discovery in Section III above. It is

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undisputed that Carson did not offer the agreement and that it was her burden to

present evidence in support of jurisdiction. See Tex. Dep’t of Crim. Just. v. Rangel,

595 S.W.3d 198, 205 (Tex. 2020) (plaintiff bears the burden to allege facts that

affirmatively demonstrate the trial court’s subject-matter jurisdiction).

Citing authority from federal district courts Carson argues that by failing to

make the agreement part of its evidentiary proof, BCBSTX failed to meet its burden

to establish derivative immunity. See ER Addison LLC, 2024 WL 3513466, at *8;

Piney Woods, 2022 WL 4004790, at *12; contra Kirby v. Health Care Serv. Corp.,

88 F. Supp. 3d 717, 721, 723 (W.D. Tex. 2015) (dismissing TRS claims against

BCBSTX). Carson’s assertion runs counter to the “foundational rule” in all

sovereign immunity cases that the plaintiff “bears the burden of affirmatively

showing waiver of immunity.” City of Austin v. Powell, 704 S.W.3d 437, 447 (Tex.

2024) (quoting City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022)).

Carson did not produce the agreement or pursue a ruling on her motion to compel

the agreement.

Addressing the authority raised by Carson, not only are we not bound by those

decisions, 2 they depended on review of the contracts between the entities, which

Carson has not produced. In ER Addison, the district court reviewed the contract

between emergency centers and BCBSTX and rejected BCBSTX’s claim of

immunity because an indemnity clause in the agreement reflected that TRS would

not be responsible for BCBSTX’s debts and obligations. ER Addison, 2024 WL

3513466, at *8. In Piney Woods, the district court declined to review BCBSTX’s

claim of immunity without reviewing the contract. Piney Woods, 2022 WL 4004790,

2

See In re Morgan Stanley & Co., 293 S.W.3d 182, 189–90 (Tex. 2009) (“While Texas

courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state

court, in determining the appropriate federal rule of decision, they are obligated to follow only

higher Texas courts and the United States Supreme Court.”).

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at *12. We conclude the trial court did not err in granting BCBSTX’s plea to the

jurisdiction.

VI. The Trial Court did not Err in Granting the Individual Defendants’ Plea

to the Jurisdiction.

Carson asserted claims against the Individual Defendants for negligent

misrepresentation, violations of the Insurance Code and Deceptive Trade Practices

Act, and estoppel. With the exception of her claim under the UDJA, Carson did not

distinguish between conduct attributable to the Individual Defendants and to

BCBSTX, referring to the employees and BCBSTX collectively as “the BCBS

Defendants.” In their plea to the jurisdiction the Individual Defendants asserted they

were entitled to sovereign immunity because they were acting in the scope of their

employment with BCBSTX. We agree.

A suit against state officials in their official capacity is not a suit against the

officials personally, for the real party in interest is the entity. Tex. A & M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). The employees sued in their official

capacity enjoy the same derivative sovereign immunity as BCBSTX. Id. Carson’s

petition does not specify whether the Individual Defendants were sued in their

official capacities, but Carson’s allegations against the Individual Defendants arise

from their employment with BCBSTX. Generally, when a plaintiff sues government

officials and employees, but does not indicate whether the employees are sued in

their official or individual capacity, they are sued in their official capacity. See Univ.

of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex. 2011)

(suit against government officers is in effect suit against state itself); Garcia, 253

S.W.3d at 657 (plaintiff must decide at outset whether governmental employee acted

independently and is solely liable, or if he acted within general scope of his or her

employment such that governmental unit is vicariously liable); Tex. Civ. Prac. &

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Rem. Code § 101.106(f) (“If a suit is filed against an employee of a governmental

unit based on conduct within the general scope of that employee’s employment . . .

the suit is considered to be against the employee in the employee’s official capacity

only.”).

Carson does not dispute that the Individual Defendants were sued in any other

capacity than their official capacity. Instead, she asserts the Individual Defendants

are not immune because they engaged in ultra vires conduct. To fall within this ultra

vires exception, a suit “must allege, and ultimately prove, that the officer acted

without legal authority or failed to perform a purely ministerial act.” See City of El

Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009); see also Hall v. McRaven, 508

S.W.3d 232, 240–41 (Tex. 2017). “[A]ctions taken ‘without legal authority’ ha[ve]

two fundamental components: (1) authority giving the official some (but not

absolute) discretion to act and (2) conduct outside of that authority.” McRaven, 508

S.W.3d at 239.

Each of Carson’s claims against the Individual Defendants is rooted in the

alleged denial of her insurance claim. Carson has not alleged that the Individual

Defendants were acting without legal authority or failing to perform a purely

ministerial act. Moreover, ultra vires claims may only seek prospective injunctive

remedies. Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 348

(Tex. 2019). If an injury has already happened and the only plausible remedy is

monetary damages, an ultra vires claim will not lie. City of Houston v. Houston Mun.

Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018). Carson has not asserted a

valid ultra vires claim for prospective injunctive relief against the Individual

Defendants. The Individual Defendants, therefore, enjoy the same derivative

sovereign immunity as BCBSTX. See Koseoglu, 233 S.W.3d at 844; Foster, 273

S.W.3d at 890. The trial court did not err in granting the Individual Defendants’ plea

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to the jurisdiction.

Having concluded the trial court did not err in granting the pleas to the

jurisdiction filed by TRS, BCBSTX, and the Individual Defendants, we overrule

Carson’s second and third issues.

VII. The Trial Court did not Err in Ordering Dismissal with Prejudice.

In Carson’s third issue, she asserts that the trial court erred in dismissing her

claims with prejudice to refiling and asks this court to modify the trial court’s

dismissal order to reflect that dismissal is without prejudice, which would allow

Carson the opportunity to replead. Specifically, Carson requests the opportunity to

file an amended petition “with declaratory claims to clarify TRS’s authority

including assigning some or all of its duties and obligations to BCBSTX by contract,

as well as claims related to statutory and policy interpretation under Chapter 1579

of the Texas Insurance Code, 34 Tex. Admin. Code § 41.50, and Section 2001.171.”

Carson further argues she should be entitled to replead to continue her efforts to

obtain the agreement between TRS and BCBSTX.

When upholding a plea to the jurisdiction on sovereign immunity grounds, we

give the plaintiff an opportunity to replead if the defect can be cured. Tex. Dep’t of

Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011). When a plaintiff fails to plead

facts sufficient to overcome sovereign immunity, courts generally should afford the

plaintiff the opportunity to replead unless the pleadings affirmatively negate the

existence of jurisdiction. Fraley v. Tex. A & M Univ. Sys., 664 S.W.3d 91, 101 (Tex.

2023). But when a governmental entity asserts immunity and the plaintiff fails to

allege or show facts demonstrating a waiver of immunity after having a reasonable

opportunity to conduct discovery directed to the issue, the suit is appropriately

dismissed with prejudice. Tex. Dep’t of Crim. Just.–Cmty. Just. Assistance Div. v.

Campos, 384 S.W.3d 810, 815 (Tex. 2012).

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Carson asserts generally that she is entitled to discovery of the agreement

between TRS and BCBSTX, which she asserts will provide evidentiary basis for her

claim that BCBSTX is not entitled to derivative sovereign immunity. Carson had

ample opportunity to seek discovery, but failed to obtain a ruling from the trial court

on her motion to compel. See Garcia, 372 S.W.3d at 643 (declining jurisdictional

discovery where plaintiff had “ample opportunity to seek discovery” during the three

months between the plea being filed and the hearing on the plea). TRS and the

BCBSTX Defendants filed their pleas to the jurisdiction six months after Carson

filed suit. Two weeks after the jurisdictional pleas were filed Carson filed her motion

to compel production of the agreement between TRS and BCBSTX. Nearly six

months later, the trial court held a non-evidentiary hearing, and one month later

granted the Defendants’ pleas to the jurisdiction with prejudice.

The pleas to the jurisdiction placed Carson on notice that her claims were

subject to dismissal under the doctrine of sovereign immunity. See Fraley, 664

S.W.3d at 101–02. Carson had ample time to conduct discovery and filed a motion

to compel, but failed to obtain a ruling on that motion or object to the trial court’s

failure to rule. Other than general references to compelling production of the

agreement, Carson did not inform the trial court how she would amend her pleadings

to assert waiver of immunity for TRS, BCBSTX, and the Individual Defendants.

Accordingly, we conclude the trial court did not err in dismissing Carson’s

claims with prejudice. See B.E.C.D.S, Inc. v. Tex. Workforce Comm’n, No. 15-24-

00031-CV, 2025 WL 757247, at *2 (Tex. App.—15th Dist. Mar. 11, 2025, no pet.)

(mem. op.) (affirming dismissal with prejudice when plaintiffs failed to file an

amended pleading asserting a valid waiver of immunity in the five months the

jurisdictional plea was pending or during the time the trial court maintained plenary

power). We overrule Carson’s third issue.

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CONCLUSION

Having overruled each of Carson’s issues on appeal, we affirm the trial court’s

orders dismissing Carson’s claims.

/s/ April Farris

April Farris

Justice

Before Chief Justice Brister and Justices Field and Farris.

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