Wolfgang Hirczy De Mino v. the University of Houston

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00311-CV

Wolfgang Hirczy de Mino, Appellant

v.

The University of Houston, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. GN204624, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Dr. Wolfgang Hirczy de Mino (1) appeals from the trial court's dismissal with

prejudice of his breach of contract action against appellee University of Houston. We will modify the

judgment to reflect a dismissal without prejudice, and as modified, affirm.

Factual and Procedural Background

From August 1997 to August 2001, Hirczy de Mino was employed as a lecturer at the

University of Houston. Hirczy de Mino was employed under a series of one-semester contracts. In

August 2001, Hirczy de Mino was notified that his contract would not be renewed for the fall 2001

semester. (2) In December 2002, Hirczy de Mino filed suit for breach of contract in Travis County. The

University filed a plea to the jurisdiction based on sovereign immunity. A hearing was held on the

plea; Hirczy de Mino waived his right to appear in person. The trial court dismissed the suit with

prejudice.

Discussion (3)

Sovereign Immunity

As a general rule, the State of Texas and its governmental units are immune from suits

for money damages unless the legislature has expressly consented to the suit. General Servs. Comm'n

v. Little-Tex Insulation Co. , 39 S.W.3d 591, 594 (Tex. 2001). When a governmental unit contracts

with a private citizen, it generally retains immunity from suit even though it waives immunity from

liability. Federal Sign v. Texas S. Univ. , 951 S.W.2d 401, 408 (Tex. 1997). Generally, a party seeking

redress against a governmental unit for breach of contract must establish legislative consent to sue by

bringing suit under a special statute or obtaining a legislative resolution. Little-Tex , 39 S.W.3d at 596 ;

see Tex. Civ. Prac. & Rem. Code Ann. § 107.002 (West 1997). In the absence of a waiver of

governmental immunity, a court has no subject matter jurisdiction to entertain a suit against a

governmental unit. Texas Dep't of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999).

A plea to the jurisdiction challenges the trial court's authority to determine the subject

matter of a specific cause of action. Rylander v. Caldwell , 23 S.W.3d 132, 135 (Tex. App.--Austin

2000, no pet.). In order to prevail, the party asserting the plea to the jurisdiction must show that even

if all of the allegations in the plaintiff's pleadings are taken as true, an incurable jurisdictional defect

is apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer

jurisdiction on the trial court. Id. Because subject-matter jurisdiction presents a question of law, we

review the district court's decision de novo . Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d

217, 226 (Tex. 2004); Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998); Caldwell ,

23 S.W.3d at 135 .

In reviewing a trial court's ruling on a plea to the jurisdiction, we do not look at the

merits of the case; instead, we "construe the pleadings in favor of the plaintiff," looking to the

pleader's intent and accepting the factual allegations as true. Caldwell , 23 S.W.3d at 135 . "The truth

of the plaintiff's allegations is at issue only if the defendant pleads and proves that the allegations were

fraudulently made to confer jurisdiction on the court." Id. Further, "a court deciding a plea to the

jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so

when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d

547, 555 (Tex. 2000). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction

and thus is properly asserted in a plea to the jurisdiction. Miranda , 133 S.W.3d at 224 ; Jones , 8

S.W.3d at 638-39 (Tex. 1999).

Education Code

Hirczy de Mino argues that his breach of contract claim was properly before the trial

court because the Legislature waived the University's sovereign immunity through the "sue and be

sued" language of section 111.33 of the Texas Education Code. Hirczy de Mino relies on Fazekas v.

University of Houston , which held that section 111.33 provided legislative consent for a professor's

breach of contract suit against the University. See 565 S.W.2d 299, 302 (Tex. App.--Houston [1st

Dist.] 1978, writ ref'd n.r.e.).

After Fazekas was decided, however, the Legislature amended section 111.33 to add

the last sentence of the applicable version:

The board [of regents] has the power to sue and be sued in the name of the University

of Houston. Venue shall be in either Harris County or Travis County. The

University shall be impleaded by service of citation on the president or any of its vice

presidents. Nothing in this section shall be construed as granting legislative consent

for suits against the board, the University of Houston System, or its component

institutions and entities except as authorized by law.

Tex. Educ. Code Ann. § 111.33 (West 2002); see Freedman v. University of Houston , 110 S.W.2d

504 , 507-08 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (discussing post- Fazekas amendment

and holding professor's suit against University of Houston barred by sovereign immunity).

We construe statutes as written and, if possible, ascertain legislative intent from the

statute's language. See Marcus Cable Assocs., L.P. v. Krohn , 90 S.W.3d 697, 706 (Tex. 2002);

Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001). We begin with the plain language

of the statute because we assume that the Legislature tries to say what it means. See Fitzgerald v.

Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 866 (Tex. 1999); Villanueva v. Gonzalez , 123

S.W.3d 461, 465 (Tex. App.--San Antonio 2003, no pet.). Even when a statute is not ambiguous,

however, we consider other factors to determine the Legislature's intent such as the object sought

to be attained, the legislative history, and the consequences of a particular construction. Tex. Gov't

Code Ann. § 311.023 (West 1998); Helena Chem. Co. , 47 S.W.3d at 493 ; Hageman v. Luth , No. 03-03-081-CV, slip op. at 10, 2004 Tex. App. LEXIS 5566, at *16-17 (Tex. App.--Austin June 24,

2004, no pet.).

The legislative history of the amendment supports the proposition that the legislature

intended to alter the result of Fazekas . The bill analysis for H.B. 1182 refers to the 1978 court

opinion holding that the System had waived its sovereign immunity, and "was open to suit without

authorization of law." House Comm. on Higher Educ., Bill Analysis, Tex. H.B. 1182, 69th Leg.,

R.S. (1985). The analysis further states, "The University of Houston must make clear its possession

of sovereign immunity as a state agency." Id . In a higher education committee meeting discussing

the bill, the chair noted:

[House Bill 1182] simply allows the University of Houston System to do the same

thing that essentially is available for other institutions of higher education and that

is to say that, uh, suits cannot be filed against the university without legislative

permission . . . .

My understanding is that this is pretty generally available to other institutions and

really gives the University of Houston the same status that other institutions have.

Laying Out & Recommendation Concerning House Bill 1182 , House Comm. on Higher Education,

69th Leg., R.S., (Mar. 18, 1985). The legislative history comports with the language of the statute

that the section should not be construed as granting consent for suits against the University.

Accordingly, Hirczy de Mino cannot rely on section 111.33 as a waiver of sovereign

immunity. His suit is barred unless he can show it is "authorized by law"or some exception to the

doctrine of sovereign immunity applies. We overrule issues one and two.

Waiver By Conduct

Hirczy de Mino contends that he pleaded the "waiver by conduct" exception to

sovereign immunity, and so the plea to the jurisdiction was erroneously granted. He argues that the

Texas Supreme Court left open the question of waiver by conduct in its decision in Federal Sign .

See 951 S.W.2d at 408 n.1. However, this argument has been effectively foreclosed by recent

supreme court decisions. See, e.g. , Texas Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d

849, 857 (Tex. 2002). This Court recently noted that since IT-Davy , it has only recognized a waiver

of immunity in contract cases when the State has first sued the contracting party. Smith v. Lutz , No.

03-04-00074-CV, slip op. at 8, 2004 Tex. App. LEXIS 5081, at *12-13 (Tex. App.--Austin June

10, 2004, no pet.); State v. Fidelity & Deposit Co. of Maryland , 127 S.W.3d 339, 343-44 (Tex.

App.--Austin 2004, pet. filed) (citing IT-Davy , 74 S.W.3d at 861 ("As one example, it has long been

held that the State can waive immunity by filing suit.") (Hecht, J., concurring)); see also Reata

Constr. Corp. v. City of Dallas , 47 Tex. Sup. Ct. J. 408 , 409, 2004 Tex. LEXIS 303 , at *6-8 (Apr.

2, 2004); Kinnear v. Texas Comm'n on Human Rights , 14 S.W.3d 299, 300 (Tex. 2000). In Lutz ,

this Court concluded: "We await further guidance from the supreme court on what additional

conduct might be sufficiently egregious to waive the State's immunity from suit." Lutz , slip op. at

8, *12-13 (footnote omitted). Similarly, we decline in ths case to re-visit the "waiver by conduct"

exception. We overrule issue seven.

Constitutional Claims

Open Courts

Hirczy de Mino also contends that if amended Education Code section 111.33

repealed its former waiver of sovereign immunity, that repeal was an unconstitutional violation of

the Texas Open Courts Provision. "All courts shall be open, and every person for an injury done

him, in his lands, good, person or reputation shall have a remedy by due course of law." Tex. Const.

art. I, § 13. This provision has been held to apply to prohibit statutory restrictions of cognizable

common law causes of action. Federal Sign , 951 S.W.2d at 410 . However, section 111.33 does not

foreclose a breach of contract lawsuit or leave appellant without a remedy; it simply requires that

appellant obtain legislative consent to suit before initiating litigation. See Freedman , 110 S.W.2d

at 508. Thus, section 111.33 does not violate the "open courts" provision. Id . "Moreover, as the

Texas Supreme Court has indicated, merely 'upholding established sovereign immunity law' does

not violate the open courts provision." Id . (citing Federal Sign , 951 S.W.2d at 410 ).

Takings

Hirczy de Mino argues that the trial court erred in dismissing his constitutional

takings claim because sovereign immunity does not bar that type of claim. See Tex. Const. art. I,

§ 17 ("No person's property shall be taken, damaged or destroyed for or applied to public use

without adequate compensation being made, unless by the consent of such person."); Steele v. City

of Houston , 603 S.W.2d 786, 791 (Tex. 1980); State v. Biggar , 848 S.W.2d 291, 295 (Tex.

App.--Austin 1993), aff'd , 873 S.W.2d 11 (Tex. 1994).

Whether particular facts constitute a taking is a question of law. See Mayhew , 964

S.W.2d at 936 . The supreme court has outlined a three-part test to identify a constitutional taking:

(1) the State intentionally performed certain acts, (2) that resulted in a "taking" of property, (3) for

public use. Little-Tex , 39 S.W.3d at 598 ; see Steele , 603 S.W.2d at 788-92 . To meet the first prong,

the State must have the requisite intent to be acting under its eminent domain powers, rather than

merely withholding property or money in a contract dispute. Little-Tex , 39 S.W.3d at 598-99 ; Green

Int'l, Inc. v. State , 877 S.W.2d 428, 434 (Tex. App.--Austin 1994, writ dism'd by agr.). "The State,

in acting within a color of right to take or withhold property in a contractual situation, is acting akin

to a private citizen and not under any sovereign powers." Little-Tex , 39 S.W.3d at 599 ; see Green

Int'l , 877 S.W.2d at 434 . The Little-Tex court concluded that because that dispute was a

disagreement about the contractor's right to additional payments under the contract, the State was

merely acting under its colorable contractual rights, not taking the contractor's property under

eminent domain. Little-Tex , 39 S.W.3d at 599 .

Generally, the term "property," when used in the context of a "takings" claim, is

restricted to interests in physical or tangible property along with all rights of an intangible nature

which accompany land ownership. See G.C.&S.F.R.R. Co v. Fuller , 63 Tex. 467, 469 (1885); Forest

Lawn Lot Owners Ass'n. v. State , 248 S.W.2d 793, 799-800 (Tex. Civ. App. Dallas--1953), rev'd

on other grounds , 254 S.W.2d 87 (Tex. 1953). It does not include such interests as a state

employee's interest in his job with a state agency or other interests involving property other than real

property. Bates v. Texas State Technical Coll. , 983 S.W.2d 821 , 826 n.8 (Tex. App.--Waco 1998,

pet. denied).

Hirczy de Mino identifies no real property or interest attendant to real property of

which the University has deprived him without paying adequate compensation. Accordingly, he has

not pleaded sufficient facts to give the district court jurisdiction over a cause of action under the

"takings" clause of art. I, § 17 of the Texas Constitution.

Impairment of Contracts

Hirczy de Mino contends that reading section 111.33 to impose the bar of sovereign

immunity to his suit violates the "obligations of contracts" provision of art. I, § 16 of the Texas

Constitution and thus was erroneous. When a statute is already in effect at the time a contract is

made, it cannot be said that the obligations of the contract are impaired by the operation of the

statute. Cessna Fin. Corp. v. Morrison , 667 S.W.2d 580, 584 (Tex. App.--Houston [1st Dist.] 1984,

no writ); City of Brownsville v. Public Util. Comm'n of Texas , 616 S.W.2d 402, 410 (Tex.

App.--Texarkana 1981, writ ref'd n.r.e.). Hirczy de Mino's contract with the University was signed

in the year 2001, well after the amendment to 111.33 was passed. Because the statute was already

in effect at the time, it cannot, as a matter of law, violate the "impairment of contracts" language of

article 1, section 16. See Cessna , 668 S.W.2d at 584.

Due process

Hirczy de Mino argues that, to the extent that the amendment to section 111.33

abrogates citizens' rights to sue the University for breach of contract, it removes a vested property

right without regard to due process. However:

Our Constitution's guarantee of due course of the law does not obligate the State to

provide judicial relief from all its actions. It may retain for itself, through its

Legislature, the exclusive power to determine its liabilities, bound by its conscience.

Federal Sign , 951 S.W.2d at 411 . A party contracting with the state is not denied all process, or

even due process, but only judicial process. Id . The State provides a process by which a claimant

may petition the Legislature for permission to bring suit on a breach of contract claim. See Tex. Civ.

Prac. & Rem. Code Ann. § 107.002 (West 1997). The Supreme Court concluded that "these

legislative procedures provide sufficient relief and do not deny constitutional due course of law

guarantees." Federal Sign , 951 S.W.2d at 411-12 . Hirczy de Mino pleaded no facts to establish

jurisdiction in the trial court to hear and adjudicate a due course of law claim under the Texas

Constitution. We overrule issues three, five, and eight.

Declaratory Judgment

Hirczy de Mino asserts that even without jurisdiction to hear the contract dispute, the

trial court had jurisdiction over his declaratory judgment claim. The State responds that Hirczy de

Mino is simply using the Declaratory Judgments Act in an improper attempt to confer jurisdiction

on the trial court to decide the breach of contract claim. See IT-Davy , 74 S.W.3d at 859-60 ; W.D.

Haden Co. v. Dodgen , 308 S.W.2d 838, 839 (1958).

The Uniform Declaratory Judgment Act (UDJA) is a remedial statute designed "to

settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal

relations." Tex. Civ. Prac. & Rem. Code Ann. § 37.002 (b) (West 1997). The Act provides:

A person interested under a deed, will, written contract, or other writings constituting

a contract or 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.

Id. § 37.004(a) (West 1997).

Normally, a party may seek declaratory relief when its rights under a contract are

uncertain or threatened, provided there is a justiciable controversy. See, e.g. , Paulsen v. Texas Equal

Access to Justice Found. , 23 S.W.3d 42, 46 (Tex. App.--Austin 1999, pet. dism'd) (contract may

be construed before or after breach, provided litigation between parties is imminent if contractual

uncertainties are not judicially resolved); see also Bonham State Bank v. Beadle , 907 S.W.2d 465,

467 (Tex. 1995) (declaratory judgment appropriate only if justiciable controversy exists) (citing

Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993)). However,

declaratory judgment actions based on a governmental unit's breach of contract routinely have been

disallowed by the supreme court, as they are suits against the State, and the State has immunity from

suit unless expressly waived. See IT-Davy , 74 S.W.3d at 855-56 .

The Texas Supreme Court has outlined two distinct types of declaratory judgment

suits against the State. The first is a suit that is brought against state officers who allegedly act

without legal or statutory authority and that seeks to compel the officers to act within their official

capacity; these are not considered suits against the State and therefore do not implicate sovereign

immunity. See IT-Davy , 74 S.W.3d at 855 ; Dodgen , 308 S.W.2d at 840 ; Cobb v. Harrington , 190

S.W.2d 709, 712 (Tex. 1945). On the other hand, declaratory-judgment actions brought against state

officials seeking to establish a contract's validity, to enforce performance under a contract, or to

impose contractual liabilities are considered suits against the state because they seek to control state

action or impose liability on the state. This second category of declaratory actions may not be

maintained without legislative permission. See IT-Davy , 74 S.W.3d at 855-56 ; Federal Sign , 951

S.W.2d at 404 ; Griffin v. Hawn , 341 S.W.2d 151, 152 (Tex. 1960); Dodgen , 308 S.W.2d at 840 .

Hirczy de Mino has not obtained such permission; accordingly, he may not maintain a declaratory

judgment action concerning the contract. We overrule issue four.

Dismissal with Prejudice

Hirczy de Mino contends that the trial court should have abated his lawsuit to allow

him to seek legislative consent to sue. However, when a trial court learns that it lacks jurisdiction

to hear a lawsuit, the court has little discretion but to immediately dismiss the claim. Li v. Univ. of

Tex. Health Sci. Ctr. , 984 S.W.2d 647, 654 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

"Thus, a trial court may not abate a suit to await developments in the positions or claims of the

parties that may trigger its jurisdiction." Freedman , 110 S.W.3d at 509. Rather, jurisdiction must

be present at the outset of the litigation. Id .; Li , 984 S.W.2d at 654 . We overrule issue six.

Hirczy de Mino contends that the request to declare rights under the contract was

brought on behalf of all others similarly situated who had contracts with the University and so the

suit should not have been dismissed without a ruling on class certification. Nothing in the record

reflects that this suit was filed as a class action. See Tex. R. Civ. P. 42. We overrule issue ten.

Hirczy de Mino contends that if dismissal was appropriate, then his suit should have

been dismissed without prejudice. In general, a dismissal with prejudice is improper when the

plaintiff is capable of remedying the jurisdictional defect. Harris County v. Sykes , 136 S.W.3d 635,

639 (Tex. 2004); (citing Dahl v. State , 92 S.W.3d 856, 862 (Tex. App.--Houston [14th Dist.] 2002,

no pet.); Thomas v. Skinner , 54 S.W.3d 845, 847 (Tex. App.--Corpus Christi 2001, pet. denied)).

However, dismissal with prejudice may be appropriate when sovereign immunity is the reason that

the trial court lacks subject matter jurisdiction. Id . (citing Martin v. Texas Bd. of Criminal Justice ,

60 S.W.3d 226, 231 (Tex. App.--Corpus Christi 2001, no pet.); University of Tex. Med. Branch v.

Hohman , 6 S.W.3d 767, 771 (Tex. App.--Houston [1st Dist.] 1999, pet. dism'd w.o.j.); Jones v. City

of Stephenville , 896 S.W.2d 574, 577 (Tex. App.--Eastland 1995, no writ); Liberty Mut. Ins. Co.

v. Sharp , 874 S.W.2d 736, 740 (Tex. App.--Austin 1994, writ denied)).

In Harris County v. Sykes , the Texas Supreme Court noted: "If a plaintiff has been

provided a reasonable opportunity to amend after a governmental entity files its plea to the

jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute

immunity, then the trial court should dismiss the plaintiff's action. Such a dismissal is with

prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been

finally determined." Id . (emphasis added).

Nevertheless, Hirczy de Mino's argument that his suit should be dismissed without

prejudice has merit. As distinguished from the Tort Claims Act claim in Sykes , Hirczy de Mino

brings a breach of contract action for which legislative consent is necessary. Indeed, a cause of

action under these circumstances accrues only when the State gives its permission to sue. See Mount

Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 211 (Tex. 1989) (citing Duhart

v. State , 610 S.W.2d 740, 742-43 (Tex. 1980)); State v. Brainard , 968 S.W.2d 403, 410 (Tex.

App.--Amarillo 1998), (4) (cause of action arose when legislature gave consent to sue State); see

Crawford v. Texas Dep't of Transp. , No. 04-04-029-CV, slip op. at 8, 2004 Tex. App. LEXIS 7638 ,

at *12 (Tex. App.--Austin August 26, 2004) (memorandum op.). Ordinarily, the statute of

limitations does not begin to run until the State gives its consent to be sued. Barganier v. Guest , 246

S.W.2d 901 (Tex. Civ. App.--Waco 1952, writ ref'd); Li , 984 S.W.2d at 654 n.3.

Unlike Sykes , this is not a case involving potentially endless amendments to the

pleadings that ultimately cannot change the underlying facts asserted to support the cause of action.

Here, Hirczy de Mino has no cause of action for breach of contract unless he can secure legislative

consent. Hirczy de Mino will either secure legislative consent, or not. A dismissal with prejudice

is an adjudication on the merits of the matter actually decided; "there is a final adjudication that the

Legislature has not waived Harris County's immunity on the facts of this case." Sykes , 136 S.W.3d

at 640 . In Hirczy de Mino's case, it would be illogical to dismiss with prejudice a cause of action

that has neither definitively accrued, nor definitively failed for lack of legislative consent. We

sustain issue nine.

Conclusion

We have overruled all of Hirczy de Mino's issues except issue nine concerning the

dismissal with prejudice, which we have sustained. Accordingly, we modify the judgment to reflect

a dismissal without prejudice, and as modified, affirm. See Tex. R. App. P. 43.2(b).

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Modified and, as Modified, Affirmed

Filed: October 14, 2004

1. Hirczy de Mino has represented himself pro se throughout this litigation, which does not

excuse him from complying with applicable rules of procedure: "Neither is it [the right of self-representation] a license not to comply with the relevant rules of procedural and substantive law."

Faretta v. California, 422 U.S. 806 , 834 n.46 (1975). As stated by the Texas Supreme Court:

There cannot be two sets of procedural rules, one for litigants with counsel and the other

for litigants representing themselves. Litigants who represent themselves must comply

with the applicable procedural rules, or else they would be given an unfair advantage

over litigants represented by counsel.

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Shull v. United Parcel Serv.,

4 S.W.3d 46, 52-53 (Tex. App.--San Antonio 1999, pet. denied); Chandler v. Chandler , 991 S.W.2d

367, 378-79 (Tex. App.--El Paso 1999, pet. denied). Rules of procedure are readily accessible and

are intended to help clarify issues, expedite resolutions, and ensure accurate decisions. See Tex. R.

Civ. P. 1; In re Caldwell, 918 S.W.2d 9, 10 (Tex. App.--Amarillo 1995, no writ).

2. Hirczy de Mino first filed a lawsuit in district court in Harris County alleging breach of contract

and violations of his state and federal constitutional rights. That suit was removed to federal court

where the University of Houston's motion for summary judgment was granted. Hirczy de Mino

appealed to the Fifth Circuit; according to the parties, the case is currently pending on appeal.

3. Hirczy de Mino lists ten issues presented. His argument, however, does not track the issues

in either their order or the way in which the issue is stated. We have followed the argument in the

brief and overruled or sustained the numbered issue that most closely matches the argument.

4. State v. Brainard , 968 S.W.2d 403, 410 (Tex. App.--Amarillo 1998), overruled in part on

other grounds , 12 S.W.3d 6 (Tex. 1999). In turn, Martin v. Amerman, 133 S.W.3d 262, 269 (Tex.

2004), disapproved of language in Brainard concerning the availability of a declaratory judgment

remedy in title disputes as dicta.