Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00002-CV

Texas Logos, L.P., Appellant

v.

Texas Department of Transportation, and Michael W. Behrens, Individually, and in his

capacity as Executive Director of the Texas Department of Transportation, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. D-1-GN-06-003868, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

O P I N I O N

Since the inception of the Texas Department of Transportation's logo sign program

in the early 1990s, Texas Logos, L.P., had held the contract to erect, maintain, and market fee-for-display opportunities on these now-familiar blue signs, located near Texas highway exits, that

contain business logos of participating restaurants, gas stations, and lodging facilities. In December

2005, the department issued a request for proposals (RFP) seeking offers from vendors to operate

the "Information Logo Sign and Tourist-Oriented Directional Sign Program"--which would include

"specific information logo signs," "major shopping area guide signs," and new "tourist-oriented

directional signs" with information about wineries and other agribusiness or tourist-oriented

businesses--following the December 2006 expiration of Texas Logos's contract. Texas Logos,

Media Choice/Quorum Media Group, L.L.C. (Media Choice), and other competing vendors

submitted proposals for award of the contract (the "logo sign contract"). The department ultimately

awarded the logo sign contract to Media Choice.

After unsuccessfully pursuing the administrative protest remedies the department

provided under its rules and requesting, and being denied, a contested-case proceeding on its protest

under the Administrative Procedures Act, Texas Logos sued the department and its executive

director, in his official capacity (collectively, TxDOT) and individually. Texas Logos alleges chiefly

that TxDOT "exceeded its statutory authority" by violating or waiving the requirements of various

statutes and rules governing its procurement of the logo sign contract, resulting in a procurement

that was "riddled with fraud, conflicts of interest, and extra-statutory actions by TxDOT at virtually

every turn." It sought declarations under the Uniform Declaratory Judgments Act (UDJA) (1) that

TxDOT had violated procurement statutes and that the logo sign contract was void. Texas Logos

also sought declarations under the UDJA that TxDOT was statutorily required to adjudicate its

protest through a contested-case proceeding and that its refusal to do so rendered void the agency's

order denying its protest. Finally, Texas Logos requested declarations under section 2001.038 of the

Administrative Procedures Act (2) that TxDOT's administrative protest rules were, for this reason

and others, invalid.

TxDOT (i.e. , the department and Behrens in his official capacity) filed a plea to the

jurisdiction, asserting that Texas Logos's claims against it were barred by sovereign immunity. The

district court granted the plea and dismissed Texas Logos's claims against TxDOT; the claims

against Behrens individually remained pending in the district court. Texas Logos appeals from this

order. (3) For the reasons explained below, we affirm the district court's order.

STANDARD AND SCOPE OF REVIEW

The subject matter jurisdiction of a trial court may be challenged through a

plea to the jurisdiction. See Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26

(Tex. 2004); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); Hendee v. Dewhurst ,

No. 03-06-00501-CV, ___ S.W.3d ___, ___, 2007 Tex. App. LEXIS 4149 , at *22-23

(Tex. App.--Austin May 25, 2007, pet. denied). The immunity from suit encompassed by sovereign

immunity derives a trial court of subject-matter jurisdiction, Reata Constr. Corp . v. City of Dallas ,

197 S.W.3d 371, 374 (Tex. 2006) (citing Miranda , 133 S.W.3d at 224 ), and thus may be raised

through a plea to the jurisdiction. Our discussion of "sovereign immunity" in this opinion refers to

immunity from suit.

The determination of whether a trial court has subject matter jurisdiction begins with

the pleadings. See Miranda , 133 S.W.3d at 226 . The pleader has the initial burden of alleging facts

that affirmatively demonstrate the trial court's jurisdiction to hear the cause. Id. (citing Texas Ass'n

of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993)). Whether the pleader has met

this burden is a question of law that we review de novo. Id. We construe the pleadings liberally and

look to the pleader's intent. Id.

If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue

is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at

226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

When a plea to the jurisdiction challenges the existence of facts alleged by the pleader

to establish the trial court's subject matter jurisdiction, the trial court must consider relevant

evidence submitted by the parties. Id. at 227 (citing Bland , 34 S.W.3d at 555 ); Hendee , ___ S.W.3d

at ___, 2007 Tex. App. LEXIS 4149 , at *24. Here, TxDOT has not challenged the jurisdictional

facts alleged by Texas Logos, nor did it introduce controverting jurisdictional evidence. (4) It disputes

only whether Texas Logos's pleadings are sufficient to affirmatively establish the district court's

subject matter jurisdiction. Consequently, we assume the truth of the factual allegations contained

in Texas Logos's pleadings. Miranda , 133 S.W.3d at 226 .

Additionally, because Texas Logos attached jurisdictional evidence to its petition and

introduced additional evidence in response to TxDOT's plea to the jurisdiction, we may consider it

in resolving the jurisdictional challenges TxDOT has raised. Bland , 34 S.W.3d at 555 ("[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.").

PLEADINGS AND JURISDICTIONAL EVIDENCE

Challenges to logo sign contract

On appeal, Texas Logos principally contends that it properly invoked the district

court's subject-matter jurisdiction through its UDJA claims alleging that TxDOT exceeded its

statutory authority when procuring the logo sign contract and seeking to declare the contract void.

To summarize, Texas Logos alleges that TxDOT violated or exceeded its statutory authority by

improperly skewing its procurement procedures to favor Media Choice, enabling Media Choice to

submit fraudulent, misleading, and inaccurate information upon which TxDOT ostensibly based its

award decision. Central to these allegations is Texas Logos's legal premise that TxDOT's

procurement of the logo sign contract was governed by the State Purchasing and General Services

Act (the "Purchasing Act"). See generally Tex. Gov't Code Ann. §§ 2151.001-2177.103 (West 2000

& Supp. 2006). Among other requirements, the Purchasing Act generally requires competitive

bidding (5) and that state agencies purchase goods and services "that provide the best value for the

state," for which "the purchase price and whether the goods or services meet specifications are the

most important considerations." Id. § 2155.074(a)-(b) (West Supp. 2006).

Overall, Texas Logos alleges that TxDOT's conduct violated these competitive-bidding requirements by failing in its "obligation to place all bidders on the same 'plane of

equality.'" See Texas Highway Comm'n v. Texas Ass'n of Steel Imps., Inc. , 372 S.W.2d 525, 527

(Tex. 1963) (regarding competitive-bidding principles). Texas Logos alleges specifically that

TxDOT violated or exceeded its statutory authority by ignoring several deficiencies in Media

Choice's proposal.

Texas Logos pleads that Media Choice "omitted important pricing information"

elicited by TxDOT's RFP. It asserts that Media Choice "omitted" from a required schedule "an

entire row" of pricing information concerning installation charges for major shopping area guide

signs, and thereby "failed to provide the required pricing for the minimum and maximum proposed

fees for MSAGS Freeway Installation." (6) By nonetheless accepting Media Choice's "incomplete"

proposal and awarding the logo sign contract on that basis, Texas Logos contends that TxDOT

violated and waived its duties under the Purchasing Act to evaluate "the purchase price and whether

the goods meet specifications" as "the most important considerations" in determining the "best value

for the state." See Tex. Gov't Code Ann. § 2155.074 . Texas Logos further pleads that TxDOT's

consideration of Media Choice's "incomplete" proposal violated its rules "requir[ing] submission

and consideration of the proposed fees to be charged to program participants and the percentage of

those fees to be remitted to [TxDOT]." This allegation appears to allude to 43 Tex. Admin. Code

§ 25.403 (b) (2007), which provides, in relevant part, that TxDOT "will determine the best value to

the state by evaluating the contractor's . . . (8) proposed percentage to be paid to the department from

fees collected from program participants; [and] (9) proposed amount for the fees that will be charged

to participants in the program."

Texas Logos also pleads that it "performed an analysis" of the prospective fees that

Media Choice would earn and retain compared to those Texas Logos would earn and retain under

the companies' respective proposals. It concluded that "Media Choice would generate $17,011,398

more in gross revenue . . . than by using the fees proposed by Texas Logos" during the five-year

contract term, but "Media Choice would return $2,568,629 less to the State than Texas Logos during

that time period while retaining in Media Choice's coffers $19,580,027 more than Texas Logos."

Texas Logos similarly alleges that its returns to the state were higher throughout the contract term

and that it provided a higher guaranteed minimum annual return during the first year. It adds that

"[i]n some cases, the Media Choice proposal specified rates to Texas businesses that are 650%

higher than those proposed by Texas Logos, yet TxDOT ignored this disparity." Texas Logos pleads

that in light of these calculations, TxDOT's award of the logo sign contract to Media Choice "waived

consideration of certain required best value" factors under the Purchasing Act, TxDOT's statutes,

and TxDOT's rules relating to the proposed amount of fees that would be charged to businesses

participating in the program. See Tex. Gov't Code Ann. § 2155.074 ; Tex. Transp. Code Ann.

§ 2391.091 (c) (West 2007); 43 Tex. Admin. Code § 25.403 (b)(8)-(9).

Texas Logos further alleges that Media Choice's proposal would have paid TxDOT

a ten-percent share of only rental fees it collected from participating facilities and shopping areas,

and excluded a second component of total fees, installation fees. As Texas Logos emphasizes,

the legislature has required that contracts for each type of logo sign provide for (1) the assessment

of fees to be paid the contractor by eligible participants, and (2) remittance of at least ten percent

of these fees to TxDOT. Tex. Transp. Code Ann. §§ 391.091 (b) (specific information logo signs),

.0935(g) (major shopping area guide signs), .099(e) (tourist-oriented directional sign program)

(West 2007). Texas Logos pleads that "[t]he law governing this Program, as well as the mandatory

provisions of TxDOT's rules and the RFP, required Media Choice to remit at least 10% of all fees

collected to the State."

Texas Logos also complains that TxDOT permitted Media Choice to submit

unaudited financial statements with its proposal. In this way and others, Texas Logos urges that

Media Choice failed to comply with the requirements of TxDOT's RFP. Texas Logos pleads that

TxDOT's own rules governing its procurement of the logo sign contract required it to disqualify

proposals that did not meet the RFP's terms. See 43 Tex. Admin. Code § 25.403 (c)(1) ("The

department will not consider a proposal that . . . fails to comply with any requirement contained in

the request for proposals issued under this section . . . ."). (7)

Texas Logos pled and produced evidence attempting to tie TxDOT's claimed

favoritism to an alleged quid pro quo between Media Choice and a TxDOT employee who

participated in the evaluation of the logo sign contract proposals. According to Texas Logos,

the employee solicited employment opportunities during the procurement process and "was rewarded

with, a consulting job with a subcontractor to Media Choice after TxDOT awarded the Contract to

Media Choice." (8) Texas Logos also alleged additional conduct by Media Choice in the nature

of fraudulent inducement. It pled that the unaudited financial statements that Media Choice

submitted to TxDOT were "materially false" and "falsely overstated Media Choice's net worth

by approximately one million dollars." Texas Logos also accuses Media Choice of providing

"materially misleading information about which employees would perform the Logo Sign Contract"

and misleading information regarding the entity that would be performing the logo sign contract. (9)

Challenges to protest ruling and denial of contested-case proceeding

Texas Logos also seeks declarations under the UDJA that it was entitled to a

contested-case proceeding to determine its protest, that TxDOT exceeded its statutory authority in

refusing that request, and that "TxDOT's protest order is, therefore, void." Texas Logos relies on

section 2155.076 of the government code, another provision of the Purchasing Act. Section

2155.076 requires that:

each state agency by rule shall develop and adopt protest procedures for resolving

vendor protests relating to purchasing issues. An agency's rules must be consistent

with the [building and procurement] commission's rules. The rules must include

standards for maintaining documentation about the purchasing process to be used in

the event of a protest.

Tex. Gov't Code Ann. § 2155.076 (a) (West 2000). Texas Logos pleads that because section

2155.076 "contemplates an adjudication of vendor's rights under the statutes and rules governing

particular procurements, such protests must be conducted as contested case, consistent with the

procedures in the . . . APA."

Challenges to TxDOT protest rules

Texas Logos's claims under section 2001.038 of the APA seek declarations that

TxDOT's rules governing procurement protests-- 43 Tex. Admin. Code § 9.3 --are invalid. It pleads

that "TxDOT's protest procedures . . . fail to not only apply the contested case procedures found in

the APA, but are instead a sham process designed to cloak TxDOT's actions from any meaningful

scrutiny and, thus, do not . . . effectuate the intent of [section 2155.076]; and . . . contain no standards

for maintaining documents to be used in the event of a protest." Texas Logos elaborates that by

requiring protests to be filed within ten days after a contract award--a deadline corresponding to

TxDOT's response deadline for any Public Information Act request--the TxDOT rules effectively

preclude discovery. It adds that the rules lack provisions for examination of witnesses, subpoenas

to obtain evidence, the appointment of a neutral hearing officer, the presentation of or objection to

evidence, or "a meaningful hearing of the protest."

ANALYSIS

Texas Logos brings two issues on appeal, asserting that the district court had subject-matter jurisdiction over Texas Logos's causes of action for declarations under the UDJA (i.e., its

challenges to both the logo sign contract and the protest denial order) and section 2001.038 of the

APA (its challenges to TxDOT's protest rules).

UDJA

Texas Logos asserts that its UDJA claims properly invoked the district court's

subject-matter jurisdiction because they are predicated on allegations that TxDOT acted beyond its

statutory authority and seek declarations construing that authority. The UDJA provides that a

claimant "whose rights, status, or other legal relations are affected by a statute . . . may have

determined any question of construction or validity arising under [it] and obtain a declaration of

rights, status, or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (a)

(West 1997). The legislature intended the UDJA to be remedial, to settle and afford relief

from uncertainty and insecurity with respect to rights, and to be liberally construed. Id. § 37.002

(West 1997); Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex. 1995).

The UDJA does not create or augment a trial court's subject-matter jurisdiction--it

merely provides a remedy where subject-matter jurisdiction already exists. See Tex. Civ. Prac.

& Rem. Code Ann. § 37.003 (a) (West 1997) ("A court of record within its jurisdiction has power

to declare rights, status, and other legal relations . . . .") (emphasis added); Chenault v. Phillips ,

914 S.W.2d 140, 141 (Tex. 1996); Texas Ass'n of Bus. , 852 S.W.2d at 444 . But while the UDJA

cannot confer subject-matter jurisdiction in the absence of a cause of action within the court's

jurisdiction, "[a] suit under the UDJA is not confined to cases in which the parties have a cause of

action apart from the Act itself." Texas Dep't of Pub. Safety v. Moore , 985 S.W.2d 149, 153

(Tex. App.--Austin 1998, no pet.). (10) That is, a UDJA action will lie within the subject-matter

jurisdiction of the district courts when there is (1) a justiciable controversy as to the rights and status

of parties actually before the court for adjudication; and (2) that will be actually resolved by

the declaration sought. Brooks v. Northglen Ass'n , 141 S.W.3d 158, 163-64 (Tex. 2004); Beadle ,

907 S.W.2d at 467 .

As this Court has repeatedly recognized, a justiciable controversy regarding whether

a state agency or officer has acted beyond statutory authority provides a jurisdictional basis for a

UDJA action seeking construction of that statutory authority. (11) This type of UDJA action,

furthermore, does not implicate sovereign immunity. Texas Ass'n. of Steel Imps., Inc. , 372 S.W.2d

at 530-31 ; Cobb v. Harrington , 190 S.W.2d 709, 712 (Tex. 1945); see also Texas Natural Res.

Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002) ("Private parties may seek

declaratory relief against state officials who allegedly act without legal or statutory authority."); cf.

Director of Dep't of Agric. & Env't v. Printing Indus. Ass'n , 600 S.W.2d 264, 265-66 (Tex. 1980)

(if the complained-of acts of a state official are illegal or outside his statutory authority, "an entity

or person whose rights have been violated . . . may bring suit to remedy the violation or prevent its

occurrence, and such suit is not a suit against the State requiring legislative or statutory

authorization."). (12)

Challenges to logo sign contract

In the Steel Importers case, as Texas Logos emphasizes, the Texas Supreme Court

affirmed a declaratory judgment invalidating agency actions it held to have violated a competitive-bidding statute, and further held that the suit did not implicate sovereign immunity. The Texas

Highway Commission (a TxDOT predecessor) had issued a minute order requiring that its highway

construction contracts require the use of only American-manufactured materials. Texas Ass'n of

Steel Imps., Inc. , 372 S.W.2d at 526 . A trade association representing steel importers sought

declaratory judgment that the order was "invalid, illegal, void, and of no lawful effect" because it

violated the applicable purchasing statute, which required competitive bidding. Id. at 526, 530 . The

supreme court agreed that the minute order violated the competitive bidding requirement of the

statute:

"Competitive bidding" require[s] due advertisement, giving opportunity to bid, and

contemplates a bidding on the same undertaking upon each of the same material

items covered by the contract; upon the same thing. It requires that all bidders be

placed upon the same plane of equality and that they each bid upon the same terms

and conditions involved in all the items and parts of the contract, and that the

proposal specify as to all bids the same, or substantially similar specifications. Its

purpose is to stimulate competition, prevent favoritism and secure the best work and

materials at the lowest practicable price, for the best interests and benefit of the

taxpayers and property owners. There can be no competitive bidding in a legal sense

where the terms of the letting of the contract prevent or restrict competition, favor a

contractor or materialman, or increase the cost of the work or of the materials or

other items going into the project.

Id. at 527 (quoting Sterrett v. Bell , 240 S.W.2d 516, 520 (Tex. Civ. App.--Dallas 1951, no writ)).

The supreme court added that:

[o]nce the view be adopted . . . that the Minute Order is void because it is contrary

to the competitive bidding statute, there can be no basis for saying that the disputed

order was authorized by law. It was wholly nugatory and hence the present

proceeding cannot be classed as a suit against the state.

Id. at 530 (citing Cobb , 190 S.W.2d 790 , State v. Epperson , 42 S.W.2d 228 (Tex. 1931), State

v. Lain , 349 S.W.2d 579 (Tex. 1961), and United States v. Lee , 106 U.S. 197 (1882)). Further, the

court reasoned, "[a]s this is not a suit against the State," the plaintiffs--whom, the court observed,

were "resident citizen property taxpayers of the State of Texas or the representatives of such property

taxpayers," "[a]ll of [whom] are actively engaged in or interested in the sale and use of imported

manufactured products," and some of whom "are owners of imported foreign manufactured products

suitable for highway construction purposes"--"clearly have the right and litigable interest to have

the challenged Minute Order declared null and void." Id. at 530-31.

Texas Logos equates its UDJA claims with the claim in Steel Importers . It argues

that TxDOT, like the highway commission, was required to conduct the logo sign contract

procurement "through a competitive process and had an obligation to place all bidders on the

same 'plane of equality.'" See id. at 527. Instead, Texas Logos alleges, TxDOT waived competitive

requirements and unfairly favored Media Choice over other bidders. It urges that TxDOT had

no statutory authority to conduct the procurement in that manner. This absence of statutory

authority, Texas Logos asserts, renders TxDOT's contract award--like the minute order in Steel

Importers --"void." Although acknowledging that it has located "no authority . . . [that] specifically

holds that ultra vires conduct by an agency permits a Texas court to declare void an unlawfully

entered contract," Texas Logos suggests that "if all variety of agency action can be declared void by

a court, there is no principled reason [why] a contract should be any different."

TxDOT responds that a contract--or at least the logo sign contract-- is different.

First, it asserts that the district court lacked subject-matter jurisdiction to invalidate the contract

award (or its protest decision) because the legislature has not provided for judicial review of these

agency actions. See, e.g. , Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc. ,

145 S.W.3d 170, 172 (Tex. 2004) ("In Texas, a person may obtain judicial review of an

administrative action only if a statute provides a right to judicial review, or the action adversely

affects a vested property right or otherwise violates a constitutional right."). TxDOT asserts--and

Texas Logos acknowledges--that the legislature has not explicitly provided a judicial review

mechanism under the Purchasing Act or the transportation code and the company possessed no

vested property right in the award of the logo sign contract that could support a claim to an inherent

right of judicial review.

TxDOT's argument is misplaced. A UDJA claim is sui generis and, all other things

being equal, the district court's subject-matter jurisdiction over it exists independently of any

administrative remedies. Texas Liquor Control Bd. v. Canyon Creek Land Corp. , 456 S.W.2d

891, 895 (Tex. 1970); Cobb, 190 S.W.2d at 713 . Although the subject matter of a UDJA

claim--including one ostensibly concerning an agency's statutory authority--may sometimes be

subsumed within the agency's exclusive jurisdiction, see Texas Ct. Reps. Certification Bd. v. Esquire

Deposition Servs. , No. 03-06-00002-CV, ___ S.W.3d ___, 2007 Tex. App. LEXIS 5701, at *30-31

(Tex. App.--Austin July 20, 2007, no pet. h.); cf. Texas Mun. Power Agency v. Public Util. Comm'n ,

100 S.W.3d 510, 520 (Tex. App.--Austin 2003, pet. denied) (UDJA claim to construe agency's

statutory authority was broader than subject matter of contested-case proceeding), TxDOT does not

claim that the legislature had granted it exclusive jurisdiction or otherwise displaced the district

court's subject-matter jurisdiction to determine a valid UDJA claim to construe the agency's

statutory authority in regard to the logo sign contract. Likewise, the mere fact that Texas Logos

lacked vested property rights in the contract award that could give rise to an inherent right of judicial

review would not deprive it of standing to prosecute a proper UDJA claim challenging TxDOT's

statutory authority in regard to the contract procurement. See Texas Ass'n of Steel Imps., Inc. ,

372 S.W.2d at 530-31 ; Texas Lottery Comm'n v. Scientific Games Int'l , Inc. , 99 S.W.3d 376,

380 (Tex. App.--Austin 2003, pet. denied) (instant-ticket game vendor had standing to seek

declaratory and injunctive relief challenging lottery commission's statutory authority to adopt

policy requiring consideration of prospective vendor's economic impact on the state when awarding

certain contracts). (13)

TxDOT also asserts that the legislature has given it "sole discretion" or "virtually

unlimited discretion" in awarding the logo sign contract. It points to section 391.091 of the

transportation code, which provides:

(a) The department shall contract with an individual, firm, group, or association

in this state to erect and maintain specific information logo signs and major

shopping area guide signs at appropriate locations along an eligible highway.

(b) The department may enter into a contract under this section by the method

that the department determines is the most practical or most advantageous

for the state, including competitive bids, competitive sealed proposals, and

open market contracts.

(b)[ (14) ] A contract under this section shall provide for:

(1) the assessment of fees to be paid to a contractor by a commercial

establishment eligible for display on the specific information logo

sign; and

(2) remittance to the department of at least 10 percent of the fees

collected by the contractor.

(c) The department shall make a written award of a contract to the offeror whose

proposal offers the best value for the state . In determining the best value for

the state, the department may consider:

(1) revenue provided to the department by the contractor;

(2) fees to be charged eligible businesses or agricultural interests for

inclusion on the signs;

(3) the quality of services offered;

(4) the contractor's financial resources and ability to perform; and

(5) any other factor the department considers relevant .

(d) To the extent of any conflict, this section prevails over any other law relating

to the method of the purchasing of goods and services by the department .

(e) Subtitle D, Title 10, Government Code, and Chapter 223 do not apply to

purchases of goods and services under this section .

Tex. Transp. Code Ann. § 391.091 (emphasis added). TxDOT observes that section 391.091

authorizes it to procure the contract "by the method that the department determines is the most

practicable or most advantageous for the state," id. § 391.091(b), gives it discretion in determining

the "best value for the state," id. § 391.091(c), and trumps other procurement statutes and

law--including the Purchasing Act (subtitle D, title 10 of the government code), a cornerstone of

Texas Logos's claims.

TxDOT contends that Texas Logos has alleged only conduct within the scope of these

discretionary powers and, therefore, seeks to "control state action." In addition to barring suits

for "money damages," sovereign immunity protects the state against suits to "control state action."

IT-Davy , 74 S.W.3d at 855-56 ; Printing Indus. Ass'n , 600 S.W.2d at 265-66 . A suit seeks to control

state action when the judgment would effectively direct or control a government official in the

exercise of his or her discretionary statutory authority. Printing Indus. Ass'n , 600 S.W.2d at 265-66 ;

Griffin v. Hawn , 341 S.W.2d 151, 152-53 (Tex. 1960); Short v. W.T. Carter & Bro. , 126 S.W.2d

953, 962 (Tex. 1939); see also IT-Davy , 74 S.W.3d at 855-56 (characterizing the imposition of

contract liability as "controlling state action"). A declaratory-judgment suit ostensibly to declare

statutory authority may be barred by sovereign immunity if it is predicted upon factual allegations

that fall entirely within a state official's discretionary statutory powers. McLane Co. v. Strayhorn ,

148 S.W.3d 644, 649 (Tex. App.--Austin 2004, pet. denied). In such cases, courts may be able to

decide jurisdictional challenges as a matter of law based on the pleadings by construing the relevant

statutes and ascertaining whether the acts pled fall within or outside discretionary powers. See

Printing Indus. Ass'n , 600 S.W.2d at 265-70 ; Griffin , 341 S.W.2d at 153-54 ; Hendee , ___ S.W.3d

at ___, 2007 Tex. App. LEXIS 4149 , at *29-31; McLane Co. , 148 S.W.3d at 649 . (15)

Texas Logos counters that, notwithstanding section 391.091 of the transportation

code, TxDOT's procurement of the logo sign contract was governed by the Purchasing Act. It

observes that section 391.091 is specifically addressed to contracts only for "specific information

logo signs and major shopping area guide signs." Tex. Transp. Code Ann. § 391.091 (a). The third

type of sign made subject to the logo sign contract--the tourist-oriented directional sign program--is

explicitly addressed only in section 391.099. That provision requires TxDOT to "enter into one or

more contracts" with a third-party vendor to erect and maintain tourist-oriented directional signs

along eligible highways. Id. § 391.099(b), (d) (West 2007). Like contracts for the other types of

signs, contracts for the tourist-oriented directional sign program must provide for the charging of fees

and remittance of at least ten percent to TxDOT. See id. § 391.099(e); cf. id. §§ 391.091(b),

.0935(g). However, section 391.099 does not address the standards governing the procurement of

tourist-oriented directional sign program contracts--and, unlike section 391.091, does not

specifically exclude such contracts from the Purchasing Act or other procurement statutes.

Based on its construction of these statutes, Texas Logos maintains that contract

procurement for the tourist-oriented directional sign program is governed by the Purchasing Act

and that, moreover, TxDOT placed the entire logo sign contract under the Act by opting to procure

a single combined contract for the "Information Logo and Tourist-Oriented Directional Sign

Program." (16) Texas Logos adds that, in any event, these and similar arguments by TxDOT (17) properly

go to the merits of its UDJA claims rather than the district court's subject-matter jurisdiction over

them. It suggests that "[t]he fact that TxDOT and Texas Logos are debating whether the Purchasing

Act applies to the Logo Sign procurement should be proof enough that there is a controversy

regarding the construction and applicability of a statute that is subject to declaratory relief" and

within the district court's subject-matter jurisdiction.

TxDOT counters that even if Texas Logos had, in this or other ways, pled proper

UDJA claims concerning its statutory authority, the claims would nonetheless be barred by sovereign

immunity because they ultimately seek to invalidate the logo sign contract, a remedy that would

"control state action." It adds that because sovereign immunity precludes invalidation of the logo

sign contract, the district court likewise lacks jurisdiction under the UDJA over any component

issues--e.g., those concerning the applicability of the Purchasing Act--because a declaration

regarding those issues would not resolve the ultimate dispute. See Beadle , 907 S.W.2d at 467 (citing

Texas Ass'n of Bus ., 852 S.W.2d at 446 ). We must agree with TxDOT.

It is well-established that a claim--including one under the UDJA--"seeking to

establish a contract's validity, to enforce performance under a contract, or to impose contractual

liabilities are suits against the State." IT-Davy , 74 S.W.3d at 855-56 (characterizing such claims

as a form of "controlling state action"); see W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 840

(Tex. 1958) ("A suit against officers of a state, to require them to perform acts which constitute

a performance of a contract by the state, is in effect a suit against the state itself. A suit against

officers of a state, the purpose or effect of which is to establish the validity of a contract of the state,

or to enforce through them the performance of a contract of the state, or to require acts to be

performed by them which would impose contractual liabilities upon the state, is a suit against

the state.") (quoting Herring v. Houston Nat'l Exch. Bank , 253 S.W. 813, 814 (Tex. 1923)). The

Texas Supreme Court has historically regarded these immunity principles as also barring suits to

cancel or nullify a contract made for the benefit of the state. See W.D. Haden Co. , 308 S.W.2d at

841 ("'There is a clear distinction between a suit against an officer for a wrong committed by him

in the name of the state, and suits brought against an officer to prevent the exercise by the state

through such officer of some act of sovereignty, or suits against an officer or agent of the state to

enforce specific performance of a contract made for the state, or to enjoin the breach of such

contract, or to recover damages for such breach, or to cancel or nullify a contract made for the

benefit of the state .'") (emphasis added) (quoting Imperial Sugar Co. v. Cabell , 179 S.W. 83, 89

(Tex. Civ. App.--Galveston 1915, no writ).

Suits to nullify a contract made for the benefit of the state would likewise implicate

sovereign immunity principles as currently articulated by the Texas Supreme Court. The

contemporary rationale or justification for sovereign or governmental immunity is to protect state

resources from the costs of paying judgments and defending against them so they can instead be used

in accordance with the policy and budgetary directives of the legislature or local governments. See

Reata Constr. Corp. , 197 S.W.3d at 375 (citing IT-Davy , 74 S.W.3d at 854 ) ("A lack of immunity

may hamper governmental functions by requiring tax resources to be used for defending lawsuits and

paying judgments rather than using those resources for their intended purposes."); Tooke v. City of

Mexia , 197 S.W.3d 325, 331-32 (Tex. 2006) (sovereign immunity "remains firmly established,

and as it has come to be applied to the various governmental entities in this State, an important

purpose is pragmatic: to shield the public from the costs and consequences of improvident actions

of their governments"). Contracts are a well-established means through which the state or local

governments effectuate their policy directives regarding governmental functions. See, e.g. , Ben

Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint

Self-Ins. Fund , 212 S.W.3d 320, 322, 325-26 (Tex. 2006); Tooke , 197 S.W.3d at 329 ; Big Spring

v. Board of Control , 404 S.W.2d 810, 817 (Tex. 1966); Osborne v. Keith , 177 S.W.2d 198, 201

(Tex. 1944). Furthermore, contracts may provide financial benefits for governmental entities, and

thus, will have implications for budgetary and appropriations processes. Such is the case with the

logo sign contract, which, as TxDOT observes, guarantees it several million in minimum payments

during the contract term. By interfering with these policy and budgetary decisions regarding the use

of state resources, a suit to invalidate the logo sign contract implicates sovereign immunity.

We disagree with Texas Logos that the statutory violations it alleges would, if proven,

render the logo sign contract void ; i.e., a nullity. TxDOT possessed express statutory authority to

contract with regard to all three types of signs addressed in the logo sign contract. See Tex. Transp.

Code Ann. §§ 391.091 (a) ("The department shall contract with an individual, firm, group, or

association in this state to erect and maintain specific information logo signs and major shopping

area guide signs at appropriate locations along an eligible highway."), .0935(f) ("The commission

may contract with an individual, firm, group, or association in this state to erect and maintain major

shopping area guide signs at appropriate locations along an eligible urban highway."), .099(d) ("The

commission shall enter into one or more contracts with an individual, firm, group, or association

in this state to erect and maintain tourist-oriented directional signs at locations along eligible

highways."). Furthermore, the Purchasing Act--assuming it applies, as Texas Logos argues--does

not reflect legislative intent to render void an otherwise-authorized contract executed in violation

of its requirements. Instead, the legislature provided a range of other remedies and responses

to violations, including agency protest procedures, see Tex. Gov't Code Ann. § 2155.076 , dismissal

of agency employees, id. § 2155.003 (West 2000) (conflict-of-interest prohibitions), legal action

by the agency against defaulting contractors, id. § 2155.070(c) (West 2000), and removing vendors

from participating in state contracts, id. §§ 2155.070(d), 2155.077 (West 2000). See also id.

§ 2155.004(d) (West Supp. 2006) (prohibition against agencies accepting bids or awarding contracts

including financial participation of certain agency personnel "does not create a cause of action to

contest a bid or award of a state contract"). This statutory scheme contemplates that while contracts

executed in violation of the Act's requirements might be subject to invalidation by the agency or

other statutory remedies, they would not be rendered a legal nullity on that basis. Cf. Friends of

Canyon Lake, Inc. v. Guadalupe-Blanco River Auth. , 96 S.W.3d 519, 528 (Tex. App.--Austin 2002,

pet. denied) (allegations that applicant had failed to give required notice and "failed to provide

statutorily required information to the TNRCC" as part of water right permit application process did

not state claim that TNRCC had acted wholly beyond its statutory permitting jurisdiction). Finally,

Texas Logos's allegations of fraud or misrepresentation by Media Choice or self-dealing by an

employee are the types of allegations that render a contract voidable, not void. See Dallas Farm

Machinery Co. v. Reaves , 158 Tex. 1, 12 (Tex. 1957); Osborne , 177 S.W.2d at 201 .

We agree with TxDOT that the sovereign-immunity implications of its existing

contract with Media Choice distinguish this case from Steel Importers and the other cases involving

challenges to agency statutory authority on which Texas Logos relies. Texas Logos's cases each

involved declarations or injunctions that operated prospectively to compel state officials and

agencies to comply with their statutory authority. Although these remedies had the effect of

invalidating certain agency directives or policies, they did not establish a right to money damages

or invalidate an existing contract. Texas Logos's claims, by contrast, explicitly attack an existing

contract with the state.

An otherwise-proper declaratory claim alleging statutory violations may nonetheless

have the effect of establishing a right to a remedy that is barred by sovereign immunity. For

example, a declaratory claim that would be proper if asserted to compel the state to act within its

statutory powers prospectively may nonetheless be barred by sovereign immunity to the extent it

alleges past statutory violations that implicate a right to money damages. This distinction is

illustrated by recent Texas decisions concerning declaratory claims of statutory rights to payments.

In City of Houston v. Williams , a group of retired firefighters sought a declaratory judgment that the

city had violated chapter 143 of the local government code by improperly calculating lump-sum

payments of accrued vacation and sick leave paid upon termination and in improperly deducting

alleged overpayments of overtime. 216 S.W.3d 827, 828 (Tex. 2007) (per curiam); see Tex. Loc.

Gov't Code Ann. §§ 142.0017 , 143.115-.116 (West 1999). The city filed a plea to the jurisdiction

asserting governmental immunity, which the district court denied and the court of appeals affirmed.

In relevant part, the court of appeals held that the city had no immunity from the retirees' declaratory

judgment claim because it sought construction of the pertinent statutory rights and the trial court had

purported to reserve determination of damages for a later date. The supreme court reversed, holding

that the firefighters' declaratory judgment claim actually sought money damages and, therefore,

implicated the city's governmental immunity. Williams , 216 S.W.3d at 828 -29 (citing IT-Davy ,

74 S.W.3d at 856 ).

The supreme court reasoned that "[t]he only injury the retired firefighters allege has

already occurred, leaving them with only one plausible remedy--an award of money damages." Id.

at 829. It further explained that whether the plaintiffs sought a declaration regarding a "legitimate

question of statutory interpretation" was irrelevant, because, "in every suit against a governmental

entity for money damages, a court must first determine the parties' contract or statutory rights; if the

sole purpose of such a declaration is to obtain a money judgment, immunity is not waived." Id. As

for the trial court's reservation of a damages determination, the court observed that "governmental

immunity does not spring into existence when a damages award is finally made; it shields

governments from the costs of any litigation leading up to that goal." Id.

Williams thus recognized a dichotomy between declaratory and injunctive claims

regarding past violations of statutory rights to payment under chapter 143 (which implicate

governmental immunity because the "only plausible remedy" is money damages) and those seeking

only to compel a municipality to comply with the statutes in the future (which, even while

implicating rights to future payments, do not implicate immunity). See Bell v. City of Grand Prairie ,

221 S.W.3d 317, 324-26 (Tex. App.--Dallas 2007, no pet.). (18)

A similar principle governs here. Even if sovereign immunity would not otherwise

have barred Texas Logos's declaratory claims if it had alleged ongoing statutory violations in the

logo sign procurement and sought to make TxDOT comply with these statutes, Texas Logos alleges

only past statutory violations, the "only plausible remedy" for which is the invalidation of the

contract. (19) Such a remedy, we have seen, implicates sovereign immunity and bars Texas Logos's

UDJA claims challenging the logo sign contract and procurement. See Williams , 216 S.W.3d at 828-29 ; see also Tooke , 197 S.W.3d at 331-32 (sovereign or governmental immunity functions "to shield

the public from the costs and consequences of improvident actions of their governments").

Challenges to procurement order & denial of contested case hearing

We likewise conclude that sovereign immunity bars Texas Logos's UDJA claims

alleging that TxDOT acted beyond its statutory authority in refusing to determine its protest through

a contested-case proceeding and seeking a declaration voiding TxDOT's denial of the protest. Under

the precedent of this Court, Texas Logos does not allege acts by TxDOT that exceed its statutory

authority. See Printing Indus. Ass'n , 600 S.W.2d at 265-70 ; Hendee , ___ S.W.3d at ___, 2007

Tex. App. LEXIS 4149 , at *29-31; McLane Co. , 148 S.W.3d at 649 . Specifically, this Court has

long held that, absent express statutory authority, the APA does not independently provide a right

to a contested case hearing. (20)

Texas Logos has not asserted a basis for our distinguishing or

departing from these decisions. Barring any, we overrule Texas Logos's first issue.

Section 2001.038

In its second issue, Texas Logos asserts that the district court had subject-matter

jurisdiction over its cause of action for a declaration under section 2001.038 of the APA

that TxDOT's protest rules are invalid. Section 2001.038 creates a cause of action for declaratory

judgment regarding "[t]he validity or applicability of a rule . . . if it is alleged that the rule or

its threatened application interferes with or impairs, or threatens to interfere with or impair, a

legal right or privilege of the plaintiff." Tex. Gov't Code Ann. § 2001.038 (a). Unlike the UDJA,

section 2001.038 is a grant of original jurisdiction and, moreover, waives sovereign immunity. Id.

§ 2001.038(a), (c); Texas Dep't of Human Servs. v. ARA Living Ctrs. of Tex. , 833 S.W.2d 689, 693

(Tex. App.--Austin 1992, writ denied); Southwestern Bell Tel. Co. v. Public Util. Comm'n ,

735 S.W.2d 663, 669 (Tex. App.--Austin 1987, no writ).

However, section 2001.038, like other causes of action, requires the existence of a

justiciable controversy to establish the district court's subject-matter jurisdiction. The justiciable

controversy that Texas Logos pled concerned its rights relative to TxDOT's award of the logo sign

contract to Media Choice and its protest of that award. We have held that sovereign immunity bars

Texas Logos's UDJA claims to invalidate the contract and protest order. The relief provided under

section 2001.038 does not extend to invalidating either TxDOT's protest order or its ultimate

contract award, but only the rules by which the protest was conducted. At this juncture, Texas

Logos's section 2001.038 challenge to the validity of those rules would amount to a mere abstract,

advisory opinion. Cf. Friends of Canyon Lake , 96 S.W.3d at 529 (district court lacked subject-matter jurisdiction over section 2001.038 rule challenge where underlying controversy had been

extinguished by plaintiff's failure to exhaust administrative remedies). We overrule Texas Logos's

second issue.

CONCLUSION

Having overruled Texas Logos's issues, we affirm the district court's judgment

dismissing Texas Logos's suit for want of subject-matter jurisdiction. As our disposition is

controlled by principles of sovereign immunity, we are not passing on the merits of Texas Logos's

allegations concerning the logo sign procurement. Although sometimes criticized as arbitrary or

unfair in the manner by which it shields alleged "improvident actions" by government from judicial

redress, sovereign immunity is nonetheless the established law of Texas that we are bound to apply.

But we observe that, as a corollary to sovereign immunity principles, the judiciary

defers to the legislature to decide when, if, or to what extent to waive such immunity, as these

decisions entail sensitive policy judgments concerning the use of public resources and governmental

functions that are the proper domain of that branch. (21) The legislature may, as it sees fit, waive

immunity by statute or express permission. Tooke , 197 S.W.3d at 332-33 ; IT-Davy , 74 S.W.3d at

853-54 . Further, while Texas Logos correctly notes that "the courts of this State . . . have [some]

jurisdiction to reign in agencies that overstep their statutory authority" through mechanisms like the

UDJA, we note that the legislature and executive possess much more expansive powers in this

regard, when they deem such actions appropriate. (22)

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: August 30, 2007

1. Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001 -.011 (West 1997 & Supp. 2006).

2. Tex. Gov't Code Ann. § 2001.038 (West 2000).

3. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (West Supp. 2006). In its notice of

appeal, Texas Logos erroneously included Behrens in his individual capacity as one of the appellees.

Thus, although our caption indicates otherwise, Behrens individually is not a party to this appeal.

4. The only evidence TxDOT introduced was a copy of a letter from Texas Logos's counsel

to establish that Texas Logos, not TxDOT, had requested the hearing on TxDOT's plea.

5. See Tex. Gov't Code Ann. § 2155.063 ("Except as otherwise provided by this subtitle, a

purchase of or contract for goods or services shall, whenever possible, be accomplished through

competitive bidding.").

6. Texas Logos also complains that Media Choice "did not follow the RFP's instructions" to

fill in the blanks in the copy of the schedule provided, but "retyped the schedule including the bold,

all caps statement setting forth the consequence for the failure to fully complete the schedule."

7. Texas Logos also cites 1 Tex. Admin. Code § 113.6 (a)(7) (2007), which states that "A bid

containing a material failure to comply with the advertised specifications shall be rejected." Section

113.6(a)(7) governs procurements under the Purchasing Act. See 43 Tex. Admin. Code § 9.3 (b)(1),

(10)-(11) (2007).

8. Texas Logos also alleged that "[t]he same TxDOT employee had previously assisted in

securing the approval of proprietary technology belonging to the Media Choice subcontractor while

employed by TxDOT."

9. These and similar allegations are the subject of a related action that Texas Logos filed in

the district court of Williamson County against Media Choice and related entities; the Media Choice

subcontractor that allegedly "rewarded" the TxDOT employee; the now former TxDOT employee,

Gregory Brinkmeyer, individually; and Brinkmeyer's consulting company. After the district court

dismissed this suit for want of subject-matter jurisdiction, Texas Logos appealed to this Court, and

this proceeding remains pending before us. Texas Logos, L.P. v. Brinkmeyer , No. 03-07-00032-CV,

(Tex. App.--Austin, notice of appeal filed Jan. 22, 2007).

10. See also Bexar Metro. Water Dist. v. City of Bulverde , 156 S.W.3d 79, 90

(Tex. App.--Austin 2004, pet. denied); Juliff Gardens, L.L.C. v. Texas Comm'n on Envtl. Quality ,

131 S.W.3d 271, 276-77 (Tex. App.--Austin 2004, no pet.); City of Waco v. Texas Natural Res.

Conservation Comm'n , 83 S.W.3d 169, 175 (Tex. App.--Austin 2002, pet. denied).

11. See, e.g. , Texas Dep't of Ins., Div. of Workers' Comp. v. Lumbermens Mut. Cas. Co. ,

212 S.W.3d 870, 874-75 (Tex. App.--Austin 2006, pet. denied) (claim that agency's issuance of

advisories inconsistent with statutory requirements was outside of agency's statutory authority);

Sweeney v. Jefferson , 212 S.W.3d 556, 564-65 (Tex. App.--Austin 2006, no pet.) (whether

defendants removed plaques without historical commission approval and without statutory

authority); Texas Mun. Power Agency v. Public Util. Comm'n , 100 S.W.3d 510, 516

(Tex. App.--Austin 2003, pet. denied) (a UDJA action "to interpret the scope of an agency's

statutory authority . . . is sufficient to invoke the trial court's jurisdiction").

12. Relying on language in certain decisions of this Court, Texas Logos suggests that

the UDJA also " waives sovereign immunity when a party seeks interpretation or construction of

an agency's statutory authority." (Emphasis added.) See, e.g., Lumbermens , 212 S.W.3d at 875

("[A] UDJA action 'to interpret the scope of an agency's statutory authority . . . is sufficient to

invoke the trial court's jurisdiction and to waive sovereign immunity.'" (quoting Texas Mun. Power

Agency , 100 S.W.3d at 516 ). TxDOT disputes whether the UDJA waives sovereign immunity for

such claims because (1) as noted, the UDJA cannot independently confer subject-matter jurisdiction

on the trial court, see Texas Ass'n of Bus. , 852 S.W.2d at 444 (interpretation of UDJA as

independently conferring subject-matter jurisdiction would render it violative of article II, section

1 of the Texas Constitution); and (2) the UDJA does not provide a waiver by "clear and

unambiguous language" either explicitly or implicitly. See Tex. Gov't Code Ann. § 311.005

(West 2005), § 311.034 (West Supp. 2006); Tex. Civ. Prac. & Rem. Code §§ 37.001, 37.006(a)

(West 1997); but see Texas Educ. Agency v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994) (because

UDJA contemplated that state government entities would be joined in suits to construe their statutory

authority, it necessarily waived sovereign immunity against award of attorney's fees under the act).

We need not address whether or to what extent the UDJA waives sovereign immunity here

because the type of claims Texas Logos purports to assert--declaratory claims to construe the

statutory authority of a state officer or agency alleged to be exceeding that authority--does not

implicate sovereign immunity. See Cobb v. Harrington , 190 S.W.2d 709, 712 (Tex. 1945). Nor

would the asserted waiver on which Texas Logos relies impact our ultimate disposition. As Texas

Logos acknowledges, the UDJA does not authorize (by sovereign immunity waiver or otherwise)

a claim that seeks to control state action. See Texas Natural Res. Conservation Comm'n v. IT-Davy ,

74 S.W.3d 849, 855-56 (Tex. 2002).

13. We find similarly unpersuasive TxDOT's attempts to characterize Texas Logos's UDJA

claims challenging the logo sign contract as sounding in tort, and barred by sovereign immunity,

merely because Texas Logos pleads that TxDOT's alleged extra-statutory favoritism toward Media

Choice--the basis for its declaratory claims against TxDOT--enabled or included alleged tortious

and fraudulent acts by Media Choice and Brinkmeyer individually.

14. There are two subsection b's in section 391.091.

15. See also Potter Co. Atty's Office v. Stars & Stripes Sweepstakes, L.L.C. , 121 S.W.3d 460,

470-71 (Tex. App.--Amarillo 2003, no pet.) (holding that suit to compel release of seized eight-liners was barred by governmental immunity where machines had been lawfully seized under search

warrant; suit thus "seeks to control the actions of officials acting within their authority and cannot

therefore be maintained without legislative consent"); Commissioner, Tex. Dep't of Human Servs.

v. Trinity Coalition, Inc. , 759 S.W.2d 762, 764 (Tex. App.--El Paso 1988, writ dism'd w.o.j.)

(contractor's suit to enjoin agency from entering into contract with competitor and refusing it bidding

rights based on unresolved audit issues was barred by sovereign immunity; "[h]ere, T.D.H.S. acted

within its own delineated procedure in regulating the terms, bidding, and acceptance of contracts for

day care services").

16. It adds that, contrary to TxDOT's current position, the agency stated in its RFP that the

procurement of the combined contract would be governed by the Purchasing Act. Strictly speaking,

TxDOT's statements in the RFP would not estop it from later disputing the Purchasing Act's

applicability. See State v. Durham , 860 S.W.2d 63, 67 (Tex. 1993). However, Texas Logos suggests

that TxDOT's position in the RFP nonetheless may belie the merits of its current arguments.

17. In addition to its arguments based on section 391.091 and those disputing the applicability

of the Purchasing Act, TxDOT parses through Texas Logos's pleading allegations and disputes

whether "the actions allegedly taken by TxDOT are actually contrary to any of the specific statutes

cited by Texas Logos." Similarly, relying on its construction of these statutes, TxDOT argues that

Texas Logos alleges only that the agency "made the wrong decision" within its statutory authority,

not that it exceeded its authority. See Beacon Nat'l Ins. Co. v. Montemayor , 86 S.W.3d 260, 270

(Tex. App.--Austin 2002, no pet.).

18. Accord City of Seagoville v. Lytle , No. 05-06-01016-CV, 227 S.W.3d 401, 410-12

(Tex. App.--Dallas 2007, no pet. h.) (employing similar analysis in holding that declaratory-judgment, mandamus, and injunctive relief claims alleging termination in violation of local

government code sections 614.022 and 614.023 were barred by governmental immunity to the extent

they sought back pay or back benefits, but not to the extent they sought prospective reinstatement

only); City of Dallas v. Albert , 214 S.W.3d 631, 633, 637 (Tex. App.--Dallas 2006, pet. filed)

(similar analysis in suit alleging failure to pay police officers and firefighters in accordance with

voter-approved pay referendum; suit barred by governmental immunity to the extent it sought back

pay and benefits); City of Dallas v. Martin , 214 S.W.3d 638, 640, 644 (Tex. App.--Dallas 2007,

pet. filed) (same).

19. Texas Logos confirmed during oral argument that it complains only of TxDOT's alleged

past statutory violations, not of any ongoing or future violations.

20. See, e.g. , Eldercare Props., Inc. v. Texas Dep't of Human Servs. , 63 S.W.3d 551, 557

(Tex. App.--Austin 2001, pet. denied), overruled on other grounds by Mega Child Care, Inc. ,

145 S.W.3d at 173 ; Best & Co. v. State Bd. of Plumbing Exam'rs , 927 S.W.2d 306, 309-310

(Tex. App.--Austin1996, writ denied); H. Tebbs, Inc. v. Silver Eagle Distributors, Inc. , 797 S.W.2d

80, 85 (Tex. App.--Austin 1990, no writ); see also Shrieve v. Texas Parks & Wildlife Dep't , 2005

Tex. App. LEXIS 3406 , at *13 (Tex. App.--Austin May 5, 2005, no pet.) (mem. op.).

21. See City of Galveston v. State , 217 S.W.3d 466, 469 (Tex. 2007) ("This heavy

presumption in favor of immunity arises not just from separation-of-powers principles but from

practical concerns. In a world with increasingly complex webs of government units, the Legislature

is better suited to make the distinctions, exceptions, and limitations that different situations require.

The extent to which any particular city, county, port, municipal utility district, school district, or

university should pay damages involves policy issues the Legislature is better able to balance.");

Reata Constr. Corp. , 197 S.W.3d at 375 ("We have generally deferred to the Legislature to waive

immunity because the Legislature is better suited to address the conflicting policy issues involved.")

(citing IT-Davy , 74 S.W.3d at 854 ("We have consistently deferred to the Legislature to waive

sovereign immunity from suit, because this allows the Legislature to protect its policymaking

function.")).

22. We intend no comment regarding Texas Logos's pending appeal of its Brinkmeyer suit.